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Mandate -- I get that, but it was also sort of the pill insurance companies wanted us to swallow in exchange for some of those other reforms. Just seems we're getting the medicine without some of the sugar.

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Mandate -- I get that, but it was also sort of the pill insurance companies wanted us to swallow in exchange for some of those other reforms. Just seems we're getting the medicine without some of the sugar.

 

It's absolutely true this won't be as strong of a bill as I would like. And I am pissed about it. But it is still a good bill. And I am also excited by that. This bill will be one of, if not the most, progressive pieces of legislation passed in my lifetime. It will do good for likely millions of people, while also introducing necessary systematic changes. All of that, and we are facing an obstructionism in the senate seriously, not hyperbolically, unlike anything we have ever seen before.

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No one likes mandated coverage. But I've said this before, there is no economic way to make the exchange work without mandated coverage.
Just so. This is a fine example of "the ends justify the means" reasoning, no?
Coverage will expand to millions of people. Millions of people that insurance companies don't want to insure.
Insurance companies would be happy to insure these folks, if there were a way they could do so profitably. There is no benefit to insurance carriers to having millions of people lacking health insurance. Surely you understand that the reasons most of those folks don't have insurance are more complicated than "Evil insurance companies don't want to insure people"...
Furthermore, insurance companies make most of their money by (a) not competing in a marketplace
Thanks to government restrictions on interstate commerce in health insurance, yeah. But you're against that particular Republican proposal, right?
and (B) figuring out ways to deny you coverage if you have insurance.
If this is your beef, the Reid bill isn't the answer. Shakespeare said it best (in Henry V): "The first thing we do, let's kill all the lawyers"... ;)

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You're so wrong, Terrance.
A typo? That's all you got?? A little bitter about the movie trivia, are we? :P

 

I had actually thought about writing "as Dick the Butcher put it," but was afraid some pedant would think I was mistakenly attributing the quote to this guy...

 

Being a touch-typist is not without its pitfalls...

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blah blah blah

Terrance, shut up. This bill is going to be a bonanza to the insurance industry and it was effectively written by them. No strong public option, no single payer, mandated coverage for all (even though healthy enough not to need it), no serious threat to driving down prices, no negotiating on the re-importation of drugs, possible no downward shift to a 55+ medicare buy-in, no serious threat to the private insurance lobby at all. Your corporate victimhood spiel is getting almost as old as you are. And, really, you're dragging out the interstate insurance competition boogeyman again? You didn't even seriously respond when you got demolished on that in a previous health care thread. Quoting Henry VI, though, is about as Terrancey as you can get: all false erudition in the hopes of being cross-x.com's own William F. Buckley and no substance to back it up.

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A typo? That's all you got?? A little bitter about the movie trivia, are we? :P

 

I had actually thought about writing "as Dick the Butcher put it," but was afraid some pedant would think I was mistakenly attributing the quote to this guy...

 

Being a touch-typist is not without its pitfalls...

I think you missed the point.

 

You should know that the idea that insurance companies are somehow efficient examples of free market capitalism and that frivolous lawsuits are the primary reason premiums are driven up, is pure propaganda. Ask any former insurance company employee how efficient the organization was compared to other private sector organizations and you'll usually prompt laughter. I have never worked for any organization with more superfluous operational overhead as when I worked in the health insurance industry. Second place is a distant notion compared to an industry which does everything on paper, in triplicate and often has the same piece of paper reviewed for the same information by five or more people before acting on the information.

 

The only parts of the insurance industry which have any practical necessity are fraud detection and accounting. The rest of it is superfluous in a society where health care is a right. Since we haven't become that enlightened, evidenced by the idiotic debate on both sides of this bill, I could care less about this bill. (And I am uninsured and stand to get covered by it...that's how foolishly idealistic I am)

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You should know that the idea that insurance companies are somehow efficient examples of free market capitalism and that frivolous lawsuits are the primary reason premiums are driven up, is pure propaganda.
Excuse me? Where did I say that? I think my point about interstate competition being prohibited in SQ by government was the market-based point I was making. I didn't say anything about lawsuits. Nice straw-person, though. BTW, much of the inefficiency you rightly castigate can be traced to the fact that the insurance industry is heavily regulated and insulated from normal market forces...
I could care less about this bill. (And I am uninsured and stand to get covered by it...that's how foolishly idealistic I am)
If by "covered" you mean "coerced into purchasing insurance coverage," I guess you're right... ;)

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Terrance, you did imply that lawyers, not the insurance companies were the ones to blame for a lack of broad coverage. There is a common misconception that malpractice lawsuits are what drives up the cost of healthcare. And while they do to some extent, they also protect the consumer from both incompetence and systemic shortcomings. So, while killing all the lawyers might seem like a cathartic first step, it won't really lower the cost of healthcare. Bureaucrats, not lawyers are the real enemy of expanded coverage and lower costs.

 

And if someone ever tries to force me to buy health insurance, we'll find out just how constitutional that provision is.

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Terrance, you did imply that lawyers, not the insurance companies were the ones to blame for a lack of broad coverage.
Stop trying to read my mind and read what I wrote instead, please. My reference to lawyers was a reply to your remark about insurance companies looking for loopholes to avoid paying claims. My point, again, is that your beef is with the lawyers who write the legislation (e.g., "guaranteed issue," "must cover," etc.) that limits those companies' ability to control their costs on more rational criteria, and also with the lawyers who negotiate those coverages (including the loopholes), and also with (again) the lawyers who write the laws prohibiting real competition in the health insurance market (as there is in just about every other kind of insurance). Insurance companies operate within the system of rules created by lawyers. They do what they do because lawyers make it difficult and/or impossible to do anything else and remain profitable. And, I might add, it is lawyers who are chiefly responsible for the lack of portability of health insurance...

 

You can continue bashing away at the malpractice/tort issue all you want. It just doesn't have anything to do with what I was trying to say...

 

I think you underestimate the effect that having insurance coverage has on prices for health services. If most people, for instance, had catastrophic coverage ONLY and had to pay out-of-pocket for a doctor visit, they'd shop around for less expensive doctors to handle that sort of thing, and eschew some doctor visits altogether. That would certainly help exert downward pressure on prices. With the typical "comprehensive" policy, consumers have zero incentive to shop around (and to some extent are prohibited from doing so under some policies), because the care they seek is "already paid for." And, of course, the providers can charge more because they know they won't lose much business for having high prices...

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If most people, for instance, had catastrophic coverage ONLY and had to pay out-of-pocket for a doctor visit, they'd shop around for less expensive doctors to handle that sort of thing, and eschew some doctor visits altogether.

 

"I've just been in a car accident and my legs are broken. I think I might have internal injuries as well. But before we begin, could you give me an estimate for your services so I can compare with your competitors?"

 

"I have this mole that's growing like a map of Germany in 1939. It could be cancer, but it's probably just a mole. Since I don't have pre-paid care for visits, I should probably just wait and see. After all, I DO have catastrophic coverage just in case."

 

"I live in a town where there is only one hospital, and all the doctors are affiliated with it. Even though there are numerous doctors, they miraculously all charge the same amount for services. Perhaps I should drive 300 miles to a major city where there might be competition so that I don't get taken to the cleaners."

 

You're gonna have a hard time convincing me that the real problem is too much regulation.

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Terrance is so far removed from any sort of reality-based opinion on health care that it's just about worthless to even debate it with him. He ignores just about every major, serious study on the problems of health care and health insurance, does not care one bit for the fact that most people want the reasonable policy option of public health insurance, and always proceeds from the general assumption that deregulation will magically make things better. If you notice, all of his examples here are hypothetical. "Well, in a [this idealized fantasy] world, with these [unrealistic] assumptions about human behavior, we can clearly see that deregulation will solve just about everything!" Making false assumptions about how the world works and then deductively using them to prove your position is dumb as shit, but it's the Shumanian way.

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Or if it isn't, then damn quite a few things we accept as constitutional are not. Basically every liberal breakthrough of the last 80 years.

 

 

Its basically a tax.

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PS, again, the individual mandate is constitutional.

 

Or if it isn't, then damn quite a few things we accept as constitutional are not. Basically every liberal breakthrough of the last 80 years.

Not really. This article is from August and I think it assumes a public option for the mandate. I concede that THAT would be constitutional. I don't think it is constitutional to mandate the consumption of a private industry's product. If there were a public option, you would be right, it would be similar to a tax and congress would have the power to do that under the power to tax and spend or under commerce clause, but there isn't. Having just recently studied constitutional law, I do not think there is any precedent saying that congress can mandate the purchase of a business's product. However, you seem quite certain that "basically every liberal breakthrough of the last 80 years" depends on this interpretation, so maybe I'm a total baffoon. Perhaps you can clarify.

Edited by Danny Tanner

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Not really. This article is from August and I think it assumes a public option for the mandate. I concede that THAT would be constitutional. I don't think it is constitutional to mandate the consumption of a private industry's product. If there were a public option, you would be right, it would be similar to a tax and congress would have the power to do that under the power to tax and spend or under commerce clause, but there isn't. Having just recently studied constitutional law, I do not think there is any precedent saying that congress can mandate the purchase of a business's product. However, you seem quite certain that "basically every liberal breakthrough of the last 80 years" depends on this interpretation, so maybe I'm a total baffoon. Perhaps you can clarify.

 

I don't have a lot of time right now, but if you didn't finish reading the article because you didn't think it applied, I suggest fully reading it. The public option is in no way mentioned, and doesn't play a role into Mark Hall (a constitutional law professor from wake forest) analysis. The short version is this: "When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones." While the scope of the individual mandate may be larger (iffy proposition, but let's accept it for this discussion) the scope has nothing to do with the underlying power. So, either you believe that Congress has the authority to direct a private actor what to do with his/her/its money, or you don't. If not, it depends on the concept of "substantive due process." Now, the Supreme Court has not honored that in 80 years (even Scalia thinks it is a incoherent concept). Which is good for things like the Americans with Disabilities Act, or any progressive legislation that requires a private actor to spend their money in certain ways. Again, you may disagree with the scope (all citizens as opposed to private businesses owners), but the constitution doesn't limit scope, only underlying powers.

 

Now, even if you think all of that is bunk (though I am unsure why) the enforcement for the regulation is clearly legal. In other words, the fine you would pay clearly falls under the modern understanding of income taxes. If the threat was jail, that is one thing. If the threat is that if you don't have insurance than you have to pay taxes, that seems relatively straightforward as constitutional.

 

None of these arguments (and these aren't the only ones in Hall's article, simply the ones I believe are the most straightforward and obvious) depend upon the public option. Indeed, under you interpretation, as soon as the public option was not open to everyone, the individual mandate became unconstitutional. But yet most people thought that a limited public option only open in the exchange somehow made all of this constitutional? That seems hard to buy. Either it already was, or it wasn't. The limited public option has nothing to do with this.

 

This really is just a tax. Now if they required you to seek medical treatment, that would be a different question entirely.

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I did fully read that article. The article argues that it is constitutional to mandate the purchase of health insurance. I don't deny that. However, in your view, there is no difference, constitutionally speaking, from a policy in which the public is forced to buy a public good versus a private good. I am saying that there is. You try to put me in a binary in which "either believe that Congress has the authority to direct a private actor what to do with his/her/its money, or don't," saying that substantive due process must be brought back in order to think otherwise, but that binary is illegitimate. Even your sources admit there is no precedent for something like an individual mandate to purchase a product, let alone a private product. To me, whereas a case has never been tried in which congress passes a bill that mandates individual citizens purchase a private product with no public alternative for the supposed "general welfare" of the people, it seems that the court could legitimately take issue with the bill. In short, your assertion that because congress has a certain power, the specifics of their attempts to exercise that power are somehow inherently irrelevant, relies on fabricated constitutional history.

 

Next you try to spin this all into a world where my interpretation makes the Americans with Disabilities Act unconstitutional, but that relies upon a strawman interpretation of my argument, which is that CITIZENS cannot be forced to purchase a private product. If the Americans with Disabilities Act required private citizens to make their homes handicap accessible, I would find it unconstitutional, but the bill was all about either private or public institutions. My interpretation is compatible with the Americans with Disability Act.

 

Lastly, you claim that because your author doesn't specifically mention a public option, it is therefore irrelevant to his analysis. I think that is incorrect. Consider the last paragraph:

 

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

 

Right there he acknowledges that mandating the purchase of a private product is not as much of a constitutional "sure-thing" as you say it is. Constitutional law is specific, the court very rarely issues broad sweeping declarations, and that is intentional. Consider these phrases specifically in your author's analysis:

 

 

"... allow people to opt out if they purchase private insurance."

 

"social insurance faces none of the alleged Constitutional infirmities of mandating private insurance."

 

These are not components of the Senate bill. This article was written assuming a different bill than the one currently being considered.

 

Lastly, you say:

 

Indeed, under your interpretation, as soon as the public option was not open to everyone, the individual mandate became unconstitutional. But yet most people thought that a limited public option only open in the exchange somehow made all of this constitutional? That seems hard to buy. Either it already was, or it wasn't. The limited public option has nothing to do with this.

 

I'll concede this point. However, let's consider a world in which this Senate bill is struck down as unconstitutional versus one in which a limited public option was struck down. If a limited public option was struck down on the grounds that it must be available to everybody, we would probably revise the policy to make it more available. Ideally they would choose to make the public option available to anyone with no mandate. On the other hand, if the current Senate bill is struck down, it doesn't seem likely that a push to add in a public option for everyone will be the first thought of Congress. What would probably happen is that they would just remove the mandate, and then all your bargaining power is gone and your policy loses its one substantial cost-reduction/containment measure. If the Senate passes and the court strikes down one bill, we get a better policy. If they strike down the other, we get an even worse one.

 

Time will tell what happens here, but I'm just warning you that you might not even end up getting this shitty policy that you've been so willing to settle for.

Edited by Danny Tanner

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I have serious doubts about the constitutionality of any government policy, even the American's With Disabilities Act, which mandates one private entity do business with another. I think the government runs out of power right when it goes from creating an incentive (like a tax break for levels of compliance with the ADA) to mandating commerce (Forcing business A to buy a particular product from company B or C). Nothing in the constitution grants the federal government the power to create an industry which could not survive in the markeplace (creating a demand is another thing altogether). And because the Constitution doesn't give that right to the government, the tenth amendment gives it to the individual or the business in question. It takes law school to learn how to read poorly enough to not grasp that.

 

And the real problem with challenging the law on this front is what to do about the Federal Reserve; but not an insurmountable one I think. All the monetary and business interests in the country would see the status quo maintained, meaning the legal challenges would be tremendously difficult and expensive as well. So I am not holding my breath.

 

But anyone with a working understanding of politics and eighth grade reading skills and who has read the constitution knows that its a guideline more than a rulebook to the clowns in charge.

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God dammit scu, I thought you weren't one of the ones who masturbates to the constitution.

 

Dammit!

 

I'll try to get to Danny's response later (dinner party prep right now), but first, wtf?

 

I don't even understand this comment.

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Danny, you claim that the author concedes that other forms of mandates might be unconsitutional. But, for analysis purposes, what part of the Constitution do think the Senate bill would violate?

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I think it would be an unconstitutional application of congress's power to regulate commerce.

 

so I am guessing you feel the same way about car insurance being madatory? I mean, there is no public car insurance that I am aware of. If so, that doesn't seem like it is going away anytime soon...

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