Saturday, March 27, 2010
Health Care--'Bet It's Constitutional!
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.