• If broccoli were like health insurance

    By Jen Sorensen and via Kevin Outterson.

    @afrakt

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    • I have wondered why they did not counter with the example of vaccines. We require mandatory vaccinations, but that has not lead to mandatory broccoli.

      Steve

    • Unfortunately, the Supreme Court has been going downhill ever since the 2000 election. The “broccoli argument” has to be the most clueless, inane discussion on health insurance ever. The fact that it took place in the Supreme Court leaves me with no respect for their “intellect” or common sense.
      I think this cartoon sums it up nicely.

    • I understand the meaning of the comic re: the ACA decision, but on a different level this seems like an argument for allowing the market for health care to function more like the market for the standard broccoli we eat. Judges don’t need to make decisions at this level (or close to it) about our purchases of broccoli …

    • If Bloomberg can outlaw soda over 16 ounces why can’t he mandate you buy broccli? The argument was never health insurance is broccli. It was if they can force you to buy health insurance why can’t they force you to buy broccli? Not as easy to cartoon and lampoon but reality is quickly proving it true.

      • Bloomberg is way way off base.

        I support the health reform bill wholeheartedly. Bloomberg’s overreach must be on the grounds of the deleterious effect of over consumption. It will never stand.

        He does however, have a point if he wants the amount of sugar clearly labeled. Consumers have a right to know before deciding to ingest something.

        The reform law falls under the power of the US to address the impact of 50 mil uninsured, 25 mil underinsured and how the current system is so unsustainable that its 17% of GDP cost will fell a nation.

      • Aaron was on Pete Dominck last Friday with Eric Segall, who explained, that …. Bloomberg _could_ force everyone in New York City to buy broccoli. The states have unlimited power, under the constitution, to do whatever stupid thing they choose. The technical term for this is “regulating commerce”.

        And the Feds could not stop this because … eating broccoli is too trivial for the Federal government to bother with.

        On the other hand, health care is 1/6 of the national economy. So, the Federal government has a large interest in regulating that commerce. And if the Congress says that this is the way to do it, the Supreme Court has no justification to get involved.

    • There are no federal mandates requiring vaccination. All 50 states have mandates requiring students entering school. As far as I know, there are no mandates requiring adult vaccination at any level of government. Many private entities require vaccinations for employment.

      Mandates requiring specific behaviors of parients in regards to their children represent an area distinct from laws mandating adults. Adults are required to provide minimal standards for their children in regards to homes, food, supervision, education. That is an entirely different world than mandating things for adults.

      Perhaps you should pay a bit more attention to critical details before you fire off a comment and embarass yourself.

      • I fail to see where I said it was a federal mandate. Given that it is generally acknowledged that states have almost unlimited power to regulate commerce within their borders, the fact that no broccoli mandate has occurred there is quite compelling, IMO. If you want to be nasty, you should at least be correct. Actually, why dont you forego nasty and just discourse like a normal human being.

        Steve

    • Because broccoli is not like health care. There are many good substitutes for broccoli, but not for health care. If someone wanted to force us to eat broccoli, they would need to make a compelling case, which would be difficult with what we know about it. Also, we do have real experience with mandated care. We require vaccinations. We require emergency care. These have not lead to broccoli buying abuse.

      The slippery slope argument should be left for high school debates and lower level blogs. It should not be a serious argument in a real court.

      As to Bloomberg, you should know from the ongoing debate that it would be legal to mandate health care at the state and local level. It was done in Massachusetts by the current GOP candidate.

      Steve

      • PPACA doesn’t regulate healthcare, it regulates health insurance and there are many good substitutes for the proposed health insurance under PPACA. In fact most substitutes are far superior then those proposed under PPACA which are excessive and unaffordable.

        “We require emergency care.”,,,,be provided, not consumed. Major distinction. In exchange for accepting federal money providers must provide emergency care. That is nothing close to saying someone must consume that care. Following your argument Congress can require every man receive a colonospy every year????

        “The slippery slope argument should be left for high school debates and lower level blogs. It should not be a serious argument in a real court.”

        One man’s high school slippery slope argument is a courts limiting argument….or does that not belong in court either? “Slippery Slope” is a requirement of everylaw, if the citizens do not know the extent to which a law extends how can they obey it and how can the courts enforce it?

        “you should know from the ongoing debate that it would be legal to mandate health care at the state and local level. It was done in Massachusetts by the current GOP candidate.”

        And Obama should have left it to the States. MA is proof, as well as HI, that Obama overextended the role of the Federal Government. They have no standing to require citizens to engage in commerace. The States, as you yourself point out, do have this power and are fully capable of exercising it. On these grounds ObamaCare is unconstitutional and should be struck down. We would be far better off to let 57 states expirement with reform then one clueless federal government with a history of failure.

    • There are no federal vaccine mandates. These are all in the realm of state law (and perhaps local law). Furthermore, the mandates are for children, not adults.

      Lots of activities are regulated at state or local levels that have no Federal equivalent. That is a consequence of the 10th amendment to the US Constitution which is fairly clear:

      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    • Broccoli phobia not withstanding, federal laws requiring citizens to make purchases, including health insurance, were passed and enforced as early as the George Washington administration by a congress that included a large number of framers of the constitution, and the requirements were upheld by the courts.

      In 1790 congress passed a law requiring ship owners to buy health insurance for their sailors. In 1792, congress passed a law requiring that every able bodied white male purchase and own a musket, a bayonet, a belt, two spare flints, a knapsack, and a cartridge pouch that held at least 24 rounds of ammunition. In 1798 congress expanded the shipping health care requirement to require sailors themselves to buy hospital insurance.

      The laws were signed by George Washington and John Adams, both framers of the constitution.

      To argue that the original intent of the constitution and its framers did not allow federal mandates to force citizens to make purchases designed to protect themselves and their fellow citizens is obviously incorrect in view of these laws.

      Want a link? Here’s a link:
      ttp://www.politifact.com/rhode-island/statements/2012/jan/13/einer-elhauge/harvard-law-professor-says-early-congress-mandated/

      Basically, as they have since 2000, some members of the Supreme Court are just making it up as they go along in order to justify political decisions.

      • And it’s not like the Constitution actually says anything specifically about the Federal Government providing for national defence. Protecting our borders and the nation are exactly the same as buying health insurance.

        • Forcing merchant sailors to buy insurance covering hospitalization and nursing home care sounds a lot like a health insurance mandate to me. Forcing ship owners to provide health care and insurance for their employees is the same story.

          Interestingly, it was the gun and ammo law that encountered the most opposition. There was a failed attempt to repeal it a few years later. As noted, the health care and insurance mandate was actually extended even further.

          The framers and founding fathers obviously thought the federal government had the right to require purchases of health care and insurance by citizens when it was deemed appropriate. It’s not like they saw anything in the Constitution to forbid it.

          But just because they believed that does not mean that the Court is not free to use pretzel logic (or broccoli logic, in this case) to attain the political result they want.

          • Yet you ignore it ONLY applied to sailors, something once again clearly addressed in the Constitutiion. The over reach is forcing all citizens to buy, something which is clearly a state right unless your applying your pretzel logic.

            http://caselaw.lp.findlaw.com/data/constitution/article03/15.html

            The admiralty and maritime jurisdiction of the federal courts had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the States established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation. 744 Since one of the objectives of the Philadelphia Convention was the promotion of commerce through removal of obstacles occasioned by the diverse local rules of the States, it was only logical that it should contribute to the development of a uniform body of maritime law by establishing a system of federal courts and granting to these tribunals jurisdiction over admiralty and maritime cases. 745

            The Constitution uses the terms ”admiralty and maritime jurisdiction” without defining them. Though closely related, the words are not synonyms. In England the word ”maritime” referred to the cases arising upon the high seas, whereas ”admiralty” meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. A much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country. 746 At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance ”of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; . . .” 747 This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe. 748

            Admiralty and Maritime Cases .–Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters, and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act, while in the second category subject matter is the primary determinative factor. 761 Specifically, contract cases include suits by seamen for wages, 762 cases arising out of marine insurance policies, 763 actions for towage 764 or pilotage 765 charges, actions on bottomry or respondentia bonds, 766 actions for repairs on a vessel already used in navigation, 767 contracts of affreightment, 768 compensation for temporary wharfage, 769 agreements of consortship between the masters of two vessels engaged in wrecking, 770 and surveys of damaged vessels. 771 That is, admiralty jurisdiction ”extends to all contracts, claims and services essentially maritime.” 772 But the courts have never enunciated an unambiguous test which would enable one to determine in advance whether a given case is a maritime one or not. 773 ”The boundaries of admiralty jurisdiction over contracts–as opposed to torts or crimes–being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract. . . .” 774

          • More specifically;

            In Southern Pacific Co. v. Jensen, 806 a sharply divided Court held that New York could not constitutionally apply its workmen’s compensation system to employees injured or killed on navigable waters. For the Court, Justice McReynolds reasoned ”that the general maritime law, as accepted by the federal courts, constituted part of our national law, applicable to matters within the admiralty and maritime jurisdiction.” 807 Recognizing that ”it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified or affected by state legislation,” still it was certain that ”no such legislation is valid if it works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony or uniformity of that law in its international and interstate relations.” 808

            Congress required three opportunities to legislate to meet the problem created by the decision, the lack of remedy for maritime workers to recover for injuries resulting from the negligence of their employers. First, Congress enacted a statute saving to claim ants their rights and remedies under state workmen’s compensation laws. 810 The Court invalidated it as an unconstitutional delegation of legislative power to the States. ”The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the States all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations.” 811 Second, Congress reenacted the law but excluded masters and crew members of vessels from those who might claim compensation for maritime injuries. 812

            It doesn’t get much clearer then that. You can’t apply mandatory insurance for sailors as justification for all citizens being required to buy insurance. One is clearly addressed as a federal power and the other clearly a state power

            • However, the law forcing sailors to buy insurance did not address their activities at work, but rather their activities on shore. The law was passed because sailors did not have reliable access to the usual source of health care in the 18th century, home care by family members. Sailors were away from home.

              The law did not address their maritime activities, but rather covered their activities off duty in port, where they were placed a potential burden on the communities by requiring health care without having access to home and family.

              Polling shows that a clear majority of legal scholars disagree with the contention that health care is not interstate commerce and with the contention that enrollment in health care insurance can be mandated only by the states. Unfortunately, the more unusual position you take is probably adopted by a majority of the Supreme Court. As previously noted, this Supreme Court does not care about legal theory, precedent, original intent, states’ rights, or any other legal issues except when they can be used to further their political agenda, and are certainly willing to throw any or all of those things out when they interfere with that agenda.

            • “As previously noted, this Supreme Court does not care about legal theory, precedent, original intent, states’ rights, or any other legal issues except when they can be used to further their political agenda,”

              Unlike Liberal leaning scholars…….

              Point me anywhere in the constitution that says the Federal government should have anything to do with an individual citizens healthcare. The only way to get there is to twist, turn, and find it.

              Which political agenda is being advanced by national healthcare? The progressive agenda. Majority of Americans are perfectly happy to keep their healthcare just the way it has been for 236 years, out of federal hands.

              Legal scholars, their opinion matters almost as much as journalist, hollywood and the rest of academia.

            • We are getting a bit far afield here.

              The set of questions here are very simple:

              First, is health care interstate commerce? The answer is overwhelmingly yes, and in fact the federal government is already engaged in regulation of health care as interstate commerce outside the ACA, an action which has been supported by the courts. Therefore the ACA is constitutional as a regulation of interstate commerce, one of the powers granted to the federal government by the constitution.

              Does the federal government have the right to compel a behavior, specifically making a purchase from a private supplier, in the process of regulating individual behaviors under the aforementioned rights of regulation? (This is the broccoli argument, which is where this thread began.) The answer here is yes again, based in part on the precedents already cited dating back to the Washington and John Adams administrations, precedents concurred with by many of the framers of the constitution and by other founding fathers. Therefore the broccoli argument is specious.

              Finally, is it possible to ignore all this in order to destroy the ACA? I am afraid the answer is again yes, and that the court, continuing in the series of decisions it has made that fly in the face of precedent and of two hundred years of constitutional scholarship, will throw out the mandate in particular and probably the entire ACA.

            • “Majority of Americans are perfectly happy to keep their healthcare just the way it has been for 236 years, out of federal hands.”

              Wrong on all counts.

              The federal government is already the provider of a large part of health care in the US. The primary federal programs, Medicare and the VA system, are extremely popular with their enrollees, and in fact get higher satisfaction ratings than any private insurance programs. Most Americans can hardly wait until they get Medicare, as the post higher on this blog about Aaron’s father shows.

              More Americans approve of the ACA than oppose it, by an admittedly small margin. However large majorities of Americans approve of most of the provisions of the ACA as individual policies, including the ending of pre-existing conditions and of health care consumption as grounds to refuse or cancel insurance, ending incident, yearly, and lifetime limits on insurance benefits, extending family insurance to young adults 26 and under, ending insurance programs that discriminate against women and minorities, requiring insurance to pay for various preventative care measures, and so on.

              Americans, in fact, are the least satisfied with their health care system of any citizens of developed countries, with good reason. The ACA is by no means perfect, but it does begin to address those concerns.

            • “The federal government is already the provider of a large part of health care in the US.”

              By dollar not number of Americans

              “Medicare and the VA system, are extremely popular with their enrollees, and in fact get higher satisfaction ratings than any private insurance programs.”

              40 Trillion in debt, I would hope they at least make people happy for that amount of red ink. The VA serves a distinct population of people with higher education and income then the private system. If my entire member population was ex military I wouldn’t have half the problems I do.

              “Most Americans can hardly wait until they get Medicare”

              Because of its quality or its free/low cost at that time? Your argument is people like free stuff or more accurately like $350,000 in care for just over $100,000 in premium so we should enroll everyone?

              “More Americans approve of the ACA than oppose it,”

              Not true. Majority want it repealed, more people support specific pieces, the free ones, then oppose it, that is not the same. They would love to keep guarantee issue or kids till 26 if they stood alone but they want the bill as a whole scraped.

              Your argument fails logic. Your basically saying if we offer someone $5 they would take it. Ya no shock there. That is not what ACA is, ACA is I will give you $5 but you have to jump through all these hoops, buy something you don’t want, and give me $10. Majority of people oppose that. You can’t honestly separate the ramification of ACA and pretend it’s only the freebies.

              Satisfaction surveys of different people, from different cultures, of different products….can you offer a more worthless study then that?

              http://www.politifact.com/truth-o-meter/statements/2010/mar/10/george-will/will-says-95-percent-people-health-insurance-are-s/

              8 polls that show I was right and you don’t know what your talking about;

              • Quinnipiac University, Sept. 2009. “How satisfied are you with your health insurance plan?” 54 percent very satisfied, 34 percent somewhat. Total: 88 percent satisfaction.

              • Quinnipiac University, June 2009. “How satisfied are you with your health insurance plan?” 49 percent very satisfied, 36 somewhat satisfied. Total: 85 percent satisfaction.

              • ABC News/Washington Post, June 2009. “For each specific item I name, please tell me whether you are very satisfied with it, somewhat satisfied, somewhat dissatisfied or very dissatisfied. … Your health insurance coverage.” 42 percent very satisfied, 39 percent somewhat satisfied. Total: 81 percent satisfaction.

              • Mathew Greenwald & Associates for the Employee Benefit Research Institute, May 2009. “Overall, how satisfied are you with your current health insurance plan?” 21 percent extremely satisfied, 37 percent very satisfied, 30 percent somewhat satisfied. Total: 88 percent satisfaction.

              • ABC News/Washington Post, June 2009. “For each specific item I name, please tell me whether you are very satisfied with it, somewhat satisfied, somewhat dissatisfied or very dissatisfied. … Your health insurance coverage.” 42 percent very satisfied, 39 percent somewhat satisfied. Total: 81 percent satisfaction.

              • Mathew Greenwald & Associates for the Employee Benefit Research Institute, Aug. 2008. “Please rate your satisfaction with each of the following aspects of your health care. … Quality of health care I receive through my (health insurance) plan.” 31 percent extremely satisfied, 41 percent very satisfied, 23 somewhat satisfied. Total: 95 percent satisfaction.

              • Mathew Greenwald & Associates for the Employee Benefit Research Institute, Aug. 2008. “Please rate your satisfaction with each of the following aspects of your health care. … Overall satisfaction with my health (insurance) care plan.” 23 percent extremely satisfied, 38 percent very satisfied, 30 percent somewhat satisfied. Total: 91 percent satisfaction.

              • Mathew Greenwald & Associates for the Employee Benefit Research Institute, May 2008. “Overall, how satisfied are you with your current health insurance plan?” 17 percent extremely satisfied, 36 percent very satisfied, 33 percent somewhat satisfied. Total: 86 percent satisfaction.

    • And this is why Health Insurance is one of the most profitable industries in the world.