Have we all been enslaved yet by government overlords and forced to (gasp!) buy mandatory health insurance, as was feared by the 34 states whose lawmakers last February introduced some sort of law or Constitutional amendment to recognize people's God-given rights to not buy into the system we've chosen to use for our health care needs, and as is required by such leading universities as Penn State, which requires international students to carry health insurance because (as they say on their website)
- Health care can be very costly in the US.
- The US does not have a national health care plan.
- Health services may be restricted if you do not have health insurance.
That's a direct quote, by the way. In fact, the Penn State website is very helpful to those who see ObamaCare as the first step towards the black helicopters and ultimately a need for a C. Thomas Howell-led revolution, as it explains what health insurance is:
But are "[p]eople in the US ... financially responsible for their own medical or health care needs?" A study a while back noted that as of 2005, about 23% of people in America had trouble paying their medical bills in the previous year, and concluded that about 27% of all bankruptcy filings had medical bills as their primary form of debt. So 27% of the people in America were not financially responsible for their own debt; those debts would (mostly ) be discharged and would be paid for in the form of lower wages for medical workers, higher insurance premiums for us, or both. (But, keep in mind, if the rate of discharge of medical debts is 27% or so, that in no way prevents the insurance industry from racking up $9,300,000,000 in profits in 2010.)
I digress: this was a look at what's going on with ObamaCare in our fine courts around the country, a look brought up because Illusory/Tenant posted a bit on Obama being a gambling man and being willing to take his fight on ObamaCare to the U.S. Supreme Court. So I thought I'd do a roundup of some rulings on ObamaCare challenges I could find, to let you know whether the law is:
Here is what I found courts saying about the law, and what their sayings about the law say about us:
Judge Gladys Kessler, District Judge, D.C.: February 24, 2011 dismissed a case brought challenging the constitutionality of ObamaCare on grounds that the Commerce Clause allows Congress to regulate purely intrastate activity provided that the activity is (a) economic and (b) rationally related to interstate economy. This case relied heavily on precedent upholding the federal ban on intrastate possession of medical marijuana, and though it's been criticized by many, I think people criticizing it did not read the entire opinion carefully.
Of particular note: Judge Kessler's judicial recognition that health care is not a free market:
If you inevitably must use a good, you do not freely choose to use that good and you do not have a free market. Replace "medical services" with peanut butter and you'll see what I mean:
Any doubt that Congress could regulate peanut butter if everyone in the U.S. eventually was going to have to eat some?
Judge Kessler goes on to note that:
That is, if you have to use peanut butter, and there are laws that require us to supply you peanut butter, then you may ultimately choose not to pay for that peanut butter and might pass the cost on to us, by, say, discharging the cost of that peanut butter in bankruptcy court. Or simply not paying for it and giving a fake name at the E.R. when you go in to get your emergency peanut butter.
Over in Pennsylvania, meanwhile, District Judge Christopher C. Conner suggested in a footnote that maybe Congress could have taxed its way to health care reform, but they didn't, they commerced their way to it, and then reviewed the same cases that Judge Kessler did -- and also a couple of the better-known opinions that have circulated. Judge Conner's opinion is notable for being one of the only judges I can recall, ever, who rejected the (inanely stupid) slippery-slope argument, noting that allowing this Commerce Clause power doesn't mean we have to allow every Commerce Clause power:
We'll get to Florida's fear of broccoli in a moment. Judge Conner's opinion suggested that the ... ahem.. unique jurisprudence of Bush v. Gore continues apace in the conservative justices in our country, making rulings that are either expressly or implicitly limited to just this case:
The undermining of precedent -- stare decisis -- by "conservative" judges is a little-known, little-discussed side effect of the Worst President Ever era, as judges feel more and more free to just decide cases and declare them nonprecedential, and consequently to ignore precedent entirely, is something that will have longer-term effects on our country than I like to think about when I'm already depressed about the fact that a majority of Americans have been persuaded to be against allowing themselves to get affordable health care. So let's leave that for another day.
Judge Conner also believes in good ol' American people and their power to do what's right:
Despite his insistence that this is a unique case that has never been heard before, Judge Conner then goes on to elevate the Third Branch over the First:
That is, if I may paraphrase,
"This is an issue of first impression, from which it follows that the U.S. Supreme Court has never said anything about this issue, which, being of first impression, has never come up before. Precedent shows that the Supreme Court has for 200 years expanded the Commerce Clause power wildly and has only restricted it twice in the past century. But I'm not willing to assume that will continue."
Which is actually a pretty fair judicial ruling, all things considered.
Judge Conner then takes issue with what Judge Kessler decided -- that we'll all someday need health care:
And, sure, the plaintiffs in Judge Conner's case might never use health care services in the future. They may be lucky enough to get hit by a bolt of lightning and disintegrated, making emergency response, ambulance transport, and ER activity unnecessary.
Which is not to say that the health care market is like any other market:
That's Judge Conner again. But remember, there's no guarantee that anyone will actually need health care. I'm sure we can all think of many people in our lives who've never been to the doctor. And, for those people who have never been to a doctor, ever, who are as healthy as a horse, I'm sure you won't ever accidentally get stung by a bunch of bees and nearly die twice in a week.
Judge Conner goes on again to say that Courts must interpret, not create law, and that the precedent he's looked at suggest that the U.S. Supreme Court will never sanction this use of power, and so he can't. But, again, he suggests that Congress can just tax its way out of this problem:
The kind of informed electorate that pays more attention to Netflix price hikes than scientific funding bills. Six of one...
Which brings us to the 420 pages of federal appellate opinions issued by the Fourth, Sixth, and Eleventh Judicial Circuits -- but to be fair, appellate courts use really wide margins; middle school students couldn't pad out their page count any more effectively.
It's the Eleventh Circuit that allayed a national fear that we would all have to eat broccoli:
It's in Spanish, but you get the gist. Responding to the conservatives' arguments that ObamaCare is really a secret way to get rid of all that produce from First Lady Michelle's White House Garden, the Eleventh Circuit said:
Over in the Fourth Circuit, meanwhile, the Court took 40 pages just to list all the parties to the case, before getting around to deciding that Virginia, as a state, didn't have standing to challenge the law at all. That opinion actually dealt with states rights, a concept near-and-dear to conservative's hearts, except when it conflicts with other concepts near-and-dear to their hearts, like shooting immigrants, and the Fourth Circuit concluded that Virginia's attempt to protect its citizens didn't involve anything like valid state legislation, but was merely a state law expressing disapproval of a federal law:
And the Sixth Circuit then chimed in by redefining, yet again, what market we're talking about:
Which is to say, sure, you'll never need health insurance coverage, probably, but in the extremely unlikely case that you develop some sort of medical need, you could (under ObamaCare) just buy yourself some insurance right then and there, pay one premium, and get covered.
Sort of a deathbed conversion -- which makes great economic sense. When I had my heart attack last year, I could have used my cell phone on the way to the hospital to purchase health insurance, and then been billed for the first premium after my discharge from heart surgery -- and under ObamaCare's lawfully-enacted regulations (regulations conservatives concede Congress had the power to enact) the insurance company could not have denied me coverage for, or charged me more to cover the heart attack I was having as I applied for coverage.
Sweet.
I'm kind of a sucker for having insurance, the way I see it.
The Sixth Circuit, too, rejected the Rush-ian (that's Rush, the rock group, not Rush, the overweight drug addict) idea that not buying something isn't activity: it's true that if you choose not to decide you still have made a choice, and it's also true, as the Sixth Circuit noted, that if you choose not to take part in a market, that's market activity.
(Also, remember: You don't actually get to not take part in the health care market, unless you are the superhealthy plaintiffs in Judge Conner's case. They are from Krypton and will never need health care.)
So there you have it: the law is constitutional, unless it's not, unless it's the case that the states challenging the law are simply resurrecting old Andrew Jackson populism
and it really all boils down to this:
If you believe that someday, all human beings will need medical care, then ObamaCare is constitutional because ultimately all human beings will take part in the medical care market, and some of them will, if not insured, become free riders, and Congress is allowed to eliminate that problem.
But, if you believe -- as one court has apparently found -- that there is a superclass of people who will never ever need health care as long as they live and therefore should not be subjected to the burden of having to pay for health care they will never need, a class of people for whom health insurance is as unnecessary as that extended warranty protecting their toaster that Best Buy tried to foist off on them, then ObamaCare is completely unjust and treated the Constitution like something you'd find on the bottom of your shoe.
Surprisingly, or not, the latter group is winning this debate. Which means that on the whole, Americans, who largely appear in public like this:
Imagine that they in fact appear in public like this:
A large group of people (both sick and healthy) pays an established amount of money for some protection against future health costs. Their money is put together in one fund, called an "insurance pool." When members of the fund get sick or injured and incur medical costs, money is taken from this insurance pool to pay for part or all of their costs. People in the US are financially responsible for their own medical or health care needs.
But are "[p]eople in the US ... financially responsible for their own medical or health care needs?" A study a while back noted that as of 2005, about 23% of people in America had trouble paying their medical bills in the previous year, and concluded that about 27% of all bankruptcy filings had medical bills as their primary form of debt. So 27% of the people in America were not financially responsible for their own debt; those debts would (mostly ) be discharged and would be paid for in the form of lower wages for medical workers, higher insurance premiums for us, or both. (But, keep in mind, if the rate of discharge of medical debts is 27% or so, that in no way prevents the insurance industry from racking up $9,300,000,000 in profits in 2010.)
I digress: this was a look at what's going on with ObamaCare in our fine courts around the country, a look brought up because Illusory/Tenant posted a bit on Obama being a gambling man and being willing to take his fight on ObamaCare to the U.S. Supreme Court. So I thought I'd do a roundup of some rulings on ObamaCare challenges I could find, to let you know whether the law is:
(a) unconstitutional,
(b) seriously unconstitutional,
(c) what, are you kidding me? This law took the Constitution out back and pistol whipped it for a while before killing it. or
(d) possibly maybe an okay law?
Here is what I found courts saying about the law, and what their sayings about the law say about us:
Judge Gladys Kessler, District Judge, D.C.: February 24, 2011 dismissed a case brought challenging the constitutionality of ObamaCare on grounds that the Commerce Clause allows Congress to regulate purely intrastate activity provided that the activity is (a) economic and (b) rationally related to interstate economy. This case relied heavily on precedent upholding the federal ban on intrastate possession of medical marijuana, and though it's been criticized by many, I think people criticizing it did not read the entire opinion carefully.
Of particular note: Judge Kessler's judicial recognition that health care is not a free market:
Here, Congress enacted § 1501 based on its understanding that (1) all individuals inevitably consume medical services and (2) when they do consume those services, the way in which they pay for them substantially affects market prices.
If you inevitably must use a good, you do not freely choose to use that good and you do not have a free market. Replace "medical services" with peanut butter and you'll see what I mean:
Here, Congress enacted § 1501 based on its understanding that (1) all individuals inevitably consume peanut butter and (2) when they do consume that delicious, delicious peanut butter, the way in which they pay for them substantially affects market prices.
Any doubt that Congress could regulate peanut butter if everyone in the U.S. eventually was going to have to eat some?
Judge Kessler goes on to note that:
such a choice is not simply a decision whether to consume a particular good or service, but ultimately a decision as to how health care services are to be paid and who pays for them.
That is, if you have to use peanut butter, and there are laws that require us to supply you peanut butter, then you may ultimately choose not to pay for that peanut butter and might pass the cost on to us, by, say, discharging the cost of that peanut butter in bankruptcy court. Or simply not paying for it and giving a fake name at the E.R. when you go in to get your emergency peanut butter.
Over in Pennsylvania, meanwhile, District Judge Christopher C. Conner suggested in a footnote that maybe Congress could have taxed its way to health care reform, but they didn't, they commerced their way to it, and then reviewed the same cases that Judge Kessler did -- and also a couple of the better-known opinions that have circulated. Judge Conner's opinion is notable for being one of the only judges I can recall, ever, who rejected the (inanely stupid) slippery-slope argument, noting that allowing this Commerce Clause power doesn't mean we have to allow every Commerce Clause power:
In this respect, I part company with the Florida district court...and the majority in the Florida circuit court...that, if affirmed, an expanded commerce power would open a Pandora’s box of nefarious mandates limited only by the confines of a legislative majority. The consequences of an expanded commerce power are not so dire.
We'll get to Florida's fear of broccoli in a moment. Judge Conner's opinion suggested that the ... ahem.. unique jurisprudence of Bush v. Gore continues apace in the conservative justices in our country, making rulings that are either expressly or implicitly limited to just this case:
Third, the truly unique factual circumstances of this case would necessarily render any holding limited.
The undermining of precedent -- stare decisis -- by "conservative" judges is a little-known, little-discussed side effect of the Worst President Ever era, as judges feel more and more free to just decide cases and declare them nonprecedential, and consequently to ignore precedent entirely, is something that will have longer-term effects on our country than I like to think about when I'm already depressed about the fact that a majority of Americans have been persuaded to be against allowing themselves to get affordable health care. So let's leave that for another day.
Judge Conner also believes in good ol' American people and their power to do what's right:
Finally, an informed electorate would not countenance frivolous mandates.That will be great, when we have an informed electorate. We have an electorate that voted for "Senator" Ron Johnson, who believes that sunspots were behind global climate change.
Despite his insistence that this is a unique case that has never been heard before, Judge Conner then goes on to elevate the Third Branch over the First:
As set forth below, this Court’s ratio decidendi is straightforward: Heretofore, the Supreme Court has never sanctioned, under the auspices of the Commerce Clause, the enactment of a broad scale economic mandate in anticipation of a probable but uncertain future transaction. The Supreme Court’s Commerce Clause jurisprudence does not lend itself to such an expansive interpretation. Until the Supreme Court interprets the commerce power to permit these anticipatory mandates, I am bound by stare decisis to conclude that Section 5000A is unconstitutional.
That is, if I may paraphrase,
"This is an issue of first impression, from which it follows that the U.S. Supreme Court has never said anything about this issue, which, being of first impression, has never come up before. Precedent shows that the Supreme Court has for 200 years expanded the Commerce Clause power wildly and has only restricted it twice in the past century. But I'm not willing to assume that will continue."
Which is actually a pretty fair judicial ruling, all things considered.
Judge Conner then takes issue with what Judge Kessler decided -- that we'll all someday need health care:
Similarly, Congress may lawfully regulate the interstate market for health insurance and health services, but Congress cannot require individuals who choose not to purchase health insurance or individuals who are not currently seeking or receiving services in the health care market to purchase health insurance in order to stabilize the health insurance market. Congress cannot mandate or regulate in anticipation of conduct that may or may not occur in the future.The "conduct that may or may not occur in the future" is using health care services.
And, sure, the plaintiffs in Judge Conner's case might never use health care services in the future. They may be lucky enough to get hit by a bolt of lightning and disintegrated, making emergency response, ambulance transport, and ER activity unnecessary.
Which is not to say that the health care market is like any other market:
It is clear to the court that the health care services market is unique. In other markets, including other insurance markets, when an individual suffers a loss or is in need of a commodity or service (such as food, transportation, or housing) there is no obligation that society compensate for that loss or provide the commodity or service without advance payment. In the health care services market, however, against the backdrop of state and federal laws ...individuals can and do receive medical treatment regardless of their ability to pay.
That's Judge Conner again. But remember, there's no guarantee that anyone will actually need health care. I'm sure we can all think of many people in our lives who've never been to the doctor. And, for those people who have never been to a doctor, ever, who are as healthy as a horse, I'm sure you won't ever accidentally get stung by a bunch of bees and nearly die twice in a week.
Judge Conner goes on again to say that Courts must interpret, not create law, and that the precedent he's looked at suggest that the U.S. Supreme Court will never sanction this use of power, and so he can't. But, again, he suggests that Congress can just tax its way out of this problem:
nothing prohibits Congress from redoubling its efforts and invoking another enumerated power, such as the Tax and Spending Clause, ...to address the uninsured free rider issue. If...the problem lies in Congress’s inability to secure majority support for such action ... then perhaps the crisis is not sufficiently acute for appropriate congressional resolution or, alternatively, there are less burdensome options yet to be pursued. This is a conundrum that is Congress’s to resolveYes, if there's no congressional solution everyone agrees on, then the crisis doesn't actually exist. That's what happened with the increase in the debt ceiling, and the extension of unemployment benefits, and the reauthorization of autism funding, right? There was no crisis at all and that's why Congress delayed acting, because Congress always moves with alacrity to respect the views of an informed electorate.
The kind of informed electorate that pays more attention to Netflix price hikes than scientific funding bills. Six of one...
Which brings us to the 420 pages of federal appellate opinions issued by the Fourth, Sixth, and Eleventh Judicial Circuits -- but to be fair, appellate courts use really wide margins; middle school students couldn't pad out their page count any more effectively.
It's the Eleventh Circuit that allayed a national fear that we would all have to eat broccoli:
It's in Spanish, but you get the gist. Responding to the conservatives' arguments that ObamaCare is really a secret way to get rid of all that produce from First Lady Michelle's White House Garden, the Eleventh Circuit said:
Thus, for example, in arguing that Congress could force us to purchase broccoli, the plaintiffs necessarily reason as follows:That, unfortunately, is from the dissent. The majority, in 207 pages, found the "individual mandate" unconstitutional, but didn't strike down the whole law. I didn't have time to read the whole thing today, so I don't know yet whether the majority found that Michelle Obama can sneak into your house and night and stuff broccoli into your pants. (see also: Newt Gingrich's Presidential Slash Fic).
everyone is a participant in the food market;
if people buy more broccoli, they will eat more broccoli;
eating more broccoli will, in the long run, improve people’s health;
this, in turn, will improve overall worker productivity, thus affecting our national economy.
Such reasoning violates the cautionary note that [was issued in prior cases.]
Over in the Fourth Circuit, meanwhile, the Court took 40 pages just to list all the parties to the case, before getting around to deciding that Virginia, as a state, didn't have standing to challenge the law at all. That opinion actually dealt with states rights, a concept near-and-dear to conservative's hearts, except when it conflicts with other concepts near-and-dear to their hearts, like shooting immigrants, and the Fourth Circuit concluded that Virginia's attempt to protect its citizens didn't involve anything like valid state legislation, but was merely a state law expressing disapproval of a federal law:
By contrast, the VHCFA regulates nothing and provides for the administration of no state program. Instead, it simply purports to immunize Virginia citizens from federal law. In doing so, the VHCFA reflects no exercise of "sovereign power," for Virginia lacks the sovereign authority to nullify federal law.Nice to see that 179 years later, we're still fighting the Nullification battle. Again.
And the Sixth Circuit then chimed in by redefining, yet again, what market we're talking about:
Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs. Thus, set against the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation on the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services.In a footnote, the Court said "self-insuring" is actually risk-retention. Which, the Court noted, created incentives for people like the plaintiffs in Judge Conner's case to hold off buying insurance until the absolute last minute:
Furthermore, Congress had a rational basis for concluding that leaving those individuals who self-insure for the cost of health care outside federal control would undercut its overlying economic regulatory scheme. Congress found that without the minimum coverage provision, the guaranteed issue and community rating provisions would increase existing incentives for individuals to delay purchasing health insurance until they need care.
Which is to say, sure, you'll never need health insurance coverage, probably, but in the extremely unlikely case that you develop some sort of medical need, you could (under ObamaCare) just buy yourself some insurance right then and there, pay one premium, and get covered.
Sort of a deathbed conversion -- which makes great economic sense. When I had my heart attack last year, I could have used my cell phone on the way to the hospital to purchase health insurance, and then been billed for the first premium after my discharge from heart surgery -- and under ObamaCare's lawfully-enacted regulations (regulations conservatives concede Congress had the power to enact) the insurance company could not have denied me coverage for, or charged me more to cover the heart attack I was having as I applied for coverage.
Sweet.
I'm kind of a sucker for having insurance, the way I see it.
The Sixth Circuit, too, rejected the Rush-ian (that's Rush, the rock group, not Rush, the overweight drug addict) idea that not buying something isn't activity: it's true that if you choose not to decide you still have made a choice, and it's also true, as the Sixth Circuit noted, that if you choose not to take part in a market, that's market activity.
(Also, remember: You don't actually get to not take part in the health care market, unless you are the superhealthy plaintiffs in Judge Conner's case. They are from Krypton and will never need health care.)
So there you have it: the law is constitutional, unless it's not, unless it's the case that the states challenging the law are simply resurrecting old Andrew Jackson populism
and it really all boils down to this:
If you believe that someday, all human beings will need medical care, then ObamaCare is constitutional because ultimately all human beings will take part in the medical care market, and some of them will, if not insured, become free riders, and Congress is allowed to eliminate that problem.
But, if you believe -- as one court has apparently found -- that there is a superclass of people who will never ever need health care as long as they live and therefore should not be subjected to the burden of having to pay for health care they will never need, a class of people for whom health insurance is as unnecessary as that extended warranty protecting their toaster that Best Buy tried to foist off on them, then ObamaCare is completely unjust and treated the Constitution like something you'd find on the bottom of your shoe.
Surprisingly, or not, the latter group is winning this debate. Which means that on the whole, Americans, who largely appear in public like this:
Imagine that they in fact appear in public like this:
