Jun 22 2009
The constitutionality of healthcare?
David Rivkin and Lee Casey, a couple of Republican Justice Dept. lawyers, wax about the issue in today’s Wall Street Journal. The two lawyers point an implied finger and an accompanying ha-ha at liberals for interpreting in the constitution a right to privacy and abortion rights.
This is how they start their editorial:
Is a government-dominated health-care system unconstitutional? A strong case can be made for that proposition, based on the same “right to privacy” that underlies such landmark Supreme Court decisions as Roe v. Wade.
Haha, you stupid liberals, all these nonsense constitutional rights you’ve been making up for the last 50 years have come back to bite you in the ass. Hahahaha.
Well, they put it a little differently than that, but still:
It is, of course, difficult to imagine choices more “central to personal dignity and autonomy” than measures to be taken for the prevention and treatment of disease — measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be “necessary” by an expectant mother and her physician.
If the government cannot proscribe — or even “unduly burden,” to use another of the Supreme Court’s analytical frameworks — access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?
There are a couple of problems with their logic. One is that abortion is a right, not an entitlement–and it’s kind of scary that Republicans don’t know the difference between the two. There is a big difference between the state saying you can’t do X, and the state saying the government is not going to allocate money to pay for you to do X. You’d think Republicans would get that distinction, especially since they love passing laws refusing to have taxpayer dollars go to abortions.
There are a couple of remote scenarios in which Rivkin and Casey’s argument might hold a minimal amount of water. These are the boogeyman circumstances the Republicans have been trying to scare people with for the past few months. One is the nearly impossible chance that the healthcare reform bill establishes a national healthcare system and outlaws private options. Regardless of what Republicans say, that’s not on the table right now, and it has no chance of actually happening.
The second is another Republican favorite whereby a public option in the bill–allowing for private citizens or businesses to opt to purchase a public healthcare option over a private one–will eventually price out the private options. Eventually, say the Republicans the public option would eventually become the de facto national healthcare system because no private actor could compete. That scenario is also very unlikely. All you have to do is look at the medicare supplement insurance staple industry. Medicare may have priced some private actors, but it certainly hasn’t completely taken over that market. Remember, Rivkin and Casey’s doomsday scenario only works if the government’s is your only option, and its limitations become a de facto prohibition.
But even if Republicans are right, even if the public option becomes so pervasive that it’s no longer an option, but your only choice, a potential constitutional issue is hardly an argument against it.
We have far more rights vis-a-vis our governments than we do when dealing with private insurance companies. This is where Republicans usually chime in and inform us that when you have private actors providing healthcare, the marketplace usually sorts everything out. But they don’t tell you that when you have five HMO providers refusing to cover the same service, there is nothing you or the marketplace can do about it. And, according to the landmark Supreme Court case, Blue Cross Blue Shield’s Boot v. Your Ass, there is nothing you, the marketplace, the Constitution, or the Supreme Court can do about it.
All of the sudden that mythological constitutional issue is looking pretty good, isn’t it?
Thank you, sir. If a few of those “Grass roots Americans” the Republicans have planted at the town hall meetings would read this, and share it with those who really are there to learn about the Bill, perhaps someone at the meeting might just learn something above the roar of disruptions teams.
Weary of the CNN reports about violence and disruption, I pulled up the bill on the congressional website. Surprise! All the rhetoric these Republican zealots are spewing is reeking with the stench of BS.
Simply, the bill is in fact, quite constitutional.
Is the issue one of constituionality or one of what’s really best for the American people? Is this a talking point, or a reform that’s been on the table for over 40 years?
When Republican legislators are being paid huge sums for representing not the American people, but the American Insurance Greed industries, while cavorting with who knows whose significant other in Las Vegas, Argentina, The Carolinas or at C Street, we, the people are starving for representation and health care. We can’t afford thier appetites for graft and corruption, but we can certainly take a stand against the very UNCONSTITUTIONAL behaviors that would land most of us either in divorce court or jail.
Lies, deception and illegal behavior were not the intended hallmarks of our legislators according to that document, but then if the President says it’s so, I guess it’s law? Especially if he’s in cahoots with his second in command BS’ing us about who was responsible for 9/11 and who got waterboarded when.
I’m a Vietnam veteran, and served this country for more than 20 years before retiring, and I’m sick from the Republican “No” crap. Let’s just blow them off and pass the healthcare bill without them.
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The author of this article and the author of the comment above display a room tempature IQ.
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Andy Reply:
August 26th, 2009 at 1:46 am
It’s spelled temperature.
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If the founding fathers who voted on the Constitution in the late 1700s were transported to the present which side of this debate do you think they would be on? People try to figure out all kinds of ways around what the found fathers said. They completely ignore the context of what they said and devise all kinds of new meanings. If you read the founding father’s writings it’s pretty clear they would not approve of a vast majority of what the government does these days, and it’s clear the government has gone far beyond the powers granted to it. My sentiment on this is if you don’t like the US Constitution and what it stands for than move some place that has one more to your liking. There are plenty of places that already have the system you want! Don’t further screw it up for those of us who really do want freedom and live in the only place in the modern world where you can still get it… The United States of America.
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Andy Reply:
November 9th, 2009 at 1:57 am
Where in the writings of the founders does it say they were against healthcare reform?
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Ittiz Reply:
November 9th, 2009 at 11:10 am
It’s not the idea of health care reform, it’s the substance of how some people today want to carry it out.
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How can you separate the idea from the substance? This weekend the idea got closer to reality.
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Ittiz Reply:
November 9th, 2009 at 2:29 pm
In most cases it’s possible (”there is more than one way to skin a cat”). If you think it isn’t in this case then I fall back to my original reply.
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Adrian Reply:
November 10th, 2009 at 2:12 pm
Huh?
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Mock & Tolin: The Constitutionality of the Health Insurance Tax
Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo — Orfalea College of Business) have posted Purchase or Else: The Health Insurance “Tax”, 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:
With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”
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Does this topic even matter anymore? After the terrific win in Massachusetts… the healthcare takeover bill is D-E-A-D…. yay!
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H.R. Reply:
March 24th, 2010 at 11:58 am
You powers of prognostication are formidable…
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H.R. Reply:
March 24th, 2010 at 11:58 am
*Your
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