nos-trum. pronunciation: \nos'-trum\. noun. Etymology: Latin, neuter of noster our, ours.
1. a medicine of secret composition recommended by its preparer but usually without scientific proof of its effectiveness.
2. a usually questionable remedy or scheme.
See here for more discussion.

Tuesday, December 14, 2010

Explanatory Note On The Ruling That Health Care Reform Is Unconstitutional

A flurry in the news about the federal court ruling in Virginia.  The judge said requiring everybody to buy insurance is unconstitutional.

The news reports mostly don't explain this very well.  Here's my stab at it.

The first thing to know is that our stupid Congress wrote the law without putting in a statement that said, "Even if some piece of this can't survive legal scrutiny, the rest can go forward."  (the "severability" issue).  It's a simple sentence, and is done all the time.  They didn't do it here.  So, if one part of this law is unconstitutional, much of it is.  Dumb.

On the other hand, everybody seems to agree that if healthy people aren't contributing, there isn't enough money to pay for the sick people.

That's why the "constitutionality" issue is so important; it could undo the whole shebang.  The Constitution says Congress can regulate "commerce."  But people who don't buy insurance aren't engaging in any commerce--unless we define commerce as including not engaging in it, which sounds nutty.  There's nothing in the Constitution that says the government can make you buy a product just because you live here.

It's confusing, because other countries require citizens to have coverage.  The difference is, their "constitutions" don't limit the power of government like ours does.  You have to remember that the Founding Fathers were working to put together a document that would ensure government couldn't become over-powerful.  They fought a revolution for that reason.  It's why our constitution has so much language in it about how the government can only do certain, defined things (the "enumerated powers").

People say, what about car insurance? States require that, don't they?  But the logic is different.  If you don't drive a car, you don't have to buy auto insurance.  Millions don't.  Health insurance is being required by virtue of being alive.  You can't opt out like non-drivers do.  Many, like non-drivers, don't plan to use health care.  Plus, states can regulate some things the federal government can't.

Some people say, "Forget the Constitutiton.  Times have changed.  We just need health care for all."  But, the law works by "establishing precedents."  Some fear that a precedent that says the government can make you buy something because it's in everybody's interest could be used to legitimize forcing any purchase that the government sees as good for all.  Only the safest cars, only nutritious food, etc.  Government already tells us a lot of what we can and can't do.

Some people are OK with being told things like this because they see a benefit that outweighs the loss of individual choice.  Others aren't, saying that without the freedom to choose poorly, there is no freedom.

Stay tuned.  As I've written before, the problem with HCR was not the goals, it was the incompetence in framing it.  All of this could have been avoided.

Doc D

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