Health care bills

[gunslnger.livejournal.com]

If you don't want to take the opinion of some random LJ people, how about that of an actual respected constitutional lawyer?

http://michaelconnelly.viviti.com/entries/general/the-truth-about-the-health-care-bills

Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.

Or even a senior legal analyst with the ACLU? (Yes, he has a couple other guys writing the essay with him.) Sorry, it was late when I read this and I misread it. Still, I don't see anything particularly wrong with the article, so again, address the points, not the messengers.

http://online.wsj.com/article/SB10001424052748703278604574624021919432770.html

America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.

I predict at least 3 people dismissing the essay because it's from the Wall Street Journal, someone will claim that Mr. Connelly is a hack or something, and 5 or more will just chime in about how much we need health care reform no matter what the bills actually say. If we're lucky, there might be 2 people that actually try to counter the actual points presented.

Comments

[inibo.livejournal.com]

But what about the children?

[kardashev.livejournal.com]

Or even a senior legal analyst with the ACLU?

Actually, Mr. Klukowski is with the right wing ACRU (http://en.wikipedia.org/wiki/American_Civil_Rights_Union) and not the left leaning ACLU (http://en.wikipedia.org/wiki/American_Civil_Liberties_Union). Just thought I'd point that out for the sake of accuracy.

[annainthecity.livejournal.com]

Accuracy? What's this accuracy you speak of? Do we do that here?

[kardashev.livejournal.com]

Occasionally, yes. ;)

[gunslnger.livejournal.com]

Bah, sorry. I read that late at night. I'll fix the post.

[kardashev.livejournal.com]

No worries.

[zentiger.livejournal.com]

So, either health insurance is a commodity, and thus under the authority of the legislative branch, or it is not a commodity, and thus not something the market can deal with. If health insurance is a commodity, it is not unconstitutional for the government to require that all health insurance plans offered by corporations which have offices in more than one state comply with whatever the legislature comes up with. If health insurance is not a commodity, then we are owed an explanation of how it is that corporations are able to sell something that is not a thing able to be sold. These are your options. I assume that you will not choose the former; if my assumption is correct, then you owe us an explanation of how something that cannot be sold - a non-commodity - can be, in fact, sold.

I look forward to what will undoubtedly be a bumbling attempt to show that health care is in fact a quasicommodity that can be sold but is not therefore subject to the standard interstate commerce authority of Congress.

Oh, and by the way: The WSJ opinion page is, for all intents and purposes, a wholly owned subsidary of FOX "news", Connelly wouldn't know an argument if it mugged him in an alley, and our current health care system was obviously designed by either thieves or morons, possibly both.

[malasadas.livejournal.com]

Well, you got further into it than I did.

I've lost all patience for arguments predicated on this bill being a "take over" of health care.

[badlydrawnjeff.livejournal.com]

So, either health insurance is a commodity, and thus under the authority of the legislative branch, or it is not a commodity, and thus not something the market can deal with. If health insurance is a commodity, it is not unconstitutional for the government to require that all health insurance plans offered by corporations which have offices in more than one state comply with whatever the legislature comes up with.

Where does the Constitution separate based on commodities?

I look forward to what will undoubtedly be a bumbling attempt to show that health care is in fact a quasicommodity that can be sold but is not therefore subject to the standard interstate commerce authority of Congress.

How does mandating health care equate to regulating it?

[gunslnger.livejournal.com]

If health insurance is not a commodity, then we are owed an explanation of how it is that corporations are able to sell something that is not a thing able to be sold.

Are you calling a service a commodity?

The WSJ opinion page is, for all intents and purposes, a wholly owned subsidary of FOX "news"

1. Bullshit
2. Who cares?

Connelly wouldn't know an argument if it mugged him in an alley

Prove it.

our current health care system was obviously designed by either thieves or morons, possibly both.

Yes, they're called politicians.

[malasadas.livejournal.com]

1) Mr. Connelly claims to have read the entirety of the bill and that all the claims against it are true and even worse.

And as he rattles off what the bill will do, he fails to provide a single reference to the bill with which an interested reader can go and examine it for him or herself.

Lovely. So I won't be trying to counter his points as he as he has left me with no choice but to sift through the entire bill trying to divine which language he is using to support his claims -- assuming he did that at all himself.

2) We know this philosophical position. We also know its converse. Asserting that one of the most dynamic and productive debates about our system of government only exists in one of them is not an actual argument. It's a statement of position -- which is fine in and of itself but it does not settle the issue except for those already convinced. The final paragraph of the editorial is pure hyperbole, however -- most sweeping and intrusive federal program ever? That tells me me that they wrote this to gin up the choir, not to get anyone else to consider alternative views.

Their first objection is on the commerce clause basis -- a valid argument to make but, again, hardly settled on this matter. This is a matter of law for a court. Their second objection is not a constitutional matter at all -- it's procedural. And they are right to call it stinky, but if they mean to imply it is not precedented then I call shenanigans. Their final objection is actually intriguing -- I'd be interested to see someone actually explain how the cited cases are specifically on point. Editorials do a terrible job of encompassing complex legal arguments.

[thies.livejournal.com]

4 out of 9 supreme court judges tend to disagree with whatever, my hat is a cat, your argument is invalid.

I'm probably not one of those 2 people

[fizzyland.livejournal.com]

So is this the first example of Constitutional abuse the author has found with our modern federal government?

[dwer.livejournal.com]

he probably thinks it's invalid, since it wasn't written down in the Constitution.

[eracerhead.livejournal.com]

Legal opinions are like assholes. Every lawyer has one.

Personally I would rather pay taxes for healthcare than be forced under penalty of law to buy some insurance company's crappy product. That is equivalent to forcing everyone to buy a cell phone plan at any price as determined by cell phone companies. A mandated payment based on the mere fact that one is a living citizen is for all intents and purposes a tax, and taxes must be paid to governments, not private corporations as we will have absolutely no say as to what they can charge.

Here's a plan. Drop the age restriction on medicare. Voila! Private insurance can then be optional to provide for things that medicare doesn't and we can shift the debate as to what medicare actually *should* cover. This may be the dreaded R word, but healthcare is, must, and always shall be rationed to some extent. Do we really need to be paying for all these power scooters?

[mijopo.livejournal.com]

Legal opinions are like assholes. Every lawyer has is one.

There fixed it for you.

[weswilson]

To begin with, much of what has been said about the law and its implications is in fact true, despite what the Democrats and the media are saying. The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants, free abortion services, and probably forced participation in abortions by members of the medical profession.

The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.

Sweet jesus... this guy expects to be taken seriously after this crap?

[malasadas.livejournal.com]

My favorite part is when he cites no sections of the bill. Really nifty.

[a-new-machine.livejournal.com]

The first one misuses US v. Lopez. The argument of the majority in Lopez was that non-economic activity is outside Congress's regulating authority (with an exception that doesn't matter that would allow it to regulate non-economic activity, established in Gonzales v. Raich). The purchase of health insurance is clearly economic activity, sharing a "nexus" with economic exchange (to borrow the majority's wording). That being established, Congress can exercise its plenary power over commerce without any additional justification.

"Cash for cloture" is the weakest argument (stuff I learned in my writing class last semester: open and close with your strongest argument, stick your worst one in the middle). Spending is another plenary power and not easily challenged. The idea that you have to spend equally on every state is kinda ridiculous. Targeted spending happens all the time. Pork has never been found unconstitutional under the general welfare clause.

Its argument on the basis of Printz and NY v. US is perhaps the strongest. Under those decisions, Congress cannot "commandeer" state branches to enforce their rules. They need to provide incentives, commonly money-based incentives. The most common example is highway spending, which is based on setting speed limits at 65 MPH or below. NY v. US is the most on point (Printz dealt with commandeering the executive branch, while NY v. US was about commandeering the legislative branch of states). NY v. US dealt with two unconstitutional options: either do A, which is unconstitutional for us to require on its own, or do B, which is also unconstitutional on its own. This seems to deal with a choice between something that would be unconstitutional to require (specific legislation) and something that's perfectly constitutional (federal preemption of state regulation). That's exactly analogous to highway spending. It's illegal for Congress to say "you need to set a 65 max speed limit," but legal to say "If you do not set a max speed limit of 65, we are going to exercise our constitutional power to cut spending to your state for highways." Same here. Illegal to say "you must establish these policies," but probably legal to say "if you do not establish these policies, we'll exercise our constitutional authority to preempt you." Still, there's no SCUSA precedent on point about preemption specifically, so there'll likely be some litigation.

So I don't see much merit to their legal arguments in that first piece. It reads well if you broad-strokes the precedent he cites, but the particulars look pretty sound.

The other article is basically useless, as he refuses to cite specific clauses in the bill. I'd have to analyze on his word, which does seem to suggest 4th amendment issues (but also seems to overstate the issue, as I've heard nothing about abrogation of doctor-patient privilege, which would probably be a big deal to physicians' groups). His 5th amendment argument is just wrong (do I get a hearing when I'm denied the child tax credit because I don't have kids? does every non-parent get one? How about when my tax rate changes because I make more money? Ridiculous), and the 9th and 10th amendments are mutable based on Congress's choice to regulate within its plenary powers.

Yeah, this is just propaganda, so far as I can tell. Misrepresentation of modern legal theory abounds.

[a-new-machine.livejournal.com]

Er, whoops. I opened those in reverse. So the first one was the "other article" I talked about at the end there. The WSJ one was the one I went into more depth on.

[dwer.livejournal.com]

this is pretty awesome, because not only are your predictions all wrong, the opinions you cite have been debunked as well.

[gunslnger.livejournal.com]

The "prediction" was intended to get people to make it not happen. But you still fail for making a comment that doesn't address the post.