Friday, February 11, 2011

Another item from public radio...

Caught parts of interviews with people on both sides of the question regarding the constitutionality of Obamacare while I was driving the other day.

The fragment that I heard of the argument for unconstitutionality amounted to this:

"It has been argued that mandating health insurance for all citizens is simply part of the federal government's authority to regulate interstate commerce.  The federal government cannot step in to require everyone to buy health insurance, regardless of whether it would be an interstate activity or not, because it crosses a line into something that is not regulation of commerce at all."

Basically, the government can establish requirements and restrictions on the behavior of commerce, things or ways in which one can or cannot sell or buy.  We usually think of things like requiring safety or nutritional labels on the packaging.  Where the argument says Obamacare is in violation of the Constitution is the fact that this new law requires you to participate.  This isn't something like the draft.  This isn't even something like where you're obligated to pay taxes to maintain the Eisenhower Highway System in states you never travel in.  This is the federal government saying that not only does it have the authority to regulate the terms of commerce and even raise funds to maintain or enhance the flow of commerce, it has the authority to force you to buy a product from a business whether you want to or not. 

This is not the case with any other business, industry, or commodity (some service industries do receive funding, but we're not obligated to patronize them), and it sets a dangerous precedent.  I may elaborate someday after I've ruminated on the ramifications a bit more, but I'll leave you to worry about what is implied.

The argument supporting Obamacare, on the other hand--the ones saying this will not amount to a congressional encroachment on personal sovreignty--went something like this:

"The 'health care reform law goes beyond commerce regulation' argument misses one thing:  that the Constitution grants the Legislature the power 'To make all Laws which shall be necessary and proper for carrying into Execution' the various things that Legislature otherwise already has the power to do, as provided for by the Constitution.  This is simply a case of Congress establishing what needs to be done in order for it to implement Obamacare."

The problem I see is that it assumes that Obamacare is within the rights of the government in the first place.  It's like saying "Well, if we let citizens have guns, it would really be dangerous for our SS troops when they come to search their houses for subersive materials and other contraband."  You're trying to solve the wrong problem, buddy.

The quote in the pro-Obamacare argument comes from the end of Section 8 of Article I of the Constitution.  No where in the Constitution does it give Congress the power, in particular or in the abstract, to force health insurance on people who neither want nor need it.  Unless you count the "provide for the common good" phrase in the preamble, but this isn't the common good, this is trying to provide for the particular good of a morass of demographics by playing Robin Hood.  Again, not saying we don't have an obligation to help the needy, but strongarming the solvent to participate in system that is going to be inefficient and insensitive to real needs is doing evil in the hope that some good may precipitate from it along the way.

Oh, that was another lemma in the pro- argument:  "If people aren't forced to participate, they won't get insurance until they need it or they'll just go to the emergency room and we all have to pay for it, and because no one is paying into the pools, it will bankrupt the system."  One, why don't we let the insurance companies figure out how to run their own businesses instead of having a bunch of people who don't know the industry try to anticipate every eventuality?  Right now, people aren't forced to buy health insurance, but most of them still get it, and companies already make provisions for taking on customers who are greater risks.  A lot of them do get it as a benefit through work and simply don't fight to get a higher salary instead (and yes, that is an option, although not every employer is open to it).  The medical bills for my dad's cancer treatments and hospital stays broke seven figures, and subtracting the out of pocket was still more than my parents ever paid in.  Early in the December my dad died in, my mom bought two life insurance policies on my dad, not hiding the fact that he was in the last stages of cancer, with one of them taking effect immediately and the other not until sometime after Christmas.  He died before the second policy kicked in but the first one kept my mom in a good financial place.  Do you really think the bean counters and strategic planners hadn't made contingencies for this kind of thing their bread and butter?

My mom was really fortunate in that she knew the business, but in most cases people won't be able to use insurance as a payment plan without payments because insurance companies figures all this out a long time ago.  Adding a level of bureaucracy isn't going to make them better at their jobs.

Insurance people know their business.  If we're only talking money--which is the gist of this sidebar argument--the insurance providers covered sigmoidoscopies for my dad but not full colonoscopies, which would have caught his cancer in time, because it is apparently more cost effective to skimp on thousands of colon examinations a day and shell out a million dollars for the occasional patient who ends up finding something metastatic in the ascending colon.

Not that I like it, but there it is.  People don't get to make a lot of million dollar mistakes and keep their jobs, at least outside of boardrooms.

Point is, people who pay taxes and who have insurance are already supporting people who don't.  It has its problems, some of which are oriented around the level of care really necessary in the attempt to keep someone healthy or alive and the cost of insurance, not just the fact that some people try to do without, but the feds aren't forcing anyone into the game and the whole health care industry hasn't already imploded.  Considering that the problems we have are solvable by other means that more specifically address the particular problems that exist, we don't need to sic the government on reducing the ability to opt out to somewhere between infeasible and impossible.  The corruption can be minimized, if not completely eliminated, by addressing the corruption; not by saying I don't effectively have the right to live my life as I see fit because someone--and maybe not anyone involved--might think it wouldn't be fair to someone else whom the government is trying to help because he doesn't have some of the options in life that I do.

That's something I want to emphasize, as an aside.  Not every crisis, real or imagined, requires the intervention of a government program.  After a while, it stops looking like we have a specific department to fix this and an agency to handle that and a czar to do whatever he gets to do to solve the other; and starts looking like "the government can solve every human problem we put it on!"  It's facile, and it hasn't proven itself to be particularly true in reality.  For every program that everyone agrees works well, there's a program that doesn't just function poorly but many reasonable people of good will think shouldn't even have that function at all.

But I'm digressing from my digressions and it's not getting me back on track. Rereading my screed, I think I've spent everything that I needed to vomit onto cyberspace.  Okay, gotta work on flow and structure.  Maybe if I had an editor.  Bah.

Anyway, to foreshorten my conclusion:  Forcing us to buy insurance isn't regulating commerce, it's mandating it, which no government can do; even assuming that universal socialized health care were the best idea, if the bill that makes it the law of the land stipulates compulsory participation by buying from private companies what the government says the private companies have to sell, then the law as it is cannot stand.  There are plenty of good ideas out there that may be impossible to implement as a government program, or at least would be possible to implement as an illegal program, but being good in sentiment doesn't mean we should close our eyes and push it through anyway.  It means we have to find a better way to achieve what we want to achieve.  The ends won't justify the means.  You think making sure the downtrodden have a reasonable chance at getting decent medical attention is a positive and necessary goal?  Great.  Take some care to make sure you down tread on other people along the way.