Saturday, April 7, 2012

Health Care The Issue Redefined

After all the maddening analogies that often seem irrelevant let us focus on the crux of the issue, it should be how to cut healthcare cost so we could get more and better coverage for the money spent. It is unfortunate that if this law is not overturned in a big way the real and important issues behind it will most likely never be addressed.  The issue is masked by noise, I heard one supporter of Obamacare say, "I guess we could just let people die in the streets but then the conservatives would probably complain about the cost of collecting the corpses." another said "I think it rather tragic that a five/four Supreme Court decision could overturn the wishes of  Congress."

Many people push this law forward based on Congress using power rooted in the commerce clause and a case dating back to 1942. The case found failing to sell wheat into the interstate commerce still impacted interstate commerce, thus a farmer was subject to certain agricultural rules concerning planting etc, over the years the broad use of this clause has helped to provide standards for interstate commerce. Justice Kennedy in his questions looked for a balance between the precedent of  the commerce clause and concerns about whether Congress had gone too far. Scalia, Thomas, Alioto and possibly Roberts - don't appear to be constrained by this precedent and want to return to the pre Wickard era, to many this is seen as an attack on seventy years of precedent. But is that necessarily wrong? If the law is struck down based upon a new constrained view of the commerce clause it may have the dramatic effect of  limiting Congress.

I can't think of any other area of the economy or society where having the federal government order every citizen to buy a good from a private provider seems like a reasonable solution to a problem. I think there's actually a slight window of opportunity in the question Justice Kennedy posed to solicitor general Virelli when he asked, "Can you identify any limits on the commerce clause?" At various points in the oral arguments yesterday, justices raised the concern that if the government can require people to buy health insurance, it could also require people to buy other goods on the private market; specifically mentioned were broccoli and cell phones. It's a slippery slope, the judges were saying. What principle could limit Congress's power to make people buy things?

One such limiting principle might be that a measure had to be "necessary" as part of legislation to achieve a major, legitimate public good. This should be sufficient to rule out idiotic analogies  such as requiring Americans to buy broccoli or cell phones. What major public goal that could be reasonably addressed by a program which would entail the government ordering people to buy broccoli? Increasing the public's intake of vitamin B so as to reduce public health-care costs and improve public health? Mandatory private broccoli purchases would be completely ineffective at achieving this goal; the government might order people to buy broccoli, but it can't force them to eat it. It would obviously be more effective and constitutional to subsidize broccoli so that those who do have some inclination to eat broccoli, rather than Big Mac's, would be more likely to do so. Ordering people to buy broccoli would be an arbitrary, irrational and ineffective means to accomplish any public health goal, and for that reason such a law could be ruled unconstitutional.

Take this to the next level and imagine that the government wanted to enhance public safety by ensuring that all victims or witnesses of crimes could immediately call 911. Obviously many people can't afford cell phones, so the government would have to provide subsidies for those who couldn't, while also means-testing to ensure the subsidies aren't handed out to people who would have bought cell phones anyway. This starts to seem possibly reasonable. But does universal cell-phone possession really enhance crime reporting? That seems doubtful; so many people already own cell phones that the number of witness reports seems unlikely to rise by much if some of the few people who don't yet own them acquire them. And, as with the broccoli example, requiring people to buy cell phones doesn't mean the federal government has the power to require people to carry them.

Requiring people to buy things besides health insurance on the private market does not seem to be a reasonable or necessary means to achieve any objective. Imagine, for example, that America decided to eliminate its standing army and go back to a model of pure territorial defense based on a "people's war" guerrilla strategy, with required militia service for all able-bodied citizens. This seems pretty unlikely, but having made that decision, would it be constitutional for the government to order everyone subject to militia service to buy an assault rifle on the private market, providing subsidies for those who can't afford one? This seems like it might be a reasonable means to achieve a legitimate public goal. It's much more likely that the government would simply buy everyone a rifle for reasons of standardization, and you'd have to allow exceptions for reasons of religion or conscience, just as we do with the draft. But in principle is ordering everyone to buy a rifle doesn't seem like the way to achieve the goal of national defense.

We all know that there is no escaping the grim reaper, and little to no way to collect against the dead if they have no assets to pay for burial, cremation, etc. Therefore mandating people buy burial insurance makes sense. Consider the fabled broccoli, gym, and junk food examples, if you are out of shape you increase your chances of getting a major disease and forcing costs on the system. Once Congress has the power to regulate in an area it is more or less unfettered what is to prevent them from mandating you eat broccoli, go to the gym and banning junk food? While the Constitution was designed to limit government power those supporting Obamacare are now desperately looking for ways to prove that we simply can not survive without this law... Because we all know that until today we've been struggling and dying on the streets for not having a mandated insurance. Great, what's next, will government also mandate me to buy '' food insurance" or "clothe insurance" etc.?  This is why the law may not pass the litmus test of being constitutional.

 Another interesting objection to Obamacare is that it is a boondoggle to increase the profits of private companies and their owners and that it should not have been adopted in preference to a single-payer system covering "basic healthcare." A single-payer system could achieve many of the goals of the healthcare bill by cutting cost through eliminating wasteful duplication, bureaucracies, and paperwork. The idea wouldn't eliminate insurance or pharmaceutical companies, they would continue to sell extensive types of "optional" coverage. A single payer program would appear constitutional. Many argue there are "better" solutions than Obamacare, but that is not the legal standard for what is constitutional. Deciding the better, or the workable, is the job of the legislature, but some suggest that this law is an irrational means of achieving it's objective.

Healthcare is ridiculously expensive because many people have convinced themselves of  three things: The answers for good health outcomes rest with pills and procedures rather than good diet and exercise. Death at late stages of life is some strange, recent development in human history which justifies and necessitates extreme, exorbitant payouts to delay it for every possible last second. Just because we can does not mean we should. And last but not least mixing all the myriad of "health care" transactions that result from the just mentioned concepts with health insurance as originally conceived to protect a person from unforeseeable, catastrophic events like an accident is a good idea. Surely there is a legitimate and rational place for government in ensuring access to basic levels of care, but we've lost our bearings about what "basic levels of care" should mean, and we know what happens to costs when free government money flows into a system, hello college tuition!

It is not for lack of spending, Americans spend more on healthcare then people in other developed countries with very poor results. Our system allows insurance companies not only stick their nose into every interaction you have with a health care provider, they get to take a large cut as well. It has become virtually impossible to find a modestly-priced traditional insurance plan that protects a person from unforeseeable catastrophic accidents while letting them own responsibility for the accumulation of their lifestyle choices over time, thus differentiating the healthy  70-something marathon runners from a fat slob suffering from self induced diabetes. Extending medicare to give the most "basic coverage" to everyone would require some rationing of service to contain cost, but this is already being done. It would allow us to discontinue Medicaid while meeting our goal of basic healthcare for all citizens. Other wise let us be honest and made it lawful to turn the uninsured and poor away from the emergency rooms of our nations hospitals untreated.

Point me to a conservative who resolutely opposes Obamacare, but thinks it is constitutional? There are probably still a few out there but I'm not hearing much from them today. Nor am I hearing from any liberals who support universal health insurance, but think the mandate is unconstitutional. Partisan identification is overwhelmingly the easiest means of determining where anyone will come down on any question with a political overtone, on  the street, in Congress, and to all appearances on the Supreme Court. Many supporters of more government have become fear mongers saying if Congress can not act by invoking a broad reading of the Commerce Clause, the slow national consensus that resulted in Medicare, Social Security, civil rights, protecting minorities, and women may dissolve. These fear mongers claim that the  notion that America is a nation - forged in the Civil War - and not a collection of states, may also be at risk.

While nothing prevents states from trying to create individual mandates like Massachusetts did, the federal government was supposed to be a government of limited and enumerated powers. I hope that the Supreme Court will overturn this power grab by the federal government, it is sad that our republic has strayed so far from our core principles as drafted in the constitution. What can the government force you to do or buy if the mandate is upheld, what are the limits, this is what terrifies many Americans, there is simply no federal action that can't then be justified by simply claiming it affects interstate commerce. Some people seem to have a hard time grasping, that the Constitution is not intended to be a guideline for government to do good, it's a guideline for the people to prevent the government from doing bad. Again let us return to the crux of the issue, how do can America cut healthcare cost and get more and better coverage for the money spent.

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