Dispatches from the Creation Wars

She does seem to be confused, except for "this is supposed to be a nation under God." most of us have pledged to that any number of times. Time for a new pledge.

Posted by: gski | December 27, 2009 10:06 AM

Yeah Rodney, the asses seem already to be in residence.

Posted by: MikeMa | December 27, 2009 10:14 AM

Ten-penny madness doesn't really bug me; what annoys me are all the yahoos running around claiming that health care reform is "unconstitutional". To my mind, there is no greater threat to our system of government than the pervasive ignorance that allows people to convince themselves that, just because they don't like something, it's unconstitutional. If health care, an inter-state industry, cannot be regulated by Congress, then what the heck does fall under the commerce clause?

Posted by: Julian | December 27, 2009 10:19 AM

Julian @ 6:

what annoys me are all the yahoos running around claiming that health care reform is "unconstitutional". To my mind, there is no greater threat to our system of government than the pervasive ignorance that allows people to convince themselves that, just because they don't like something, it's unconstitutional. If health care, an inter-state industry, cannot be regulated by Congress, then what the heck does fall under the commerce clause?

While I've studied economics ardently enough to know our country's economic growth prospects require meaningful health insurance reform, I'm one of those 'yahoos' who finds the constitutionality of one aspect of the current proposals interesting. That is the universal mandate.

From a policy perspective I enthusiastically support universal mandated coverage given that I'm cognizant of the reality of how insurance for an item that nearly all people will consume in disproportionate amounts needs to work given certain societal standards shared by nearly all political ideologies (e.g., health care for those in an emergency, health care for the elderly). However from a constitutional perspective I'm not sure what constitutionally delegated power exists that requires every individual pay for health insurance or get fined.

Julian, you refer to the Commerce Clause in a manner I've never seen any scholar describe it, broadened far beyond even abstract principalist arguments I've encountered. Perhaps you can provide a linked citation to a thesis that this clause or some other explicit clause extends the appropriate powers to force individuals to pay for health insurance or pay a fine. I assume an argument exists given this debate item has been around for months now; I've just never encountered a defense of this question so I find our just assuming it's constitutional to be premature.

Posted by: Michael Heath | December 27, 2009 10:49 AM

To quote Billy Madison:

"Bunny, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this [virtual] room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."

Posted by: CHV | December 27, 2009 11:49 AM

Re Michael Heath

Although the analogy is somewhat inexact, many states require that a vehicle owner purchase liability insurance and minimum amounts are part of the legislation. It would seem that an argument that health insurance mandates are unconstitutional could also be made that a liability insurance mandate for vehicle owners is also unconstitutional.

Posted by: SLC | December 27, 2009 12:07 PM

I think the reasoning in her head goes something like this:

"The health care bill favors genocide of senior citizens. This is an ungodly act. Therefore, supporting this bill is to reject God. We're supposed to be one nation under God, though. We can't be under God if we are doing such a terrible thing. Consequently, I'm going to take down my symbol of worship, my Christmas tree, to reflect America's rejection of God. I'm insane."

Posted by: Jason S. | December 27, 2009 12:37 PM

Jason: 3-1 says she's going off about the (pretty limited) public support for abortion in the Senate bill. Apparently it didn't occur to her to just urge the House Conferees to stick to the Stupak language in the final bill.

Posted by: kehrsam | December 27, 2009 1:03 PM

CHV:

I noticed that too, but it seems like there's a bit more to it. The implication, at least what it looks to me, is that rather than accepting that her son has drastically different political views from her, she is saying that political dissent itself is a problem here, and evidently seems to think that liberalism is inherently a plot to break up parent/child relationships.

Posted by: Brian X | December 27, 2009 3:30 PM

So what's Bunny's unconscious distress about? I can't say for sure, but one hypothesis I would entertain is that Bunny believes that her son would like to see her in hospice care, sooner rather than later.

Posted by: Dr X | December 27, 2009 4:19 PM

... mandates ...

I think this should be framed, at least to the "I'm young and healthy and don't need it" crowd, more along the lines of medicare/medicaid/social security taxes: insurance for your own future.

Social Security and Medicare, after all, in extreme cases can kick in early.

Unfortunately this probably requires too many contortions outside of going to single-payer.

Posted by: Uncle Glenny | December 27, 2009 5:15 PM

Heath: Most of the arguments I've seen regarding the constitutionality of the reform bill have been broad ones questioning the entire concept, and thus my response was more focused on this idea that, for some reason, the idea of congressional regulation of the industry was unconstitutional. It seems to me that, if the Commerce clause means anything, it is that Congress has the right to regulate interstate commerce, and, health-care being a form of inter-state commerce, it must fall under this rubric. The yahoos I referred to were those making such arguments.

The specific argument you put forward, that the payment mechanism (forcing people to have plans or fining them) is unconstitutional, I think, has more legs to it. However, given the current state of jurisprudence on the issue of the extent of the commerce clause, I think this may be (unfortunately) deceptive. Consider Gonzales v. Raich. In this case the Court argued;

1)That Congress has the right to regulate the use of Marijuana.

2) That a ban is an effective form of such regulation.

3)That "the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective" (taken from Scalia's concurrence).

Applying this thinking to health-care, one could argue that, given that the regulation would be ineffective without the mandates, such mandates are allowable. I'm rather leary of this sort of application of the Commerce Clause given its implications, however. To use such sophistry to justify forcing people into a market opens up the possibility, particularly in our incestuously corporate government, of government regulation being used as an excuse to force people into participating in markets they don't want to. Also, to be fair, this decision is regarding the government's right to keep people from participating in a market (even inadvertently), not its right to force their interaction in it. Given the current Court, however, I think that's a slippery slope to be trusting in. To put it more simply, if Congress has the ability to declare ownership of an item illegal under the commerce clause, even when the state in which the item exists does not consider it illegal, and with that power, the power to compel fines and imprisonment upon the individuals who own it, then how does it lack the power to compel fines for not using an item? As I said, very dangerous, but the current state of the jurisprudence seems to be pointing in that direction.

Compelling involvement in a private industry always seemed to me rather touchy on Constitutional grounds, which is why I preferred a public system or a heavily regulated private industry (in other words, purely regulatory measures) such as we see in Japan or Germany (admittedly, never likely in the U.S. given the political power of doctors in our society). There may be a way to justify the mandates using the commerce clause that doesn't sound like sophistry, but I have yet to think of one. If the mandates were applied as a sort of "free rider" tax it would really be little different legally from tobacco or alcohol taxes, or other "anti-social" federal restrictions. However, the only such federal taxes of this sort of which I am aware are applied to goods as tariffs, not punitively to persons and that seems like a significant difference to me (though there are federal child molestation statutes of a kind with this thinking, I would shudder to see such draconian justifications applied to tax law[ heck; I shudder at them being used for law enforcement already])). If it were going to be justified under the commerce clause, I would see it being done under rulings regarding taxation and using the "Necessary and Proper" clause within it.

Having said all that, this is just my thinking on how they would justify it; I can't really speak as to how those proposing it have gone about doing so Constitutionally, or if they have even tried. Given how far the commerce clause has been expanded to justify federal narcotics laws (and certain property/goods seizure cases), and given that the current court is rather friendly to such expansions I see this as the most likely course the it would choose if a challenge to the mandates came up.

Posted by: Julian | December 27, 2009 9:28 PM

:/ that should be 'proposed'.

Posted by: Julian | December 27, 2009 9:38 PM

Don't the Chinese have an ideograph for "Challenge" that is part "danger" and part "a good way to separate the rubes from their money"?

I can't believe that I haven't seen an Disinfomercial for "Death Panel Bribery Insurance", yet. Why should people like Bunny worry about getting parted out when they've exceeded their value as whole persons? Why, she shouldn't and if she had a "DPBI" policy, at a cost of about a Starbucks' Gigamundo Mocha Latte per day, she wouldn't have to! I'm getting my domain name and business cards printed up today. I need some sales people; you can buy in for 5 large.

Posted by: democommie | December 28, 2009 8:44 AM

The problem with all this is that it is an INSURANCE program. What we need is a healthcare program.

"Perhaps the way to get there without running afoul of the constitution is through taxation and single payer or vouchers. Posted by: Dr X | December 27, 2009 12:28 PM"

Tax supported government clinics and hospitals to provide care for all, at a level of service that's not great and not bad. No heart transplants or nose jobs or heroic 3-month-to-die end of life epics.

basic curative and prevenative care that helps people be productive members of society. and not go bankrupt if they get sick.

The will be a big role for private insurance to cover high-end needs, or major accidents.

The govt needs to offer a basic level of care, paid for by taxes, and not set up a system to funnel more money, most of it from taxes, into a broken insurance system.

Posted by: Kevin (NYC) | December 28, 2009 10:06 AM

@31: Health clearly falls under "general welfare." And as long as health care is private and sold across state lines, selling it is interstate commerce, which means Congress can regulate it.

IMO health is covered under "common defense" too. Supposedly the UK healthcare system originated after their government had trouble recruiting enough healthy young men for WWI. Their government realized it needed some way to make sure the citizenry was healthy enough to go to war. Now, whether that story is true or not, the principle is: our common defense is in deep s**t if or when we cannot muster enough healthy bodies to defend the country. Under this cynical reasoning, you might think of national health care as "boot camp lite," i.e. a way for the military to improve the physical capabilities of its future & potential soldiers.

Or were you being a Poe? If so, good job, you sure had me fooled.

Posted by: eric | December 28, 2009 2:12 PM

Not talking about what COURTS have said, Vicki; talking about what the CONSTITUTION says. And you're wrong, Eric. You need to read Madison on the "general welfare". Gives no new authority of power; simply refers back to Art. I, Sec. 8.

Posted by: John Lofton, Recovering Republican | January 3, 2010 10:52 PM