Can Congress Make You Buy Broccoli? And Why That?s a Hard Question

[eridani]

http://healthpolicyandreform.nejm.org/?p=13457&query=TOC

The continuing uncertainty over the constitutionality of the Affordable CareAct (ACA), illustrated by conflicting trial court rulings and scholarly commentaries, raises the question of why this constitutional question is so hard to answer. There are at least four reasons.

1. Congress has never required anyone to buy a product from private industry. This is the first reason the question is so hard.

2. The second reason is that answering the question requires predicting the Supreme Court’s interpretation of the scope of the Commerce Clause, and its recent decisions on this issue offer little guidance.

3. The third and most important reason the question is so hard is that it’s difficult to decide whether not having insurance coverage qualifies as an activity that affects interstate commerce.

4. The uniqueness argument, however, is not so easy to make — which is the fourth reason the question is hard.

A much easier question to answer is why we're facing this constitutional turmoil. Why, for example, is there no constitutional fuss over Medicare, Medicaid, or veterans? health care? These programs raise no constitutional issue because they are government benefit programs funded by taxes, and the Constitution explicitly authorizes Congress to tax and spend for the general welfare. Had the ACA expanded Medicare eligibility to everyone, or created a new government health benefit program, there would be no constitutional issue. The constitutional controversy is the direct result of the insistence by conservative legislators that any health insurance reform must preserve the private insurance industry, which necessitated the addition of the individual mandate that is now being fought in the courts by similarly conservative forces.

Commentary by Don McCanne of PNHP: Although these views on the constitutionality of Medicare have been discussed by others, including PNHP's leadership, this NEJM article is of prime importance in the continuing health reform debate because it represents the views of respected ethicist George Annas and his colleagues.

The editor's decision to use broccoli in the title stems from the comments of Florida's Judge Vinson who questioned whether Congress could require everyone to buy broccoli. Cute. But that distracts from the fundamental issue that should have been selected for inclusion in the title.

Our founding fathers drafted a Constitution that recognizes the primacy of government in the establishment of benefit programs, and explicitly authorizes Congress to tax and spend for the general welfare. That does not extend to taxing and spending for the welfare of the private insurance industry, especially when that is the most expensive and least efficient model of reform - one that leaves so many out, and creates financial hardship for many more.

Is anyone else ready for a national movement to petition Congress to grant us our right to a government health benefit program for everyone - an improved Medicare for all?

[orleans]

1. at least i could afford to buy broccoli. n/t

[ixion]

9. for now...

[greymattermom]

2. can congress require a business to provide services free?

If not, hospitals will not accept anyone without insurance. I envision that a bail bond like industry will be set up near every emergency room. Unless you have insurance or post bail, we will not treat you. There used to be specific charity hospitals in most towns, but tney no longer exist. Hospitals can't afford to provide services free any more than restaurants or movie theaters can.

[eridani]

3. The money for hospitals has to go through insurance companies because why? n/t

[FreakinDJ]

14. Yes they are required to provide emergency care - by LAW

and that is the reason so many are closing their Emergency room care

[WinkyDink]

16. Mentioning yet another flaw in our society---private hospitals for profit---does not diminish the

original argument.

[iamtechus]

4. The government can't make you buy broccoli because ...

whether or not you buy broccoli has no effect on others. On the other hand, your failure to buy health insurance can cause others to have to pay your medical bills. The law requires hospitals to provide care for you even if you can't pay for it. This means that, in order to survive, hospitals must adjust their prices to cover the losses caused by non-payers.

Unless you plan on being a healthcare freeloader you will, no doubt, favor the gov forcing everyone to have insurance.

[eridani]

6. Insurance companies are intermediaries between patients and hospitals because why? n/t

[Gravel Democrat]

7. If that is so obvious then why did Barack Obama campaign against mandatory health insurance

Is it because he was not aware of your argument?

Is it because he wanted to beat Hillary over the head and then adopt her position?



Is it because he would have said anything to get elected?

One of the only distinctions between Obama and Hillary was the mandate.

If a Republican administration passed a law requiring you to buy insurance from a for profit company with no public option you would be in favor of it?

Really?

The Constitution is a document limiting government powers, not enabling them via a twisting of the commerce clause.

" To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;"

NOWHERE DOES THIS EVEN COME CLOSE TO REQUIRING PARTICIPATION IN COMMERCE

http://en.wikipedia.org/wiki/Commerce_clause

Do you really want to grant a future Republican Administration the right to require you to buy stuff?

And as for the comparison to auto insurance, it's bullsheisse.

Auto insurance has never been required by the feds.

More people ought to read the quotations from Madison

http://en.wikipedia.org/wiki/James_Madison

If you listen closely that sound from the east is him rolling in his grave

Here's a way to "solve" homelessness.

Mandate the purchase of a house.

Your grandchildren don't know it yet but they should be thankful that some of us are fighting the requirement that they be harassed for not buying a corporate scam.

Why haven't the Feds required the purchase of a single thing before this, if it was so easy?

[Gravel Democrat]

8. And furthermore...

Why didn't the (R)epublicans campaign against the mandate?

I listened closely during the entire "debate" (which included *arresting* Single Payer Advocates, you remember that, don't you?) but few mainstream republicans mentioned this mandate at all. Now why is that? How could that be? Polls showed the mandate to be the most objectionable part of the entire bill, even though many don't even know about it even today. Just ask around, you will find that out for yourself.

If the mandate was the single most objectionable point, and the (R)'s didn't even, for the most part, TALK ABOUT IT, what does that tell you?

It tells me that the Elites wanted this, and if proposed by a (R) it would have caused (D)'s to riot and march and otherwise cause trouble so they let the (D) do the dirty work knowing that they could avoid the issue and watch the other side take the arrows for what they wanted in the mid 1990's (SEE: ROMNEY CARE)

I hardly ever heard the phrase "MANDATORY HEALTH INSURANCE" before the vote was cast.

Do you hear prominent (R)'s talking of repealing the mandate *specifically*? They talk around the whole thing, as expected.

[Recursion]

20. You still don't "have to" buy insurance after 2014

You just pay higher taxes if you don't. I pay higher taxes because I rent; that doesn't mean I "have to" buy a house.

[ixion]

10. health insurance is NOT health care

nice try and spin, though. :eyes:

[WinkyDink]

17. Incredibly flawed argument. There is no constitutional right for private health-insurance companies

TO EXIST, let alone become de facto TAX-COLLECTORS.

[Taitertots]

19. If what you are saying is true, why didn't the rates go down?

"This means that, in order to survive, hospitals must adjust their prices to cover the losses caused by non-payers."
If they have to go up to cover non-payers, the lack of non-payers should cause the price to go down. But it won't because this is about profits for Wall Street and not health care for Main Street.

"health care freeloader"
What a pathetic term for people who don't want to die young and penniless.

[JDPriestly]

45. The whole idea is that rates will go down.

Also, when everyone buys health insurance, it cuts the government's costs for covering people who need emergency care, let's say for an accident but are uninsured. The freeloaders push up the hospital's losses for uncollected bills. That means that all other patients, including those of insurance companies but also those of the government (Medicaid and Medicare) go up to cover the hospital's losses.

The people who do not have health insurance often wait until a health problem is so critical that they have to go for emergency care. Emergency care costs a lot. Further, the people who fill emergency rooms with conditions that should have been treated by their GP cause emergency care to be slower and more difficult to get.

So, the government gains when everyone buys health insurance. In fact, we all gain.

And Medicare for all would be the very best because then we would not have limitations on our care such as having to select a provider from our insurer's list. I lived in Europe (several different countries) and enjoyed their various forms of single payer insurance. IT WAS GREAT. All the doctors in our town were on the same insurance plan. You did not have to pay more because your doctor was not listed by your insurer. I can't tell you how much I liked that system. Your insurance payment was taken out of your paycheck. Everyone couldl afford it because payment was on a sliding scale.

[eridani]

52. Too bad insurance doesn't actually give us health CARE n/t

[Hello_Kitty]

46. It's the liberal version of "Welfare Queen" and it's disgusting.

They really believe there are legions of young healthy deadbeats with buckets of disposable income which they are selfishly withholding from the insurance market only to stick good Godly hard working white upright responsible insured people with the ER bills for their coke binges and skiing accidents.

Massachusetts has seen no decrease in ER use or costs since they required everyone to get insurance.

[Statistical]

23. One could say that eating crappy food instead of healthy food does result in someone else paying.

The person eating "right" their entire life will still pay higher premiums when the diet and health of average American declines.

Once you say Yes the govt can mandate purchases in this one instance it is a very slippery slope.

If the govt has the authority is mandate health care purchases then they have the authority to mandate you buy vegtables, or join a gym, or a thousand other things.

Hell they could mandate you buy a new car (newer cars have more safety features thus making it less likely you will be seriously injured and pass those costs on to the insurance pool).

[lepus]

24. Before the government mandates private healthcare insurance

It needs to look at the collusion between drug companies,insurance, and hospitals.

While I would never want to be a health care freeloader, there is no reason health care is as expensive as it is in the first place.

A small bottle of pills costing 200 dollars?

A visit to emergency room to get stitches costing the better part of a grand?

Decent insurance costing a goodly percentage of a paycheck?

The way I see it, the ability to charge follows the ability to pay in a capitalist system. Insurance allowed the medical industry to charge more for their products and services. Because those medical services were now so expensive, insurance becomes necessary.

The solution to this problem is not mandating insurance, that's just feeding the problem. The solution is to break this cycle and provide health care as a government guaranteed right like most civilized countries do.

How much lobbying weight does the insurance lobby have in congress as well as the medical industry? Is your congress critter more loyal to you, or that lobbyist?

[MedicalAdmin]

25. Freeloader? I don't think so.

Don't get me wrong, if it were any rational system like single payer, regulated like Germany or even a public option I would willingly sign up.

But I can't afford to so I will pay the fine to the IRS (that being less expensive than the useless insurance I (don't) qualify for. Ooooh, did I say IRS? I meant the public collection agency for private debt.

And like most without insurance I just go without. There is no free care - that is a myth and a lie. Hospitals are required to stabilize only and they only have to admit you IF they have an emergency room and most of those are closing. And after you are stable you are sent home with a framing HUGE bill. Like many, my health plan for serious illness or injury includes a loaded gun and a trigger finger. I will not leave my family destitute.

So thanks for spreading the myths and repeating the lies. Merry Christmas.

[JDPriestly]

34. And Congress can subsidize and promote certain uses of land,

certain agricultural uses for land. So, the government can make eating broccoli and vegetables a lot cheaper and more attractive for consumers if it wishes.

[jtuck004]

5. You touch my broccoli I'll have you arrested. n/t

[quaker bill]

11. No, because broccoli is not necessary

to implement a law banning healthcare discrimination based on pre-existing conditions. No one questions the authority of congress being able to create laws to ban discrimination. Once you go there, the constitutional question is resolved.

[MadHound]

12. Neither is having a person purchase healthcare insurance.

Apparently campaign trail Obama realized this, because he campaigned for a ban on pre-existing conditions, and no mandate.

Apparently president Obama has forgotten this.

[quaker bill]

60. Actually it is

If you truly ban discrimination on pre-existing conditions, people should only ever buy insurance at the emergency room. Why for it pay before you need it?

You have to think things like this through.

Now if you think people will voluntarily buy insurance on their own, before they need it, then the mandate does not matter because no one will be forced to do anything that they have already done on their own.

So either it does not matter because it will be applied to no one, or it is essential. You pick.

[TheKentuckian]

13. A mandate isn't necessary to banning discrimination but rather supposedly to prevent

adverse selection which would, if it was a serious factor, would prove harmful to the insurance cartel.

The Constitution has no cut out for the viability of the insurance cartel. A law can certainly have good and constitutional intent without be structured in such a way that would make it pass muster.

In the end, the environment is far too dominated by corporate interests to set such a precedent. You got more guts than brains to take a chance on the old slippery slope in this day and age. At least from my view of the lay of the land.

If the concept doesn't give you some serious misgivings then you almost have to be isolating on just this law.
I'd call it rash or hasty for sure to see Citizens United go down, the BP gusher in the Gulf, and the clear and obvious unending catering, deal brokering, and straight up capture and still feel secure in a measure like this-the requirement to purchase a product or service from a private, for profit company. In this case a non-tangible product from a criminal and amoral at best cartel.

A product/service that you still aren't guaranteed. You can get a waiver from the mandate but if your policy costs more than about 10% of your income after your subsidy and you can't scrape it up then you still are totally on the "Don't get sick and if you do get sick, die quickly" plan.

The rest of us will be herded into high deductible bullshit that serve only for screenings and catastrophe (to limit liability) and many with coverage will fare little, if any better.

This deal has a ceiling that is like 4 feet and a floor that rests in another dimension. Too much risk for too small a payoff.

[Recursion]

22. Are you joking?

adverse selection which would, if it was a serious factor, would prove harmful to the insurance cartel.

Yes, "harmful" to the "cartel" in that they would have to raise premiums to tens of thousands of dollars per month or go bankrupt. Not sure how either scenario would help us (remember, even Medicare is provisioned by private companies).

[TheKentuckian]

29. Nope. Certainly health care nor the Constitution require the criminal insurance cartel

You may own stock in or work for one of the cartel's members but they do nothing that cannot be done more frugally without them or with them purely acting as an administrator for a limited and set rate.

[Recursion]

42. "criminal insurance cartel"

:eyes:

Yeah.

they do nothing that cannot be done more frugally without them

Then why does Medicare rely on private insurers for provisioning their payments to individual providers? Pretending there are no efficiencies in the private sector compared to the public sector may be fun, but it doesn't address the actual facts on the ground.

[Hello_Kitty]

49. LOL!

Pretending there are no efficiencies in the private sector compared to the public sector may be fun, but it doesn't address the actual facts on the ground.


Pardon me while I :rofl: Right, privatizing government services always makes them better and more efficiently run and is never done to profit private industries at the expense of the public. Just ask us Arizonans how well our private prisons are working out.

[eridani]

53. No it isn't. Private companies push pencils only (for traditional Medicare) n/t

[Vinca]

15. There really isn't a need for a mandate, but there was a need for spine.

If big insurance must be enshrined, laws should be passed disallowing discrimination, caps, etc. Then, a board should be put together to set rates . . . just like utilities. I haven't lived in Vermont for a number of years now, but when I did I purchased individual insurance and they couldn't refuse anyone. They didn't even ask about pre-existing conditions. Last time I checked the insurance companies were still doing business in Vermont. That, by the way, was thanks to Howard Dean.

[WinkyDink]

18. Your introductory dependent clause is where the true Democratic argument should lie: IF.

[eridani]

58. That's what developed countries providing universal care through private insuance do

The government dictates coverage and rates for basic comprehensive plans for all. Insurance companies are allowed to offer extra bells and whistles (sometimes for profit) if they want.

[Recursion]

21. Congress isn't making you buy health insurance

If you don't have health insurance (after 2014) Congress is making you pay a tax that will go to funding the care ERs are still obligated to give you.

We may not like using the tax code to encourage and discourage behavior (and Republicans like it even less), but if we say they can't do it about health insurance, does that mean they were also wrong to do it about, for example, mortgages? Having children? Paying your student loans?

[Davis_X_Machina]

26. Don't use your so called 'facts' and 'logic' here...

...this is DU!

Kill the Bill -- one slogan, so many applications.

[Taitertots]

27. So if you can't afford insurance, they take extra money from you to give to the insurance corps

Saying they are not making you buy insurance is disingenuous at best.

[emulatorloo]

28. That is not what Recursion said n/t

[Taitertots]

30. If you don't buy it, they take your money. It is exactly what he said

"If you don't have health insurance (after 2014) Congress is making you pay a tax"

[Fumesucker]

32. What happens if you don't pay the tax?

:shrug:

[Taitertots]

37. You end up without health care and lots more problems n/t

[Fumesucker]

38. No, what are the *penalties* for not paying the tax?

A tax with no penalties for not paying it is not only highly unusual but essentially useless.

ETA: Oh, and buying health insurance is by no means a guarantee of receiving health care, a point which has been made here often enough that every single poster on DU should be familiar with it by now.

[Recursion]

43. Well your wages could get garnished

Or you could go to jail.

TANSTAAFL. If we want universal health care, it's going to cost a lot more than the 2.5 trillion per year we already pay.

[Fumesucker]

44. Not if we reach the efficiency of delivery of a number of other nations..

Our per capita expenditures on health care are more than double several other nations that cover every single citizen and higher than every other developed country, all of which cover everyone or virtually everyone.

[Recursion]

41. Um. No

If you don't pay for insurance, and you can afford it (if you can't, the government will pay for your insurance -- did you miss the whole health care bill we passed?) an additional tax will be assessed against you. Now, no, it's not directly dedicated to reimbursements to ERs for uninsured no-pays, but that money has to come from somewhere.

[eridani]

54. The govenrment will only buy you SHITTY insurance that you can't afford to use n/t

[BlackHoleSon]

31. That sounds like Socialism

A tax, from the govt, for a social or medical service. A tax on the individual to support something that serves society at large, as well as the individual.
If your going to play at Socialism, why not do it Fucking Right!
I am in healthcare -
I agree with the Kentuckian.
Thee is nothing the insurance cos contribute to the process that could not be done cheaper and better by the public sector.
Almost everyone I work with is in their field to HELP people, and to make a very basic living. No one's getting rich.
Can you say the same for the insurance cos and their stockholders?
This fake reform stinks to high heaven.

[Recursion]

40. That's dogma

There is nothing the insurance cos contribute to the process that could not be done cheaper and better by the public sector.

I understand this is a deeply-held article of faith here. However, there's no evidence to support that statement. None. The McAllen, TX, study shows that Medicare and Medicaid are capable of wasting amounts of money that put the private sector's profit margins to shame.

On this subject (along with gun control), liberals start arguing like conservatives, unfortunately: we run to first principles and a priori arguments rather than looking at actual evidence. And that's what leads us to bad ideas sometimes. The past few years of MassCare have shown that a publicly-managed exchange of private insurance companies actually is working at insuring all and lowering costs (exchange premiums are down 14% this year; coverage in MA is at 99% or so).

[Hello_Kitty]

48. When liberals talk about "freeloaders" they sound like conservatives too.

And the mandate is to (some) Democrats what tort reform is to Republicans. A magic bullet that really isn't.

[TheKentuckian]

50. Now your argument has moved from demonstrating constitutionality to efficiency?

The argument that the insurance cartel is a prerequisite to providing access to health services without bias based on health history is simply not true.
It may be the set up that makes the most sense to you and others, it may be the most or least efficient, it may well be any descriptor but it isn't the only way to skin that cat.

It sounds like your primary mission is curbing adverse selection rather than universal access to affordable quality health care.

[BlackHoleSon]

51. Intent is not dogma

I argue that insurance cos (and their brothers in arms, Big Pharma) have to, by definition, put profibility above all else. That profibility comes on the backs of people who, at any cost, NEED healthcare.
Medicare can be abused by false billing, fraud, etc. That can be combatted with more oversight and regulation.
You can also oversee and regulate these industries - but they have already been allowed to take such a huge percentage right off the top, before a single patient has been treated, so that they can pay investors, stockholders, executives.
You example of MassCare is great but does it come CLOSE to the efficiencies achieved by Medicare?
And a reminder, Coverage does not equal Health Care.
In my field I regularly see people with "good insurance" having to pay over $500 out of pocket for our testing, which for most of our patients, is vital to diagnosing a significant problem with their health. How many are going w/out because they can't afford these copays? Trust me, it's not only the patient who suffers if they can't afford our diagnostic services and resultant treatment - the community suffers a very real economic and social cost from this chronic (but very treatable) condition.
In my 20 + years in healthcare, Medicare has ALWAYS been the driving force in bringing down costs, either by the outright slashing of reimbursement rates or through the adoption of cheaper technologies.
Insurance cos, by contrast have no incentive to decrease the overall costs of healthcare. Their business model takes the profits off the top - the larger the costs, the bigger their cut is going to be.

[eridani]

55. It's fact. Otherwise, how do you explain per capital costs in other countries

--that are HALF of ours while taking care of everyone?

[Exilednight]

35. It's not a "tax". It's a "fine". The only people who are not going to purchase health insurance

are those that can not afford it. If they can not afford to purchase health insurance, how are they going to afford to pay the fine?

Again, nothing in this bill addressed the real problem with health care. Once legislation is passed that stops insurance providers from gouging the sick, then, and only then, can we address the rest of the problems. In typical Washington fashion, the president and congress put the cart before the horse.

[Recursion]

39. Seriously?

those that can not afford it

Those that can not afford it are going to be subsidized. Are we even paying attention here?

[Exilednight]

47. They don't receive a subsidy, they receive a tax credit to purchase health insurance .............

Again, the bill does not address the real problem with health care: the gouging by health insurance companies.

I find it funny (not haha funny) that people who call themselves Democrats are defending legislation that forces people to be gouged by corporations.

[eridani]

56. Nothing is more useless than a tax credit to people who don't pay much in income tax n/t

[Gravel Democrat]

59. For the supporters of this abomination...

You won't have a problem when a Republican administration passes laws requiring you to buy whatever the lobbyists of that day are pushing. Right?

Do you expect this will stop with health insurance? When has an executive ever relinquished power (besides the Real George W-Washington that is)? Do you think the Republicans won't abuse this?

I've saved and bookmarked many of these threads and you supporters will look pretty stupid all of a sudden objecting to the next mandate. And you better fu*king believe it will come, if nobody stops this madness.

This is the Worst. Domestic. Legislation. Ever. Even. Conceived. by the Democrats and if this precedent stands Every. Single. Citizen. in 50 or so years will curse the jackasses that pushed this through.

Mark my words. Or don't. I really don't give a fu*k anymore.

I will never ever submit to being told what to buy and I AM NOT ALONE. Jail me, fine me and I will spit in your face.

And the first fool that calls me a "freeloader" for not contributing to WellPoints bottom line to my face is going to find out exactly what plastic surgery costs. And hopefully their insurance will deny the claim. Heh.

[JDPriestly]

33. They aren't really making people buy insurance.

I support Medicare for all,

But -- under the new insurance law as I understand it

You will pay lower taxes or even get a tax credit to help you pay for the private insurance if you do. It's called a penalty, but it is really a tax deal as I understand it.

They could simply increase taxes on the private health insurance companies that don't provide you with insurance on the terms the government requires. Or they could give a huge tax advantage to private health insurance companies that do provide insurance according to government regulation.

This is a use of Congress' tax and spend authority under the Constitution as I understand it. It is also a use of Congress' powers under the Commerce Clause as I understand it. Of course, with the right-wing Supreme Court we now have, we could see reinterpretation of those clauses in our Constitution.

[Paranoid Pessimist]

36. Forcible Broccolli -- Everything Not Prohibited is Mandatory n /t

[Ter]

57. Are we talking state or federal government?

n/t

[WinkyDink]

61. And just because: I LOVE BROCCOLI! I must've eaten a pound of it yesterday. So mandate away! ;-)