Saturday, March 27, 2010

Health Care--'Bet It's Constitutional!

The Bad Lawyer was out to a restaurant, last night, with the Blonde Super Lawyer, a physician friend, a professor of nursing, and her husband an OurTown attorney/legend.  Good restaurant, great friends, a fun time!

The subject of the new HealthCare reform came up in conversation and various opinions were offered including the observation by my friend, the famous OurTown attorney--who observed that he and a mutual lawyer friend were separately, talking about the eventual Supreme Court decision that he and our mutual friend concluded would result in the declaration of the reform as unconstituional. 

As you know, the Bad Lawyer blawg rarely weighs in with opinions on the big stories and debates, because, frankly, smarter and more expert people than moi carry that ball.  And this is a forum for a dirt bag guy with 28 years of experience and no current law license to expound on what he thinks is interesting.  But I listen to a lot of folks, who are all over the place on this subject and I do have my opinions .

For a long time, I've wondered why in this country only a few people pay for health care.  In fact only a few people pay for all the health care.  Those people fall into two categories, people with health insurance and people without health inusrance who can pay the undiscounted full price (usually against their will.)  In the first category you have people with health insurance through their jobs or who are lucky enough to be able to afford health insurance.  In the latter category you have people who are poor but not poor enough to be uncollectable--so health care providers can sock these folks with the full boat payment, plus interest and the costs of collecting the full amount from them.  You see, in this country health care is fully paid for by somebody, and that somebody is you and my health insurance carrier.  Those who can't pay get health insurance and we subsidize them by paying more.  Now it's getting too expensive for many of us. 

So the solution--mmmmm, I'm not real smart, but isn't it that we all participate in paying for what we all receive?

So my friend suggested last night that there were constitutional infirmities to an individual mandate to buy health insurance coverage.  Why?  I pointed out that we all are mandated to "buy social security," or opt out through some recognized alternative like teacher's retirement, PERS, and so forth; but, my super smart friend said well that's a tax.  Well it's only a tax if you aren't doing one of the recognized alternatives--you are required to do something--it ain't voluntary.  But the argument was Congress can not enact a law requiring you to buy health insurance.

As I say, Congress and our state legislators enact all kinds of laws requiring us to do this or that--but you do not have to be a constitutional scholar to know that in fact the Constitution in Article I, Section 8 grants Congress the power to tax, impose financial obligations of all sorts to provide for the common defense and general welfare of the United States.  And in this regard the same Article of the Constitution enables Congress to regulate commerce among the states (ahem, insurance companies), and to make all laws necessary and proper for carry out the enumerated purposes of Article I. 

Hear me out, I am no constitutional scholar, and I am not engaging in any sophisticated discussion of the nuances of the the case law or legal arguments, now or ever; but this is not case law, this is not an "amendment," this is not a regulation--this my friends is the body of the US Constitution.  So when your friends shoot their mouths off about this or that right being taken away by Obamacare, you can ask them:  Have you ever really read the US Constitution?  Uh, the body of it? 

Good luck, there's no reasoning with a lot of people, frankly what's going on right now--isn't at all about reason.


  1. B.l. if you can even jointly prase proclaiming a right and any protection there of as shooting off ones mouth you my friend are out of line and in concert with those whio are abusing all we hold dear what we refer to the welfare program was so named to exploit a term and word
    many as we recognize specific welfare programs don't even use the word welfare in their title programs
    the wel fare is a form of fare well or to fare well we speak to term farewell to some departing our company in going , continue to be happy in what you do and where you go without going to hay .madison or hamilton where do you get the idea the government can deprive one to provide for another taxes were to finance those benefits provided you not another though they may be shared jointlythe general welfare can not be served if one is made unhappy to make another happy so now you are traveling to some one some groups SPECIFIC welfare

    SHOOT OFF MY MOUTH that posture on those of us that hold our rights as sacred find that type of catacorization as devisive and certainly a fanning of the flames i will be proud to be regarded as SHOOTING OFF MY MOUTH by you as king george felt adams henry hancock and the lot shot off theirs not very informative twisting a meaning by taking a word in a convienient context

    where did you ever see a writing of our founding fathers that led you to believe or suggested we take from the rich to give to the poor that is the priviledge of us each individually in a speech lincoln said along with several non socialistic views said you cannot raise up one man by taking another down
    i thought i was getting a rerun of the spewing of hatred used by one of you cast of characters in descriping we tea patiers and what ever you consider the fringe
    please don't tell me you shouted out eureka upon reading article 1 sec 8
    you have been pushed down the path of our destruction

    the end of the shooting off of

    the pope

  2. As I recall, the American Revolution was fought because we didn't want our tax dollars going to that rich king across the pond. Not because we objected to using our own tax dollars in building a vital, sustainable country over here.

    Pope, I admire your eagerness to trumpet a diverse set of thoughts, many of which are over-fertilized by the lobbying dollars of the entrenched business class, which is counting on you to deliver frequent flyer miles for their alarmist talking points. (Sorry for the mixed metaphor).

    However, let me remind you that capitalism not only thrives, but DEPENDS, on healthy customers with disposable incomes.

    Anyway, this is a blog for studying and appreciating the divine inspiration provided by stories of drunken judges, flabby-assed lawyers, hapless defendants ... and the occasional bicyle news.

    Nobody here mentioned tea parties. But remember the next time you loudly stumble in the door and refer to yourself as a Patriot, if want us to understand your writing, use spellcheck and leave your ego outside.

  3. Your holiness,

    You know I love and respect you; but my dear friend you need not "own" an argument not directed at you--unless you yourself see yourself reflected in it. In composing my remarks, I did not have you in mind.

    However, you may want to look at the provisions of Art. I, Sec. 8.

    Like you I am interested in history and as I recall this country came into existence as a reaction to Royal government that exploited resources and imposed taxes without providing representations an ocean away. The Health Care dissenters are the best armed and most represented dissenters in history, and they shout names like "Baby Killer" and "liar" while sitting on the floor of the United States Congress.

    Who's spewing hatred?

    One other thing, it's the poor, the children, and the old in the United States who benefit from Health Care under Health Care reform, oh yeah, probably some people you or I might not wish were here will benefit, but consider this for a moment, because they too will be required to participate under the mandate, we will no longer be subsidizing them like we do now. I'm not sure how this is stealing from the poor to give to the seems to me this is making everyone pay for what only a few of us pay for now--but, all utilize.


  4. life liberty and the pursuit of happiness origionally was first drafts life liberty and property however in settling on pursuit of happiness it was not life liberty and the granting of happiness after the stamp act of 1768 taxes were very manageable even in 1773 (tea party) the idea of the king owning the land and any land opportunities were at his pleasure and you paid him a land use tax

    i don't see the object to be me i am part of the proverbial "we" or in " they " your rant save the children save the elderly local governments squander the revenues when things get tough instead of tightening their belts they take your course of action we must get more revenues or cut education the shame game
    to overlook one impropriety because you will be shamed for overlooking is political bullying so those having your position have
    cornered the market on compassion i believe you failed to read my position on artile 1 sec 8 as i can't believe you couldn't understand it
    you referring to it as you have the exclusive clearity on it the manipulated play on words re read what i said regarding "to fare well"
    we philosopically have opposite views

    you believe it alright to sacrifice my rights for what YOU believe is the greater good

    there is nothing more fundamental with regard to our republic than the statement "he who sacrifices liberty for security deserves neither" and ultimately will have neither
    you may at different times choose to personally make certain sacrifices however you never have the right to manipulate the sacrifices of others NO MATTER HOW NOBLE YOU CLOAK YOUR CAUSE charity is not the role of government there are thousands of charities that are the proper conduit for displaying the brotherhood of man and more apt to leave politics aside a charity will not prioritize a program or a beneficiary as to the vote it may yield

    i find it preferable that some days i may not eat but still have the opportunity to feed myself the duty the PLEASURE and that conveys to my family we only develop dependence not self reliance

    the pope

  5. Your Holiness--

    here's the problem with your logic, you insist on the original meaning of the founding documents but then you try to unwrite the words that were written and adopted and are the words of the US Constitution by trying to reach for the outcome you want. We can talk about all kinds of versions that aren't the US Constitution...

    And what does municipal, county, state or federal management incompetence have to do if what we are talking about? It's a private health insurance coverage mandate.

    Notwithstanding, this argument that government is incompetent is pretty much an canard, while we can anecdotally find all sorts of examples of official incompetence and misconduct, we the people built this country, the roads, mounted are armed forces, fought the wars, built and maintained the ports, established commerce, integrated different races, built the cities, traveled to the moon and visited the universe via rocket probes, cured disease, educated the young, cleaned the air and water, I'm sure I'm ofrgetting a few things...

  6. Here's the problem, Pope. If you suspect we don't understand what you write, it's because we can't understand what you write.

    Make a rough draft. Spell check. Edit and simplify. If you have trouble writing a good sentence, many readers conclude you're having trouble thinking a good thought.

    This observation is made with all due respect. But geez, it takes some effort to make writing not sound like ranting. The effort primarily should be on your end, not ours.