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The Federal Government Is Limited

The US Constitution was designed to limit the power of the Federal government. It is built into the document. The powers of Congress are listed, and changing that list requires a Constitutional amendment. State constitutions tend to give states more power in more areas than Congress has.

People forget that simple fact. Just because a state can do something doesn’t mean that the Federal government can do the same thing. Nixon couldn’t just get Congress to pass a law mandating a 55mph speed limit, he had to threaten the states with a cut-off of Federal highway funds to force the states to do it.

Bmaz at Empty Wheel has a comprehensive post on the issue in Requiem For ACA at SCOTUS & Legitimacy Of Court and Case.

I have never felt that the individual mandate was Constitutional as written. If they had used Medicare buy-in instead of the complicated mess they created, it would have passed muster, because it would have revolved around the Federal government’s taxing authority. The way they did it depends on an expansion in the Commerce clause, and they should have known that it wouldn’t get by the current Supreme Court.

9 comments

1 Steve Bates { 04.03.12 at 10:46 am }

I haven’t read bmaz’s post yet, so I’m not fully informed. But I find it difficult to believe that the current Supreme Court would issue a ruling in any way detrimental to the profits of private insurance companies, which are, after all, the “clients” of both major political parties. I know many people are hoping that we will somehow get single-payer out of this Court ruling, but I wouldn’t bet anything on it.

Perhaps I’m wrong, and the Court’s lust for Obama-thrashing outweighs literally everything else including the opportunity to make the rich richer. But IMHO, money talks louder than the Constitution, six days and Sunday.

2 Bryan { 04.03.12 at 5:35 pm }

First off, despite what everyone claims, there is no precedent for this case because it is an expansion of Commerce clause. The cases normally cited deal with other expansions, but nothing as radical as the mandate.

Second, this is an insurance law, not a health care law, and insurance regulation is the jurisdiction of the states, not the Federal government.

Third, the conservative wing of the Court are all Catholics, most of the Opus Dei variety, and the Church is opposing the ACA.

The insurance industry is going to make piles of money with or without this bill, but it extends the reach of the Federal government into the states’ jurisdiction, and does so in a manner that greatly expands the power of the Federal government.

As for the Synod’s ‘lust for Obama-thrashing’, it just heated up when Zero decided to attack the Court directly for a decision it hasn’t yet made.

The justification for a the mandate, that everyone would be part of health care system whether they bought insurance or not, is not factually accurate. To be accurate health care would have to be available throughout the US, and it is not. They may not realize that there are huge expanses of the US where there are no doctors, hospitals, or clinics. If you live in one of those areas, you are not going to receive health care, even if you have the best and most expensive insurance coverage available. Thanks to the US Postal Service, you can get mail, but you can forget all of the ‘necessities of life’ that are taken for granted by people in cities and towns.

Health care coverage expanded greatly when the Indian Health Service was created to bring medical services to many reservations, but there are places in upstate New York where you are hours away from any kind of medical care if you have a running vehicle and the money for the gas to get there. There are places in the West where you are hundreds of miles away. Consider that half of the population of the US lives with 50 miles of the coast, and you can get a feel for how isolated some stretches of the country really are.

There are plenty of places in Texas where having health insurance isn’t going to do you a lot of good if you get sick, because there is nowhere to use it.

3 Steve Bates { 04.04.12 at 2:41 pm }

Don’t get me wrong, Bryan; I am not a fan of the ACA, and you know I’m not a fan of Obama. “Medicare for All” describes my position fairly well, because it covers “everyone” (everyone within reach of actual medical care services) and is surely the most efficient use of taxpayers’ money for medical care. I shall not cry if the Court rules that the Commerce clause does not reach what Congress has done. I do wonder what will happen next, though. And… do you suppose the lack of a severability clause was deliberate on the part of O’s administration, or an error of omission?

I went without insurance for well over two years, and honestly, for someone who expected himself to be in the middle class in America, it was a frightening couple of years. Fortunately for me, Stella changed jobs a while back, and her current employer is not a part of the feral gummint, and they see fit to insure domestic partners (married or not, gay or straight). So for the moment I’m covered. But sometimes, as little use as I have for the current UK government and its approach to privacy and civil liberties, I wish I had been born there, for the health care system. I’ve heard it’s not great, but anything beats nothing, by a mile at least.

4 Bryan { 04.04.12 at 3:57 pm }

The law was written for the insurance industry, and they want no part if it without the mandate that fills their coffers, so, yes, they deliberately did not include the standard boiler-plate about severability, and made in clear in their arguments before the Court that certain things, the only things that actually helped people, would have to be removed without the mandate.

The UK system is fine. I used it when I was there, although I paid for the use, because it was quicker and more convenient than the military system. I did the same thing in Germany. Even though I wasn’t in the underlying insurance systems, the cost of the actual care was affordable, even for an Air Force Sergeant.

They never intended to have ‘a public option’ in the bill, because that would have removed customers from the private insurance pool. This was designed by and for the insurance companies, not for the people. Customers are ignored by the Zero-ites [Zero and the Nothings that surround him] because the 1% are the only people who count.

Health care has priced itself out of the market for the majority of people in this country.

5 Badtux { 04.04.12 at 5:22 pm }

First of all, the federal government decidedly *is* in the business of regulating insurance already. HIPAA was passed in 1996 and arguably is more intrusive than the current HCR law, while ERISA has been law since 1974 and regulates virtually all forms of insurance provided to employees by employers. Neither of these laws has been found unconstitutional by any court.

I do note that the way the mandate was structured is entirely ridiculous. It should have been structured as a refundable tax. That is, you pay a health insurance tax to fund the Medicaid uncompensated care fund. If you instead buy health insurance, you get refunded that tax. If you buy health insurance and are below a certain income level, you get an additional tax credit too that will help you pay for the health insurance. This would be clearly related to the power to tax, and since the Constitution explicitly gives Congress the power to tax, would be utterly untouchable by any court that wasn’t made up of right-wing zealots who spit on the Constitution.

All in all, the HCR bill was poorly written, basically a mishmash of every idea that’s been thru Congress in the past two decades all munged into one huge monstrosity of a bill. That said, the system it sets up is better than the current situation. Of course, anything short of a guillotine is better than the current situation…

- Badtux the Legal Penguin

6 Bryan { 04.05.12 at 3:50 pm }

Badtux, you can’t operate an insurance company in any state without registering in that state, and many states have control over the rates that insurance companies charge. That is real regulation. Insurance is state-based which is one of the things the insurance industry wanted to be ‘fixed’ in the ACA, and one of the few things that didn’t get thrown in.

The bill was so heavily amended with special provisions to win individual votes, that it lost all of its focus. It didn’t cover everyone, and it didn’t lower costs significantly, at least not as significantly as Medicare-for-All would have done.

I will be interested in how Sotomayor votes. She is the one Justice who is known for exhaustive research for her decisions. I hope she writes an opinion, because she really provides support for her views.

With the ‘Synod’ in control there really is no way knowing how this will come out. Most of the time they create their decisions out of smoke and mirrors.

7 Badtux { 04.06.12 at 11:19 pm }

Bryan, you are utterly incorrect when it comes to insurance for multi-state corporations. That’s all ERISA and that has been true since 1974. The insurance company only needs to be registered in the state that the company is incorporated in. The State of California has very strict insurance regulations. None — zero — of them can be enforced against employers that are governed by ERISA, and that has been true since 1974, federal judges have repeatedly ruled that ERISA overrides state health insurance laws.

Probably 80% of the employees in California who have health insurance via their employer are covered by ERISA, not by California regulations. It peeves California to no end that this is true, but that’s the way the judges have ruled — i.e., that federal law overrides state law.

So maybe the Supremes will rule otherwise. But if they do, there’s going to be a *lot* of howling from big, big money, because this means that suddenly interstate corporations are going to have to comply with the rules of dozens of states when it comes to insurance, rather than comply with ERISA and that’s that. It’s the same argument used against Internet sales taxes — when you have 50 states, each of which is imposing their own widely varying rules, it becomes really hard to deal with. Even my own employer, with less than 100 employees total, has employees in thirteen states due to sales engineers and regional sales reps and such… so we would suddenly need to have thirteen different insurers and thirteen different insurance policies, one in each of those states? Utterly ridiculous. ERISA solves that problem for us, and for pretty much any business that’s bigger than a ma and pa corner grocery. But that’s only because the courts have ruled consistently since 1974 that the Feds *DO* have the right to regulate insurance, at least insofar as it concerns companies with a presence in more than one state. If the Supremes rule otherwise it will have to be a very narrow ruling — probably ruling that the mandates to provide health insurance to employees can only apply to interstate corporations, not to individuals or to businesses with no interstate presence — which still ends up providing health insurance for a significant majority of Americans, albeit at the cost of bottom-feeders like Wal-Mart grumbling about the expense. Well, fsck Wal-Mart. That is all.

- Badtux the Insured Penguin

8 Badtux { 04.06.12 at 11:29 pm }

One last thing: Medicare For All would have saved only around 7% of total healthcare costs, because the primary cause of high health care costs in America are providers, not insurers. Insurers pay for roughly 1/3rd of the health care costs of America, the Feds and state and local governments pick up 51% of the tab via Medicare, Medicaid, VA, Tricare, public health clinics and public hospitals, and so forth, and the rest is out of pocket. The insurers’ MLR is around 80%, i.e., 20% of premium money sticks to their pockets as overhead. You do the math. .2 * .33 = .066. It’s not a small sum of money, but the savings aren’t as tremendous as you imply.

- Badtux the Numbers Penguin

9 Bryan { 04.08.12 at 12:24 am }

Sorry, Badtux, but that is standard for all kinds of insurance, and doesn’t alter anything. The state in which the sale of insurance occurred is the regulator, not the state in which a covered incident occurs. Florida has no-fault auto insurance, but you have an accident involving an out-of-state vehicle, that owner’s insurance company doesn’t have to comply with Florida regulations, only the regulations of the state where the policy was issued.

That separation was a reason for moving from the Articles of Confederation to the Constitution, to end states bickering over these matters.

None of that changes the fact that insurance is regulated by the states, not the Federal government, it merely designates which state does the regulating.

I said they are significant, and when you are talking about the hundreds of billions of dollars spent on health care, they are. The actual providers spend an obscene amount of money dealing with multiple health insurance companies, and that overhead has significantly reduced the number of doctors who can afford to remain in a private practice. The major reason doctors join group practices is to share the costs of the necessary accounting and billing required to deal with insurance companies.

I should mention one minor problem with health insurance from large corporations, as this is something that has occurred locally for companies that win contracts at Eglin AFB – the local providers may not accept the out of state insurance. this means – you have insurance, but it is worth much less than you assumed. You have to pay the bill and seek reimbursement from your insurance company. The insurance company is not going to pay the ‘uninsured rate’ that you are billed, so it is of limited use.