-
Curbing the IRS
June 12, 2013 | 70 comments
-
Can We Get It Back?
June 5, 2013 | 39 comments
-
The Ronald Reagan of Virginia
May 29, 2013 | 72 comments
-
Time to Go for the Kill
May 22, 2013 | 67 comments
-
Obamacare Implodes
May 15, 2013 | 41 comments
The Right Prescription
The Bell Tolls for Obamacare
The key to the Supreme Court’s upcoming ruling will be clear recognition of constitutional alternatives to Obamacare.
(Page 2 of 2)
Such a health care safety net is entirely constitutional. Consequently, striking down Obamacare as unconstitutional does not mean condemning the needy to suffering without essential health care.
Exploding Medicaid
The
Supreme Court in deciding to hear the Obamacare appeal included the
question of whether Obamacare’s massive expansion of Medicaid is
constitutional. CBO projects that by 2021, Obamacare will explode
the Medicaid program for the poor to covering 100 million
Americans. Medicaid is financed jointly by the states as well as
the feds, so this explosion imposes massive costs on the states.
Can the federal government do that constitutionally?
The traditional answer would be if the states do not want to accept the federal assistance financing Medicaid with all the strings Obamacare attaches to that assistance, the states are free to turn down the federal Medicaid funding. But the challenge to Obamacare on these grounds argues that the federal Medicaid financing is now so enormous, and so essential to serving the poor in each state, that states as a practical matter are no longer actually free to turn it down, regardless of the strings attached.
Of course that is true. In regard to Medicaid, Obamacare treats the states as sub-departments of the federal government, like local government units in France, rather than as the sovereign governments they are under traditional American federalism. Federalism was a chief concern of ACRU founder Robert Carleson, as well as his boss Ronald Reagan. So the ACRU will take the lead in arguing this cause before the Supreme Court.
Political Consequences
The Supreme Court decision in this case will come down in the
summer of 2012, just before the election. Regardless of the
outcome, the decision will be a political disaster for Obama’s
reelection. If the Court strikes it down, that will confirm that
Obama wasted his first two years in office taking America on an
unconstitutional frolic, rather than addressing America’s most
urgent problems in an effective way.
If the Court upholds it, then voters will know the only way to get rid of it is to vote Obama and his Democrats out of office. That will be a result they will have so richly earned.
But if my predictions above are correct, the Court’s decision will not only begin the long road back to the real Constitution. It will be the first step in real entitlement reform, as the Republicans likely to take over in 2012 are already coalescing around sophisticated entitlement reform with proven political viability. More on that next week.
About the Author
Peter Ferrara is Director of Entitlement and Budget Policy at the Heartland Institute, General Counsel of the American Civil Rights Union, Senior Fellow at the National Center for Policy Analysis, and Senior Policy Advisor on Entitlements and Budget Policy at the National Tax Limitation Foundation. He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush.
Letter to the Editor View all comments (140) | Leave a comment
More Articles by Peter Ferrara
More Articles From The Right Prescription
http://spectator.org/archives/2011/11/23/the-bell-tolls-for-obamacare
Follow us:
ADVERTISEMENT
SPONSORED LINKS
FLASHBACK TO: 1995
-
Pope Culture
A man of faith in a godless age is hitting Americans where it hurts.
-
Why the GOP Does Not, Like, Totally Suck
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
-
Dames at Sea
-
In the Absence of Guns
In Britain, defending your property can get you life.
-
The Metaphysical Martini
-
Counting the Costs of Clintonism
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
-
Chuck McHagel
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
-
The Legacy of Old John and Mother Fresh-Roasted
-
It’s the Best Time of the Year
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
-
The Bush Crack-Up
Was the President done in by the economy, or by the politics of the economy?
Clip of the Day
ADVERTISEMENT
Dick Nome| 11.23.11 @ 7:41AM
The Death panels are comiong. A Neurosurgeon called in to Mark Levin lastnight and relayed information from a meeting he attended in DC where HHS was putting out new guidelines on Medicare and Medicaid. Patients were rere referred to as "units' and are to be given comfort only, no surgery or therapy for stroke or other neurological emergencies. This is chilling. Gummint and the Oborg collective considers us 'units'. So tell me just who the hell is gutting Medicare and throwing granma off the cliff. It's the Liberal Democrats.
nem| 11.23.11 @ 9:49AM
I heard this exchange last night as well. I was sickened by the whole concept of government drones having the final say in who gets care and who does not. How many 70 year olds do you know who are healthy vibrant and still working. My own parents come to mind and they are people not UNITS. Sarah Palin is right. There are death panels. The decision to treat or not to treat needs to be left with the family in collaboration with the doctor. This is all very frightening. I keep posting what this neurosurgeon said on every blog I can
rn| 11.23.11 @ 11:39AM
How many 70 year olds are vim and vigorous to go toe to toe with 40 something bureaucrats? Oh, sure. There are some that are plenty feisty and mentally cunning. But fighting the machine takes strength, endurance, agility.
All totalitarian societies count on this. They prey upon the weaknesses and natural frailties of those least able to defend themselves (the very young, the elderly)
Wayne| 11.23.11 @ 4:52PM
I play in a 60+ softball league and we have players in their 80s. One had brain surgery for a benign brain tumor and was back playing 3 weeks later. He even got better.
Of course, the rules these government nitwits come up with NEVER apply to them. They are elite, and have their own health plans.
DTOM| 11.23.11 @ 9:49AM
Dick,
They are no longer "Liberal." They are now SOCIALIST. Really, it's time to call spades spades.
TrueBlue| 11.23.11 @ 11:38AM
Nah, socialist would mean they were working for the common good. Really they're just trying to recreate a monarchy with the "elites" as our nobility. At best they are communists, socialists they are not.
DTOM| 11.23.11 @ 12:34PM
Socialists do NOT work for the common good. They claim to, but they really are just trying to find somebody else to do their work for them.
If you don't agree, then you are not a useful idiot, you are an unrepentant socialist. Socialism is a political system that has never worked in the real world, in the long term. In the short term, it has served the interests of the party leaders quite nicely. The working schlub proletariat, not so much.
The watered-down version of 'the common good' is 'doing it for the children.' More people have been bamboozled and over taxed and over-regulated in the name of the children than almost any other 'cause.'
Utopia is utopia because it does NOT exist.
How many days in a row will you go to a bar to get the "Free beer tomorrow!" advertised on the sign?
If it's more than one, you are back to being a useful idiot.
Well, pick one...
TrueBlue| 11.23.11 @ 5:10PM
You're talking the reality of socialism and I'm talking the literal definition. That said I agree with you on how socialism has actually been implented in the real world. It will never work in human society because humans just don't think in a utopian mindset, and we never will.
Even if someone DID manage to get humans to think in a utopian mindset it would completely stagnate human society. Nobody would do anything beyond what was necessary for society to continue as it was, with no concern or motivation to advance beyond.
Leveut| 11.23.11 @ 5:51PM
In that noted socialist workers paradise, the Union of Soviet Socialist Republics, there was The Masses, and there were their rulers, The Nomenklatura.
JmsA| 11.25.11 @ 10:53AM
Socialists are communists taking a break, as my father used to say.
Scott| 11.23.11 @ 1:37PM
Medicare itself is socialism by definition. You are making the argument for expanding socialism without limits. HHS is actually putting caps on what the gov't will spend on care.
Again, if you have the resources (or your family does) you can buy supplemental insurance and or pay for procedures and care out of pocket.
Otherwise, quite being a hypocrit.
Wayne| 11.23.11 @ 4:55PM
We paid into medicare for 40 years. It is not being a hypocrite to expect receiving the benefits we paid for. Return the money, then we will seek out alternatives.
mulp| 11.23.11 @ 5:55PM
I bet you paid into home insurance and auto insurance and life insurance for most of your working life, but it ends when you stop paying because they are pay as you go, like all insurance is.
The only way to pay for your risk based needs other than FICA funded insurance is to save the maximum amount you will ever need withing five years of beginning work. After all, after five years of work, you qualify for benefits after you can no longer work, either from permanent disability, or getting so old you are not able to work to the standards employers demand. You have already had the benefit of Social Security and Medicare for the past 33 years - you just didn't decide to become disabled and dependent, or dead, to collect the benefits. Like for home/auto/life insurance - you didn't let your house catch on fire, or crash your car or die to collect on the 40 years of payments you made.
You have been covered by Medicare since you were born because your parents paid Medicare premiums, and then as you worked you paid Medicare premiums providing Medicare coverage if you become disabled or get certain diseases. If you were disabled from birth, your parent's Medicare coverage included you.
And since Reagan, the FICA tax pays only about 25% of the cost of Medicare, down from the 50% in the original LBJ version of Medicare.
boomerbabe| 11.24.11 @ 2:32AM
I really appreciate your comments -- it puts Medicare into a perspective I rarely read or hear. I always hear the "I paid into it - they owe it to me" phrase, but now I have a better response than my usual "You didn't pay into it what you will take out of it" reply. Very logical and thorough explanation of what insurance is. Thank you.
Simon Templar| 11.25.11 @ 1:44PM
Logical and thorough explanation? You rarely see it as it makes no sense, idiot.
The medicare program is a government insurance program whereby people do indeed pay into it all their working lives through their weekly paycheck deductions. The government had the responsibility to manage those monies and provide coverage to those eligible now to collect those benefits they and the rest of us agree to pay for that medical coverage in old age. It is amazing I have to explain this. This is not the same as life insurance or home insurance.
Given you are a boomer, I should not be surprised that your useful idiot mind can not grasp this. Of course, people take out of insurance much more than they put it even if we did except the idiotic premise that these insurances are alike. That is the whole point, moron.
The issue here is whether we want goverment in the businesss of health insurance as they can not manage these programs efficiently or without corruption.
coal carrier| 11.25.11 @ 8:18AM
Mulp,
You are comparing apples and oranges (life insurance, car insurance to Medicare). I paid into Social Security for 46 years and into Medicare from its inception. I am 66 and I am still paying into Medicare. I pay into it from my Social Security payment every month. I also pay into the Medicare Part D drug plan every month from my SS check. I also pay, out of pocket, for supplemental plans that cover the costs that Medicare does not cover. In addition, I am still paying into Social Security, Medicare and Medicaid for the consulting work that I get paid for.
The point is that when it comes to Medicare, you don’t stop paying. In the case of Social Security the money that I paid in since 1963 is what I am collecting now. Remember Social Security and Medicare are mandatory. You do not have a choice to pay or not pay. I also paid into 401 K accounts and IRA accounts.
The issue is not as simple as you make it sound.
Vic| 11.26.11 @ 12:35AM
I hate to be the bearer of bad news, but the SS checks you get are NOT the money you paid in since '63. They are the monies paid in by current payers, as the first recipients never paid in at all. You were paying for theirs in '63, not yours. This idiocy was and is a ponzy scheme pure and simple. It will end when the money runs out as we cannot afford it. The baby boomers aborted too many of their children for it to remain sustainable.
coal carrier| 11.26.11 @ 8:37AM
Vic,
Different issue. I know, I understand the SS formula. You do not have to explain this to me. One of the main reasons why SS will run out of money is that for 50 years the politicians have been using the money for other pet projects and leaving IOU’s. If they didn’t steal from this account there would be $2.5 trillion in surplus there today. Does there need to be some adjustments to the program? Yes, but that was not my focus in my post to Mulp.
Nick| 11.26.11 @ 2:20PM
Coal Carrier,
You will get back everything you paid into Socialist Security within a few years. After that, you are receiving welfare.
Don't believe me? Figure it out, the next time you get that breakdown from SS.
It is precisely this "I paid into it all of my life" attitude that prevents us from reforming Socialist Security and Medi-scare. People who have six and seven figure incomes have no problem cashing their government checks, because "I paid into it, I'm getting it back."
Who thinks it's okay for Ted Turner, Hugh Hefner, or Warren Buffett to receive SS checks from people working two or three jobs just to put food on the table for their kids?
By the way, the companies that you worked for, who paid the employer's half of FICA for all of those years, will never get their money back.
I agree with your critique of Mulp, though.
acturaius| 11.26.11 @ 10:26AM
The FICA premiums paid into the SS Trust fund for Old Age, Survivors, and Disability Insurance (OASDI) pay for all of these occurrences. Why on earth would one need to fund the costs in the first five years?
The HI part of FICA funds Part A of Medicare. Between HI and the Part B premiums, 50% of total Medicare costs are funded from dedicated payments. The other 50% is funded by general revenues.
Notary Sojac| 11.23.11 @ 11:42AM
Where do you think the money to pay for the looming Medicare deficits will come from?
Scott| 11.23.11 @ 1:38PM
It comes from the sky. Don't you know, we should perform brain surgery for every elderly patient that presents...because our resources are endless in the world of Dick.
Scott| 11.23.11 @ 1:35PM
I'm sure if you have the funds to take care of yourself and pay for your care, you can get whatever you wish. Dick Nome is arguing for limitless socialism.
Wayne| 11.23.11 @ 4:57PM
No he is not, but you are reflecting the generation warfare something like medicare presented. But people made their plans according to the existence of medicare. Like it or not, it is a moral obligation of the government.
Desiree Effner| 11.25.11 @ 12:47PM
The Supremes won't accomplish anything on Obamacare. One of their libs will recuse herself and the vote will be a tie. Don't underestimate these people's ability to strategize. They will get what they want.
idalily| 11.25.11 @ 2:44PM
Um, if a lib recuses, that means it's a 5-3 for overturn. Where do you get a tie?
Timothy L. Pennell| 11.23.11 @ 8:08AM
It's too bad that, like any good South American Country being run by a Leftist Dictator, the Media in THIS COUNTRY, is squarely in the POCKET of the Leftist Dictator. Otherwise, the idea that a President of the United States would be Running THOUSANDS of High Powered Weapons to Mexican Drug Cartels, WITHOUT the knowledge of the Mexican Government, might actually make the Evening News? A President who continues to go on EXPENSIVE Vacations, all over the world, while Oil floods the Gulf, or a WAR of His CHOICE is beginning, or there are "Important" Committees trying to "Save the Country", might be cause for SCORN and RIDICULE.
In fact. If the Media, in this Country, didn't worship every bowel movement of their Messiah, they might be demanding the RECUSAL of the Former Solicitor of the Obama Administration, for all things OBAMACARE related?
She couldn't be more CONFLICTED, if she was an Ex-Prison Guard at Treblinka, overseeing the Trials of former SS Officers. Yet, all we get from MSM, is stone deaf SILENCE. Not total Silence. Some, on the Island of Misfit Liberals (MSNBC) are adamant that, because that HOUSE NEGRO/UNCLE TOM's - WIFE went to a Tea Party event, Clarence Thomas should recuse HIMSELF, and then KILL HIMSELF, and Alito, for good measure.
I wish I shared your enthusiasm. I wish hat I could count on the COURT, to make the Obvious Decision. But, I can't. I thought that they would NEVER allow McCain/Feingold. I thought that "Congress shall pass NO LAW, abridging the Freedom of Speech". I thought that that there was no RIGHT to murder your Unborn Child. I thought that "The Separation of Church and State" was something found in a LETTER, from Thomas Jefferson, to the Danbury, Ct. Baptists. NOT in the Constitution. How can you forbid Christmas Decorations on the Public Property, in a Country where CHRISTMAS is a National Holiday?
So, please Peter. Let's not count any chickens. There's still time for "Finding" a little Boy, who will SWEAR that Anthony Kennedy gave him a dollar for a pair of his Spider Man Underpants, so he could wear them on his head, when he goes to bed.
BY ANY MEANS NECESSARY!
WRTolkas| 11.23.11 @ 8:08AM
Dear Mr. Ferrara,
I honestly pray that your prediction is correct.
Everyone have a safe Thanksgiving. So far, we have many blessings. I hope the two most important blessing for next year is the fulfillment of Mr. Ferrarra's prediction and sending that Kenyan born muslim marxist back to chicago.
DTOM| 11.23.11 @ 9:48AM
Spare Chicago! They already have Rahm running them around!
Send Obama back to Kenya! He seemed to like it there, better than here...
Ken (Old Texican)| 11.23.11 @ 8:40AM
Peter,
again, thank you.
joanne| 11.23.11 @ 8:41AM
I agree 100% with the author and the comments. This wolf in sheeps clothing is out for two things-his agenda to destroy us, and to keep his power. He sees himself as a king.
God help us.
Peppermint Tea| 11.23.11 @ 8:59AM
Pray for Anthony Kennedy.
Impeach Sotomayor and Kegan for not upholding the constitution on the McCain-Feingold. Impeach McCain and Feingold, too.
DTOM| 11.23.11 @ 9:47AM
The voters of Wisconsin already de-elected Senator Feingold and replaced him with Ron Johnson. You need to find out more about him.
Arizona, is AWOL on McCain.
Sorta like he's AWOL on Conservatism, and heck, he's AWOL on Republicanism.
da monk| 11.24.11 @ 11:36AM
Permint Tea: Turn your calendar to a new page: Feingold has been out of office for two years.
lge4FT| 11.23.11 @ 9:19AM
Again Peter, an excellent article.
We have much to be thankful for. May God grant us the great gift of the repeal of Obamacare through the decision of the Supreme Court, by this time next year for a truly historic Thanksgiving in 2012.
Kent Lyon| 11.23.11 @ 9:29AM
Mr. Ferrara's reasoning is impeccable, and he does, and has been doing, the nation a great service for many years. Unfortunately, the Supreme Court will follow neither the Constitution nor reason in making its decision. Kagan will not recuse, as she is required to do by law, and Kennedy will vote to uphold Obamacare, as did Silberman, in an approach devoid of reason or rationale. Why? The fix is in. Obama is Supremely confident that his signature issue will be upheld because it is the Progressive way to empower government at the expense of the citizenry. And Kennedy is too pusillanimous to controvert the supposed great tide of the Progressive (read, totalitarian) march of history, into the abyss of elitist, autocratic government, the ideal of American elite for over a hundred years, from Teddy Roosevelt to Woodrow Wilson, FDR, Lyndon Johnson, Bill Clinton, and Barack Obama, the greatest proponent of them all for overturning the Constitution. Teddy was hamstrung by Taft, or he would have long since accoumplished the complete vitiation of the Anmerican Constitution.
The question is, what will happen to the nation if Obamacare is upheld? There will be no reform nor rollback of entitlements in that case. Mr Ferrara is placing his hope in a Republican establishment that has proven itself incapable of resisting, indeed has aided and abetted, the advance of leviathan. America will continue its headlong plunge into dependency and decline, and eventually collapse as a nation, as the old Soviet Union. The path to political hell (loss of liberty and entitlement enslavement and national default and financial and political collapse) is paved with Progressive intentions.
I am predicting a 5-4 decision upholding Obamacare. That event will be a shock to the electorate, resulting in the re-election of Obama, who will be celebrating all over the country, and the electorate will re-enter the soporific stupor of messianic delusion in which it elected him the first time.
DTOM| 11.23.11 @ 9:44AM
Hope you're wrong.
Maybe Justice Kennedy might see himself stopping a bad trend...
Maybe Justice Kagan will receive a midnight visit from an Angel telling her to be square.
Wasn't it McCain-Feingold that Bush said we didn't need to worry about because SCOTUS would sink it?
I think I'm getting a headache. Oops, better not, can't afford the aspirin anymore.
John Navratil| 11.23.11 @ 11:08AM
Kent Lyon,
It sounds like Cloward-Piven, again.
RCV| 11.23.11 @ 2:09PM
I'll go you one further. It will be a 6-3 opinion upholding the Health Reform Act, with Justice Scalia joining Justice Kennedy. His marijuana commerce powers opinion and his general respect for stare decisis will cause him to give a grudging concurrence. Justice Kennedy will write an opinion for the Court, which will garner only a plurality. Scalia will write a concurrence for himself explaining why he reluctantly concurs. Breyer will write a concurrence for the liberal wing. A fiery dissent by Alioto with a separate long and scholarly dissent by Thomas will complete this plethora of opinions.
Save this email for June and see if I'm right.
RCV| 11.23.11 @ 2:11PM
Sorry. That should have been "Alito" not "Alioto".
John Navratil| 11.23.11 @ 3:01PM
RCV,
Intrade.com has it trading at a 44% chance to be declared unconstitutional before then end of 2012. You are one the right side of those who are putting their money on it.
PaulyD| 11.24.11 @ 9:35PM
RCV,
I think you've nailed it. I'll bet its 6-3 upholding too.
But if that happens, I think it will re-energize the Tea Party and insure an Obama defeat.
RCV| 11.24.11 @ 11:52PM
That may be true as well. But if Romney is the nominee, it will be harder to use the issue as a sword.
idalily| 11.25.11 @ 2:51PM
Am I the only person who finds very cold comfort in the idea of Obama losing the election because Obamacare was upheld?
DTOM| 11.23.11 @ 9:37AM
Mr. Ferrara;
You write:
"A complete health care safety net assuring essential health care for all can be achieved with no individual mandate and no employer mandate, for just a fraction of the cost of Obamacare, actually sharply reducing government in the process."
Exactly where in the US Constitution is this power to create a health care safety net granted to the Federal government?
I say it is not. Nobody has a right to free or subsidized health care provided by the Federal government. States can do it if they so desire, but providing subsidies to a private enterprise is NOT one of the authorities enumerated in the Constitution. That's all.
Some may think me Cro Magnon for such unpopular thinking. Too bad. I take care of my health and expect that I will require far less medical treatment. Yet every time I access paid health care I see ridiculous costs from suppliers and other patients complaining that they have to pay anything for someone to care for them. When they start complaining that they need a new car, a new kitchen, a new bathroom that the government should be paying for our country is doomed. Oh wait, those Obama voters in Florida have already asked for that....you heard the quote from '08, haven't you?
There ain't no such thing as a free lunch!
rn| 11.23.11 @ 9:55AM
The only health issues a perfectly healthy male between the ages of 19 - 35 might experience are dental. One pays dental out of pocket during those years, just as many Americans pay dental out of their pocket for most of their lives.
If a male eats reasonably well, doesn't smoke, doesn't drink, and exercises some, these are the healthiest years of life. One incurs no issues. None.
Enacting law which forces this huge segment of younger adult males to purchase when no purchase (for a service that would go unused) is criminal.
This is a chapter in a man's life that a man gets himself established in a career and can build up money to be able to afford and provide for a wife and children.
If we make him less financially independent due to fines/fees (that is what this is), he won't marry. He'll delay that. Ergo no kids either.
Societal collapse.
Wayne| 11.23.11 @ 5:00PM
Actually these were the unhealthiest years of my life, and my 60s are the healthiest years. It depends on the individual. I only became healthy when I quit listening to doctors ;-)
Dave | 11.23.11 @ 10:02AM
Mr. Ferrera:
You sound like a well educated sort, but one who's spent a little too much time dabbling in *grammarian feldergarb. (*proper legal-speak.) As a lone citizen who's formal education came, mostly, from street level, it's my unlettered opinion that the Supreme Court may indeed toss out the mandate aspect of Obamacare, BUT leave behind much of the remaining 2,400 pages for the usable street urchins to deal with. In Justice Kagen, "*what we have here is a failure to recuse." (*with apologies to Strother Martin) Between Kagen, Ginsberg, and the remaining left leaning activists on that historic bench, the only vote that will ultimately count is the one from Anthony Kennedy. And like Bob Dylan's "Blowin' In The Wind", no one knows which way he'll blow.
Good luck to all of us.
DTOM| 11.23.11 @ 2:02PM
Dave,
Maybe you missed this:
"What makes this predicted legal result especially likely is that the Obamacare law overconfidently excluded a traditional severability clause, which provides that if any part of a law is found unconstitutional, the rest would remain intact."
So if the SCOTUS toss any part of it, the whole thing goes in the crapper. Fingers crossed over here...
George S| 11.23.11 @ 10:10AM
Circular logic. If Kennedy-Kassebaum prohibits insurers from non-renewals of policies after an illness, then the insurers must keep raising rates to cover the cost the legislation imposes. Also, that law itself is unconstitutional since it has nothing to do with Congress' Article I powers. In order for a reasonable alternative to ObamaCare to be available to the Court, Kennedy-Kassebaum would have to be repealed. That would not sit well with Justice Kennedy.
The other factor affecting cost is the government not fully reimbursing providers and delaying payments. So Congress can"fix" that problem by raising taxes or further cutting services -- leading right back to ObamaCare's provisions for an increased revenue stream by taxes instead of the mandate. This avenue would certainly not reduce costs or increase access. So what's left?
The only way for medical costs to be reduced is for government to step aside and let the free market do its thing. Unfortunately, that would result in insurers picking and choosing their customers and leaving a lot of out of pocket on the table. That would result in people not getting access should they take the gamble by not buying insurance when they're healthy; which will not sit well with Kennedy. That's how it will probably be ruled. The Constitution, unfortunately, will not have a say.
John Navratil| 11.23.11 @ 11:16AM
George S,
This is precisely why the insurance industry is regulated. "I will gladly pay you Tuesday for a hamburger today", but on Monday I go out of business.
Insurance may be priced at the market, but it does NOT work as a market. As a strategy to share risk, it makes sense to put people into the same risk pool BEFORE insurance is required, but it makes not sense to pull them out of the pool once risk becomes certainty. The insurance companies have gone around this one by scouring medical records and finding, as they did for my daughter, an undeclared chest cold at the age of three and declared the policy fraudulently obtained.
The solution is to insure the catastrophe and return to fee for service for everything else. That is, get as much insurance out of the process as the individual chooses.
Scott| 11.23.11 @ 1:41PM
Well said John. I don't understand people who are so obsessed with getting the gov't out of the HC sector so they can run back and play with the bueracracy known as 'big insurance'. To me they are equal evils to deal with.
Potemkin Life| 11.23.11 @ 2:06PM
John, I follow your thinking. But I'd like you and Scott to expand on it. Please do so.
Since we now have life, home, fire, tornado, apartment, auto, boat, motorcycle, travel, and health insurance.....(and several other dozen I have not named)
Is bicycle insurance soon upon us? Skateboard? (think the 19-27 year old still skating)
We males are surely scolded into, "Unless you have these things, you are not a good man caring for your family!" A la radio host Dave Ramsey.
Why do we have insurance at all? It is all rather dodgy. It's passing my woes and situation (my burdens) onto another.
Why not IT equipment insurance? After all, our homes now have easily $37,000 worth of tech devices, software, linkups.
I find the whole notion of insurance nauseating. And it is a complete misnomer. I think we've been duped long enough already over these past 4 decades of just purchasing more and more insurance.
For the purpose of this article and to stay on topic: I agree with those commenting here who find a government mandate (law with punishments for those who do now bow down and obey) to purchase anything -- abhorrent.
John Navratil| 11.23.11 @ 2:58PM
Potemkin Life,
If I could live my life without insurance I would. As you may have guessed I have lived without health insurance due to, what I call, shenanigans by my previous health insurance company.
I would buy "major medical" insurance with a $2K deductible, no "plan doctors", and a 20% co-pay from $2K to $10,000. As you can imagine, I never used it and I never filed any paperwork. About ten years ago, my company said that if paperwork wasn't filed within 30 days of seeing a doctor, it would not count toward a deductible. The first time I filed for an E.N.T. visit for my daughter was when I was cancelled for not having disclosed the ten-year past chest cold.
Insurance IS dodgy. It invites moral hazard on the part of both the insured and the insurance company. The less of it, the better. To compel its purchase is, as you say, abhorrent.
That said, while my children were small, I paid for $500,000 life insurance so that were I to die, my wife would still be able to care for the children without having to work or, at least not when she needed to care for the kids. Once they got older, that insurance was gone. I, once again, have health insurance, but it is a different (worse) beast. The policy I want doesn't exist.
Where people find me really "out there" is when I say that compulsory auto insurance is ridiculous. We buy insurance to protect our own estates, not someone else's. The notion that someone else getting mandatory state minimums of $25,000 is somehow going to protect me when he totals my new Acura is absurd and I buy uninsured/underinsured coverage for just that eventuality. I buy more auto insurance than the minimums to protect myself, not the person I might hit.
The mistake people make is in assuming that insurance is some sort of good. It is merely a part of estate management. The more the insurance industry can get you to buy, the more money they make.
My solution to health care is to continue MSA's - if that is what it takes to entice people to self-ensure - and to purchase "major medical" policies, only. There is simply no reason for routine health care to be anything but fee-for-service just as everything else is in our lives. Healthy-baby care, dental care, going to the doctor when you have a chest cold are all routine medical activities and should never be insured.
Potemkin Life| 11.24.11 @ 2:45AM
John, thanks for the candid remarks and a reply here. It would be good if most people would just be plain spoken honest about these things as you are in your remarks.
I got a real wake up call with my auto insurance company this past summer. They are a top rated company. Been around a long time, overall good customer reviews. But they didn't do a square deal with me this summer. And it really was a very small matter. The other motorist was making a deceitful claim. I got two policemen and a bystander, onlooker to agree with me. There was no damage to the other person's car. Certainly none on mine. I won't go into details, but the whole handling of this matter by my insurance company was completely unprofessional. I told them they were being scammed, but they did the payout (they only very reluctantly informed me that they paid).
There is too much dishonesty -- on both sides, as you point out. Too much room for dishonesty. And I am sure that internal insurance company rules push staff hard to deny, deny, deny and bury the customer in fine print when there are big payouts.
Insurance. Assurance. I just think it all falsehoods and misnomers.
It all seems just one more grand scheme to keep us on the never ending, ever rotating gerbil cage wheel. Work to make money to lose it in payments before you even have it in your hand.
John Navratil| 11.24.11 @ 11:42AM
Potemkin Life,
Now bring in the lawyers. Your insurance company settled for what it perceived to be small potatoes and avoided a potential "bad faith" claim. It really doesn't matter to them. As a regulated business, they spend their way to prosperity as they are guaranteed an overall rate of return.
I grew up a son of an insurance defense lawyer. One year it was "we are paying too many claims - litigate", the next it was "we're spending too much on lawyers - settle". It's a business. Which is why I say the less the better.
John Navratil| 11.23.11 @ 3:39PM
Scott,
At least I can choose (so far) to deal with an insurance company. It's bad enough when they are sitting between me and my doctor. The gov't will be just as bad except they can do things like de-list uses for drugs (Avastin ?!?) in order to rig the game in their favour. Deal me out!
Jack London| 11.23.11 @ 6:28PM
'Delisting' drugs that don't work rigs the game in our favor. You got that 180 degrees wrong.
John Navratil| 11.24.11 @ 11:38AM
Jack London,
It's a bureaucrat who delists, not a scientist. Not all drugs work the same way for all people. It's why we have doctors. The delisting is purely budgetary. It's so Medicare/Medicaid don't havc to buy it and it filters down to it not being covered by private health insurance. Call it rationing, if you will.
It is, indeed, you who have it backwards.
Jack London| 11.24.11 @ 11:44AM
No you're completely wrong - it's the science that didn't work out on this one. And out of 90 of so drugs that have gone through FDA accelerated approval this is the first one that's had an indication removed.
John Navratil| 11.24.11 @ 9:56PM
Jack London,
Science has not said good outcomes were not achieved. Bureaucrats said it was not economic.
Jack London| 11.25.11 @ 5:51AM
'Science has not said good outcomes were not achieved.'
Sorry but you are still wrong. I assume you don't know anything about this – I do as I work in the field.
John Navratil| 11.25.11 @ 10:34AM
Jack London,
Assume away! Your C.V. is of little relevance. The facts are being discussed, not who signs your paycheck. Working "in the field" can mean many things. Are you a med-mal attorney, a researcher for Merck, or an insurance clerk for Medicare? (It's a rhetorical question.) Your patronizing "sorry, you're still wrong" is hardly an argument.
Do you deny good outcomes for, for purposes of this discussion, Avastin? What do you say to John Lechleiter who argues that the FDA is stuck in the 50's when they argue that good outcomes must be obtained for all while the advances at the edges of the science, especially in cancer treatment, are dependant of the genetic makeup of the patient? How, specifically, could a gene therapy be broadly applicable? If you argue that the drug must be applicable for the class of patient for whom it is designed (what drug isn't), doesn't that beg the question that the FDA has ignored the class for whom Avastin has been claimed to be effective?
The FDA position has been reported in hyperbolic terms by both sides. The conclusion seems to have been that the anecdotal evidence is not persuasive and that the women - and their doctors - who report successes in treating late term breast cancer are simply wrong. Is that your position?
The problem here is that there is no book of wisdom. Just the check book. Avastin is still available "off label". The drug has not been removed from sale. The FDA seems to have simply said it's not worth the expense. As I said previously, this is bureaucracy, not medicine.
Jack London| 11.26.11 @ 12:03PM
Well there you go John - as you seem to admit, anecdotes are not science. And as you say, it's still available off-label. It's an experimental drug in metastatic breast cancer and will continue to be tested, and hopefully a biomarker may be found that gives us a small subset of patients who may possibly benefit. It has nowhere near an evidence threshold for a universal approved indication, although the European Medicines Agency does still OK Avastin with one particular chemotherapy drug for now - but the data does not show any overall survival.
John Navratil| 11.26.11 @ 12:34PM
Jack London,
I never suggested anecdotes are not science. They are not statistically significant due to small sample size, but the are scientific evidence. You might question whether the neutrino result at Cern is science if it has been observed only twice.
Several studies suggest that cancer progression is delayed, by Avastin, from one to five and one-half months. I'm not here to argue whether Avastin is cost-effective, or not. My original premise was that I may choose to contract with an insurance company who is bound by that contract. When I deal with the government it gets to change the rules. Avastin is the example. You argue that the government is here to help. You say "'Delisting' drugs that don't work rigs the game in our favor." I reject that argument as a black-and-white fallacy. It rejects any benefit, despite evidence to the contrary, which makes any cost-benefit ratio infinite. As I asked before, do you deny good outcomes for Avastin or is it just an expensive placebo with adverse side-effects? I support my argument that this is rationing by another name (not in and of itself a bad thing - all things are rationed by cost) by observing that the drug remain available "off label". I can think of no reason to do this other than for cost. Can you? If so, can you acknowledge that the government is able to change the rules in mid-game in ways that the private sector can not. Is that a good thing?
Jack London| 11.26.11 @ 6:07PM
John - Avastin is approved for other indications for which there is significant benefit, so this is nothing to do with cost. Avastin for metastatic breast cancer got only provisional approval based on a possibly significant surrogate for survival, but the subsequent data did not bear out a significant benefit. The FDA would not be fulfilling its mandate if it ignored the data. Despite what you believe, this is really about whether the drug works in this indication or not and as you probably know the initial accelerated approval was very controversial because oncologists are worried it may set a precedent for such surrogate methods rather than genuine demonstration of survival. Like many drugs, it remains available for trials and off-label use – it's critical that people are told the truth about treatments, and approving ineffective drugs can only give them false hope.
I think what you really want to do is eliminate agencies that are federally mandated to protect us. But I don't think zero oversight of cancer drugs - or any drug - is a good idea. Do you?
John Navratil| 11.26.11 @ 9:24PM
Jack London,
I cannot disagree with your last paragraph. In short, the answer is yes! I do not trust the government with my best interest in this, or many other endeavours.
There are many examples of private certifications ranging from Underwriter's Laboratories to medical schools, themselves. It is not the purview of Congress to mandate an agency to protect us from ourselves. If it weren't for Thalidomide, the FDA would never have developed its influence. That was serendipity. Now we have an agency which is, essentially, unaccountable with people like David Kessler seeking to regulate cigarettes as a nicotine delivery (medical) device.
Jack London| 11.27.11 @ 2:56PM
Thanks for a Sunday laugh John.
There's not a chance we'll want to disband the FDA in favor of self-regulation, especially given the hugely more complex drugs in the pipeline. The FDA is actually one of the most successful regulators we've ever seen globally - we need it more than ever.
Your extreme dogmatic faith in markets at all costs is a big reason why voters won't be voting for candidates such as Perry who can't even recall what he wants to abolish. Can you imagine how a lack of drug protection would play with the public?
John Navratil| 11.27.11 @ 4:42PM
Jack London,
I've had this same argument with Air Traffic Controllers. Safety cannot be outsourced, they harrumph. I ask how differently they would behave if say, Lockheed-Martin (wink), signed their checks. Of course, their professionalism would never be compromised, only the profit-motive would cause ATC operators to cut corners. (You know, like Boeing cuts corners because they love to be sued.)
I my faith in markets to properly allocate scarce resources is misplaced, then you may consider your faith in government equally so. There, wasn't that logical - Did So! Did Not!
You may safely claim the FDA has been the most successful regulator in history - as there is no control we will never know. The public has certainly placed an abiding faith in the government. I reminds me of the Jews being led from enslavement in Egypt. We will see how long this government is around to protect the slaves. Here is my prayer that your call for more of the same goes unanswered.
Jack Davis| 11.23.11 @ 10:13AM
Hope you're right, Mr. Ferrara. What follows is the story of how I got screwed by Obamacare and "If you like your current health plan, you'll be able to keep it."
Here is what Obama’s health-care reform law has done to me. Not FOR me; TO me.
BEFORE Obamacare, that is up until December 31, 2010, the family deductible for my company-paid medical coverage was $300…and it had been $300 for years.
AFTER Obamacare, that is on January 1, 2011, the family deductible for my company-paid medical coverage went up to $2,800. You can do the math. And because my company is self-insured, it was a take it or leave it situation.
Obama LIED when he said that if I liked the plan I currently had, I’d be able to keep it. He was WRONG. Instead, my company canceled the plan I liked and in its place substituted the aforementioned high-deductible plan.
Obama LIED when he said his plan would “bend the cost curve downward.” What he really meant was: “Bend over and face downward.”
Thanks, Obama!
rn| 11.23.11 @ 10:53AM
Mr Davis, thank you. For some reason, people here at American Spectator and everywhere else love to argue in the abstract. As if "abstracts" carry the day when it comes to yes/no, up/down decision making.
If American Spectator had a clue, they'd ask readers and commenters like you to send in their real-life health care plan woes in just these past 12 months -- with Obamacare looming on the horizon.
Sift the submissions through, tighten up the wording, compile, publish.
Real world, real facts human stories are what could and should carry the day. Otherwise, without how this has impacted family X living in Topeka, Toledo or Tacoma it is just a fancy academic argument.
Real math/real family budget situations CAN carry the day. This is what we need.
DTOM| 11.23.11 @ 11:52AM
rn;
I do not agree with you. That would be anecdotal evidence. Like every time a politician drags some befuddled, wronged citizen to a hearing and screams see what they have done to this poor schlub! "So you have to pass my "Save the poor schlub" Bill."
For every sane, reasonably angry Jack, they will drag out ten beset-upon, unmarried Shawannas with three little kids who have far worse problems. Sorry, they'll make out Jack as rich, privileged, mean ol' whitey and we know what their victims all look like.
Nope, we need industrywide cost numbers showing how EVERYBODY's paying more and getting less since ORomneyCare passed...
Besides, anecdotes are SUPPOSED to be funny, not evidentiary!
rn| 11.23.11 @ 1:34PM
DTOM, not completely disagreeing with you. However, you cite "industry wide...." Oh, the industry? Does the industry always tell you the truth? Detroit automakers sure don't. Big pharmaceutical companies? Ditto for health insurance companies.
Sure, it is weirder than weird that some health care INDUSTRY giants are on board with Obamacare, particularly health insurance companies, but this is the case. As are some physicians, nurses, and health care providers.
They are perfectly willing to lie and fabricate to get Washington, D.C. laws that benefit them (in the short run -- next 10 - 20 years)
No. I want real stories from middle class Americans who are busting their tails in a society that has decided (from Washington, D.C. to the statehouses) to war against them.
Not just 10 or 100 or 1,000. Right now there should be 985,000 American households that are red, white, and blue hardworking, resilient who've all been punched in the gut by Obamacare. 985,000 households where Mom and Dad can type up their situation and factually articulate how they've been shafted (with the documentation from their health insurance companies as exhibits A - N!). In all states and territories.
Those 985,000 households (Moms & Dads) are ready to tell their story -- right now.
Yes, the welfare queens are out there. But does anyone really feel sorry for a black, overweight, alcoholic high school drop out who screwed every rat that came her way?
DTOM| 11.23.11 @ 2:10PM
rn;
I just so detest the illogic that usually accompanies arguments whose only means of support is anecdotal evidence. To me that's always been a hallmark of legislation that cannot be supported with statistical data. In other words, if you cannot jigger the numbers to make or support your argument, uses anecdotal evidence. Therefore, your argument is pretty much insupportable.
BTW I HATE AARP for their unprincipled collusion in the OBamacare thing. I'll never join those bastards, ever.
For some of the other co-conspirators, I tend to rely on the Stockholm syndrome to rationalize their collusion, rightly or wrongly.
DTOM| 11.23.11 @ 11:43AM
Jack;
Obama is a salesman. You know when salesmen are lying. You know - when his lips are moving.
With apologies to salesmen everywhere, I mean EVERYWHERE. Really, I'm sorry, real, real sorry. But it is true. The Obama part - actually he ought to be apologizing to salesmen and liars everywhere. Yeah, that's the ticket!
Scott| 11.23.11 @ 1:43PM
Jack, I'd love to know how this had anything whatosever to do with Obamacare. My company did the same thing, but it happend about 4 years ago. Obamacare hasn't even gone into effect yet, other than some peripherial coverage issues for young adults.
Redstateboy| 11.23.11 @ 10:22AM
ever notice when a piece written here on TAS providing irrefutible logic and specifics... you'll never see a post from some Liber-ul?
Timothy L. Pennell| 11.23.11 @ 11:29AM
Wanna bet?
Hey Jack. Hey Clint. Ron Paul SUCKS! And he's a big QUEER!
Ready? 5, 4, 3, 2, 1....................
trd| 11.23.11 @ 11:46AM
Tim, why'd you have to do that. Why? (We all get the point.)
Please - - can we - maybe in the name of Thanksgiving weekend -- can we have just one American Spectator blog commentary section free of mindless back and forth?
Either stay on topic or don't post.
We're all SUPPOSED to be adults here. (take the immature bratty boy spats elsewhere)
Timothy L. Pennell| 11.23.11 @ 3:12PM
I'm assuming that: trd, is short for TURD.
But, you have a Great Thanksgiving, anyway.
DTOM| 11.23.11 @ 12:09PM
TLP,
Ohhh, man! Ya gotta fight that urge, ya gotta fight it.
DOH! I'm outta here,now.
Timothy L. Pennell| 11.23.11 @ 3:10PM
C'mon. It was a JOKE.
I'm still laughing.
HAPPY THANKSGIVING.
DTOM| 11.24.11 @ 11:24AM
I knew that.
HT!!
RCV| 11.25.11 @ 3:33PM
I already posted above.
MikeBee| 11.23.11 @ 10:36AM
The foundation of Obamacare and many other like laws is a farce: to provide health care for everyone, as there are those who don't have health care today. In the U.S. today, EVERYONE has access to health care, before any Obamacare legislation. I work in healthcare, as CFO and Controller of hospitals. Everyone who comes in the door of the hospital is required to be cared for in some manner. To give an example: one of the hospitals for which I worked as Controller in my past was a hospital which provided only one type of service--bariatric surgeries. Period. But, the hospital was located in a bad section of a city in Michigan. If someone came to the hospital with a knife wound, we were required, by Michigan law, to stabilize that individual, then, at our expense, to provide transportation of that person to the nearest big hospital which could properly care for him. This was required even if he did not have any medical coverage, including Medicaid or Medicare.
The crisis in health care is a crisis of PAYMENT. Who is going to pay for all these services provided? The state of California is heading for bankruptcy, partly because it passed laws saying that illegal aliens MUST be cared for in hospital emergency rooms, even though they can't pay for the service. California's budget is highly stressed by this law, with ever-increasing numbers of illegal aliens in their population.
Peter, I sincerely hope that your assessment is correct, and that Obamacare is struck down completely as unconstitutional. When it is, and the Socialist Dems start crying about health care access for the poor, our response simply should be, "There already is access to health care for everyone; in CA, even illegal aliens have access to health care. There is no crisis in this country for health care access."
Rod E.| 11.23.11 @ 11:48AM
You're right Mike, about everyone having access. In addition, I would make the point that insurance companies routinely cover pre-existing conditions for millions of people. All it takes to get coverage for a pre-existing condition is for the parent or spouse, or even the patient, to obtain a job with agroup health insurance benefit. If the healthy spouse is hired, the group insurance extends automatically to the sick spouse, assuming the coverage is selected, as it would be.
So, the pre-existing conditions issue is a canard. It's just not the problem it's made out to be. That means that it can be addressed with proper legislation. Simply put, establish a grace period where everyone, regardless of pre-existing conditions, can sign up for a private policy (and where each individual is part of an exceptionally large group of citizens) and, if done during the grace period, will never lose access to insurance as long as the premiums are paid.
People failing to sign up during the grace period specified in the law would then become subject to underwriting for pre-existing conditions and would either pay for a rider to cover any such conditions, or would have coverage excluded for those conditions. This risk would encourage most sane people to sign up during the grace period, and the problem would essentially be solved.
And, this is a free-market solution, guided by appropriate enabling legislation.
mulp| 11.23.11 @ 11:48PM
The free market solution was designed by the conservative Heritage Institute and implemented in law under Gov Romney who signed it into law.
Newt Gingrich endorsed it as the conservative solution.
Obama adopted the conservative plan for health care which conservatives determined required the mandate.
The simpler solution is one like they have in Canada, or Japan, or France, or Israel, or Germany - those nations cover everyone, the average lifespan in all those nations is longer than in the US, and they are so much more efficient they cost about 60% of what covering only 80-90% of the people in the US costs.
Conservatives keep looking for the free lunch, the one that solves the real problems but costs nothing.
money honey| 11.23.11 @ 10:53AM
The author seems very confident that Obamacare will crash and burn in SCOTUS. I don't think it will happen. Justice Kennedy wants to be invited to those cocktail parties in Georgetown.
trw| 11.23.11 @ 11:00AM
You don't need a health care plan (insurance) in America to access health care. All you need is a few hundred dollars in your wallet, a checkbook, a credit card.
Is there anyone over the age of 18 in America who does not have these things?
No. (And, yes, all our illegals have these things, too)
DTOM| 11.23.11 @ 12:11PM
You bettcha!
OWS, ACORN, LA RASA members don't. On purpose, their moms and dads do, though, in spades...
VonMisesJr| 11.23.11 @ 11:31AM
This is not simply about health care. If the Courts find that the government can force you to buy insurance or you get a fine; then the fine will "NECESSARILY SKYROCKET" in a few years. Otherwise the law is ineffectual and the socialist will fail at their overall objective that is CONTROL OF YOU ENTIRE LIFE.
It may start out at $2,500, but then it will be $5,000, then perhaps $10,000. Then if you still resist, they will garnish your wages, confiscate your property and put you in jail. They did not make this error by mistake. It is what Walter E. Williams calls "The Cigarette Nazis." First you can't smoke at your desk or at dinner table. Then outside the building or in the bar. Then Bloomberg's parks will be off limits, and soon you will not be able to smoke at home. But if they did this all at once, the frog would jump out of the boiling water, so they slowly turn up the heat.
And soon you will pay taxes for broccoli and spinach. Soda will cost more than French Burgundy. And you will do as you are told, comrade.
Rod E.| 11.23.11 @ 11:38AM
One problem with your analysis, Mr. Ferrara, is that while insurers can not drop persons if they become ill, they can begin to price them out of their policies.
If the group is too small, eventually the rising premiums drive out the healthy, resulting in even higher premiums, until the sick can no longer afford the policy.
However, there is a legislative fix, that being to legislatively define very large groups, much as federal employees are defined, for example. And it would be better, in the long run, to separate the groups by age class, so that young people would have more affordable policies. Then, once one has acquired insurance as a member of that very large group, they would retain it as long as they continued to pay the premium on the policy they've chosen. Furthermore, the legistation should state that all insurance companies doing business with a particular group (say all female Americans aged 19-25) must offer the same rate to anyone holding a policy, regardless whether it was that company's policy, or a policy with another company.
With this arrangement, people would acquire at least a high-deductible, major medical, policy at the earliest possible date so that they would remain insurable throughout their lifetime. The government role would be to help the destitute or unfortunate in maintaining their private policy, as you suggest. But we need the legislation that would establish the extremely large, age and sex divided, groups, and that would ensure portability from one insurance company to another.
vicky bennett | 11.23.11 @ 11:40AM
Without a doubt, the healthy will just wait till they are sick, then buy in, since none can be turned away. It looks to me like Pelosi, Reid, Obama , did not really think this through. They were in such a big hurry to shove it down our throats, they forgot to study the outcome.. Poor governing.
obadiah| 11.23.11 @ 11:52AM
ho ho ho. what decides this case, like many others, are the political commitments of the judges and their willingness to turn the system into chaos by throwing out the new regs and failing to resurrect the old.
Marc| 11.23.11 @ 12:06PM
Judge Silberman is generally a top notch jurist and it's confusing why he issued such a poorly reasoned opinion. If it's true that he is generally "far-sighted" as this piece suggests, is it possible this opinion is also far-sighted? Judge Silberman relies on the ridiculous, unconstitutional precedent of Wickard v Filburn which is a monstrosity along the likes of Roe and Dred Scott. Judge Silberman has just handed the Court a golden opportunity to overturn not only ObamaCare but also Wickard, which would begin the restoration of economic liberty. Wouldn't we all love to read a majority opinion issued by Justice Clarence Thomas overturning ObamaCare and Wickard? Of course, the Court is not the true final arbiter of our Constitution. We are. But the thought of a Thomas opinion makes me giggle with anticipation.
DTOM| 11.23.11 @ 12:12PM
Wow! Nice silver lining
we hope.
Mimi| 11.23.11 @ 12:23PM
Peter so glad to hear your take...Thanks !
Mine is....the time has come... like we fear for the unborn who are at the MERCY of the Liberal -Left...We now fear with trepidation....for any human being over 70 years of age! They will be at risk of being unprotected by this Country as are the very young. Will there be a DATE as January 23rd when all good citizens attend rallies in Washington D.C.? God HELP US! We MUST all Pray!!!
Think of your LIBERTY....Will you see poverished young adults in PRISON, unable to pay fines...All just to SERVE Obama and his historic legislation.
Your sons and daughters.....this is the GREAT QUESTION of our time ...Do We give to government the ability to choose for us....LIFE & DEATH matters ???????
Peter must be right, or ELSE, the terrible consequences end the America we KNOW!!
RichTex| 11.23.11 @ 1:09PM
If the mandate is held to be constitutional, just think of all the other things which could be required of the American people. If Congress can require people to buy insurance, it can require people to buy any other item. Maybe, it could require everyone to buy one of Obama’s books. Remember how well that worked out with the “Thoughts of Chairman Mao” in the People’s Republic of China. We can, of course, preserve a woman’s right to choose (and even extend that right to men!) by allowing everyone to choose for himself which of Obama’s books to buy.
Then, since requiring people to engage in an activity is “interstate commerce”, even if the alternative is not to engage in that activity at all, Congress can require everyone to gather together in a specific location, and bring their Obama book with them to waive in praise and solidarity with The One.
Crawler| 11.23.11 @ 1:15PM
I wholeheartedly agree with Mr. Ferrara's opinion that regardless how the Supreme Court rules, it will be a political disaster for Obama. I also believe the high court will rule this forced nonsense on the American people for what it is: unconstitutional.
If the Supreme Court upholds Obamacare, angry voters will go to the voting booths in droves to express their disgust and distaste of one of the absolute worst presidents in American history.
And when the dust settles on the night of November 6th, 2012, the Democrats will be out of the political loops and circles for many, many years to come. ..
T. Jefferson| 11.23.11 @ 1:21PM
I think the political consequences of the Court upholding the law will go well beyond the Presidential election. If the Supremes hold that the right to regulate interstate commerce means that Congress can force citizens to spend money on particular goods and services, the 27 states that have sued are almost certain to pass resolutions calling for an Article 5 convention to put this clause back in its box.
Scott| 11.23.11 @ 1:47PM
Facts
1) The US is the only developed economy in the world that doesn't have some form of universal HC system run by the gov't in some form.
2) The US spends more per capita by far than every other country
3) The health outcomes of US citizens is no better, or in fact many cases worse, than many other countries.
I'm not pretending to know the answer, but what I do know is what we have right now is an abject failure of a HC financing system.
Jack London| 11.23.11 @ 2:55PM
The answer is a universal public insurance system. That's easy. Medicare is already a great model. Given the huge amounts of overhead and overtreatment we pay now, funding single payer will be easy too. Not only that we'd unlock enormous productivity and social mobility from a nation with secure primary and secondary healthcare. The far right here just want to destroy our potential.
Wayne| 11.23.11 @ 5:03PM
And when that universal system tells doctors to not help you, what do you plan to do, die for the sake of society?
Jack London| 11.23.11 @ 6:24PM
In most of the other countries with universal health systems people live longer than we do. That's partly to do with much better primary care.
John Navratil| 11.25.11 @ 12:47PM
Jack London,
Statistical legerdemain! Life expectancy varies for a number of reasons, health-care being but one. We have a higher murder rate than some countries, but if you survive your youth you are likely to live longer thereafter. Our infant mortality rate is higher because we count all births, not just those which survive 24 hours.
A better comparison is the compare survival rates post-diagnosis. The U.S. excels.
John Navratil| 11.25.11 @ 12:47PM
Jack London,
Statistical legerdemain! Life expectancy varies for a number of reasons, health-care being but one. We have a higher murder rate than some countries, but if you survive your youth you are likely to live longer thereafter. Our infant mortality rate is higher because we count all births, not just those which survive 24 hours.
A better comparison is the compare survival rates post-diagnosis. The U.S. excels.
Vic| 11.26.11 @ 1:20AM
Most other countries are ruled by dictators. Perhaps we should pine for this as well?
Scott| 11.23.11 @ 1:51PM
The idea of the mandate has already being determined not to matter. If the SCOTUS determines that the mandate is unconstitutional, the gov't can simply change the wording and structure of the system.
Rather than a mandate and a "fine". There will be a refundable tax credit by the amount of the fine....much like getting a child tax credit, or a mortgage deduction.
The economic incentive is exactly the same...whether you call it a "fine" or call it "tax credit"....your net tax bill is unchanged. And the constiutionality question gets thrown out of the discussion.
Wayne| 11.23.11 @ 5:05PM
Not without bringing the law back before the House where it would get defeated.
bill carson| 11.23.11 @ 2:19PM
I have zero interest in the Supreme Court. There is no way anyone knows how they will rule because they destroyed the Constitution long ago. They simply do not read the Constitution the way normal people do. The liberals, especially, decide what final result they want and they backfill their decisions with all the garbage needed to justify their personal preference.
Bob White | 11.23.11 @ 2:57PM
Sad to say, this is true. The best result of the Obamacare case is for the court to strike at the heart of Wickard v Filburn, the third worst SC decision ever (behind Dred Scott and Roe v Wade).
Bob White | 11.23.11 @ 2:55PM
I look forward to any article by Peter Ferrara, and this one is among the best.
Tom | 11.23.11 @ 3:37PM
What everyone fails to see is this: Ruling that congress now has the power to force you to buy something simply because "IT MAY IMPACT INTERSTATE COMMERCE" in the future, means that congress will from here on out control all aspects of interstate commerce.
The result is that supreme court rulings can now be tossed with simple legislation. Example: Roe v Wade. It affects interstate commerce, so congress could pass simple legislation making it illegal. The argument against is that personal freedom and privacy trump controlling commerce.
Oops! personal freedom and privacy didn't trump health care insurance decisions.
Pandora's box will then be open. All future supreme court rulings will affect interstate commerce. All future supreme court rulings will be subject to simple legislation given the make up of the current legislature and executive.
The supreme court will have rendered itself obsolete.
Wayne| 11.23.11 @ 5:01PM
We already have a monopoly in medicine. Unless I see the Supreme Court ruling the FDA unconstitutional, I don't buy into the idea they care about the constitution.
howard lohmuller| 11.23.11 @ 5:03PM
A non lawyer as I am is is likely to think that our society is against forcing folks to obey non-existent laws. American law requires intent to break existing law as proof of guilt. Refusal to buy health insurance shows no intent to violate existing law or non-existing law. It is not even a matter that needs to be decided by the courts, much less the Supreme Court. A comparable idea would be "No taxation without representation." This is a political argument not a legal matter.
Therefore, the Supreme Court will probably rule that the individual mandate is unconstitutional. Because the Court has been tethered to contract law, it will rule the entire act unconstitutional because it lacks a severalty clause. And finally, public opinion favors striking the law and miraculously, by 5-4, the law will be stricken.
Wayne| 11.23.11 @ 5:07PM
One could also say that not registering for the draft does not show intent either, but it still gets prosecuted.
John Navratil| 11.23.11 @ 6:19PM
Wayne,
It's been prosecuted, I believe, 25 times. I was surprised recently to find that registration was still a requirement. The prosecutions were against those who made a big deal of not registering. They stopped when it appeared to have a chilling effect on registration. Now it is handled by requiring draft registration before student loans are processed.
John Navratil| 11.23.11 @ 5:32PM
howard lohmuller,
I'm not a lawyer, either, but it appears that mens rea is going by the wayside. Read this from the Wall Street Journal. There is much more if you look.
http://online.wsj.com/article/.....01654.html
howard lohmuller| 11.25.11 @ 12:10PM
John Navratil- I read the article and wasn't aware that the Feds had so many laws, (I would call them decrees), that did not require mens rea to prosecute them. It still seems logical that such laws (decrees) should not have standing in state or federal courts but they apparently do. Another sign of Government growing too large.
Chris Pedersen| 11.23.11 @ 7:10PM
Thank God for Statesman like you! As well as others who have lead the Charge. The U.S. Supreme Court should take this opportunity to overrule the "Wheat Case" altogether. I also stand with Marl Levin 100%. I Love reading all of the "Friend Of The Court" Briefs filed on OUR Side Of The Law, because Obama's side is full of Donkey Squeeze in the Marxist Mental[ity]. In the long run I JUST SIMPLY WILL NOT COMPLY.
The [I]ternal [R]acketeering [S]ervice Of The United States Of La Cosa Nostra America can go Pound Glass up their A$$, & OBAMAS' TOO using the "Green" but empty Champagne bottles left behind following OUR VICTORY!
RJ| 11.23.11 @ 10:20PM
Peter,
God bless you for your efforts to preserve the Constitution and freedom in America. I take comfort in your essay and hope that you are proven correct.
Endowed by My Creator| 11.24.11 @ 12:11AM
I have no faith whatsoever that SCOTUS will overturn. The McCain-Feingold abomination was as blatantly unconstitutional, and passed the Supreme's muster without a whimper. Additionally, did anyone else not notice that Mr. Ferrarra's solution regarding the "uninsurable" eventually getting coverage "guaranteed" when they are too sick to be otherwise insurable is the EXACT SAME THING as what he describes as a fatal flaw of Obamacare?
POST American| 11.24.11 @ 3:26AM
-------------------BOTTOM LINE-----------------------
ANY President, ANY public figure dealing
with the issue of 'health' ought to begin by
taking up the crusade against stealth tainting,
contamination and GMO 'modification'
of the food supply generally.
Desperately needed is some definitive
capital criminalization of ANY diddling
with food, water, air or meds in the name
of 'social engineering' ---much less 'profits'
at the expense of public safety.
The MOST extreme cases, such as the
broad daylight Monsanto GMO scandal,
or the sinister injection mongering of
the foundations, ---really demand life sentences
--and beyond.
Oldefarte| 11.24.11 @ 1:18PM
Peter's typically brilliant editorial again reinforces my opinion that, whether or not the SCOTUS rules this WELFARECARE unconstitional, the one/only solution is for the American taxpayer-voters to correct the mistake of VOTING '''''STUPIDLY'''''' that they made upon 11/4/08 and to elect a capitalistic American Republican as their next POTUS [ and also a likewise congress] on 11/4/12. To reemphasize my well worn-out phrase, IT'S THE DEMOCRATS, STUPIDS!!!!!!!!!!!!!!
Naturalborn Texicanette| 11.24.11 @ 10:38PM
I pray with every fiber of my being that Mr.Ferrara is RIGHT ON TARGET with his prediction!!!
This monstrosity can not be allowed to stand!
D Roamer | 11.25.11 @ 12:23AM
If our court feels they have to rule on what's good for me and not for what the constitution says; where can the government order me to buy anything? For my safety they can forbid me, that may be OK, but to order me into buying some protection insurance scheme is unbelievable.
Awaiting a 5-4 decision, is scary in my view in that 4 cannot see this obvious departure from King George III's dictates that we have to buy their tea.
Off topic a tad; health insurance could be vastly improved by "tort reform". We all know about the MD's covering themselves for some mistake they may make in their practice,which can be thousands of dollars, some will not practice anymore, the insurance rate is so prohibitive , one cannot pass it on to their patients. Tort reform as we know of it, if the plaintiff losses, than they pay the costs of the court. But, lawyers dominate our government and many see this as a huge barrier to thousands, millions in a chance to snow the jury. It's gotta stop. Texas Governor Rick Perry has passed it! so it can be done.
Buck Ofama| 11.25.11 @ 3:50AM
Even if they don't strike down this g0ddamned travesty- which the leathered cvnt said had to be passed "before we can find out what's in it"- I refuse to pay the c0cksucking gubmint for it. I don't give a flying fvck. I will sell all, buy gold, weld a safe into a van and live on the road. FVCK OVOMIT and FVCK THE GUBMINT.
FVCK 'EM ALL... with a big rubber dick... and break it off.
Elgordo| 11.25.11 @ 11:04AM
The vote may be 5 to 3 to repeal Obamacare.
If it becomes obvious that Justice Kennedy has decided Obamacare is unconstitutional and is going be the 5th vote to repeal it, then Justice Kagan may do the correct thing and recuse herself so that she won't appear to be a hypocrite in the history books.
DaveS| 11.26.11 @ 8:52AM
My sentiment, exactly. But don't be surprised if it is even more lop-sided. The Commerce clause is slam-dunk and Kagan MUST recuse herself. It could be 9-0 or 8-0 on the mandate aspect.
What arrests me is that Kagan could refuse to recuse - then what? There's no enforcement of that choice.
Oldefarte| 11.26.11 @ 1:24PM
That is exactly WHY she was selected/nominated for the SCOTUS, so please don't hold your breath on her recusing herself!!!!!!!!
Gary B| 11.25.11 @ 2:37PM
Mr. Ferrara called Judge Laurence Silberman’s decision to uphold the Obamacare mandate an “illogical blunder” made by a judge who is normally brave and far-sighted. Knowing the research support judges have at their command and the huge consequences of this particular issue, I doubt the judge blundered. I choose to believe he considered the issue and quite deliberately decided in favor of the mandate.
Let’s be frank about this. We are in an epic battle for the future of America. There is enormous pressure on everyone involved. The forces for tyranny are so close to total victory they can taste it. Rather than predict how any particular judge or justice will decide this issue based on his or her past work, we should acknowledge that a justice is predictable until the day he or she is not. We have no idea who will get on their ideological high horse, let their ego run wild and attempt to change America.
We do know the Supreme Court has issued unconstitutional decisions in the past and are likely to do so again. Some of these decisions are blatant enough to make a sixth grader angry. So, while I hope Mr. Ferrara is correct, the odds are the court will issue a partial decision, as is their habit. This will leave America twisting in the wind and vulnerable to all manner of pre-election propaganda from the Democrats.
Rather than settling issues, the court appears to prefer to remain as blameless as possible. With that in mind, I’m wonder if this was their motivation for allowing an unprecedented 5-1/2 hours of argument. The individual mandate is clearly unconstitutional. We all know it. Will they be fishing for justification to support it in the arguments presented to the court? We will soon know.
In place of bravery and far-sightedness, I expect the usual cowardice.
Timely Renewed | 11.25.11 @ 3:45PM
Well, I hope Mr. Ferrara is right and that Justice Kennedy will wake up on the right side of his bed the morning of the decision and not the left side as he is too often wont to do. But even in that happy (but in my opinion unlikely) event, we will still be left with most of the New Deal Supreme Court jurisprudence intact which has allowed federal power to expand far beyond its original constitutional limits.
The only sure cure for not only Obamacare but every other federal overreach of the last 70 years is to amend the Constitution to restore those original limits on federal power. Of course this will not happen as long as Congress retains an effective monopoly on initiating constitutional amendments. Therefore, we must amend Article V to eliminate the current cumbersome and unnecessary requirement that the states act through a convention to initiate amendment proposals, and instead empower the states to directly amend the Constitution. Then grassroots constitutionalists can restore the original constitutional limits on the federal government and end not only Obamacare but every other such current and future federal power grab. See http://www.timelyrenewed.com
Timely Renewed | 11.25.11 @ 3:45PM
Well, I hope Mr. Ferrara is right and that Justice Kennedy will wake up on the right side of his bed the morning of the decision and not the left side as he is too often wont to do. But even in that happy (but in my opinion unlikely) event, we will still be left with most of the New Deal Supreme Court jurisprudence intact which has allowed federal power to expand far beyond its original constitutional limits.
The only sure cure for not only Obamacare but every other federal overreach of the last 70 years is to amend the Constitution to restore those original limits on federal power. Of course this will not happen as long as Congress retains an effective monopoly on initiating constitutional amendments. Therefore, we must amend Article V to eliminate the current cumbersome and unnecessary requirement that the states act through a convention to initiate amendment proposals, and instead empower the states to directly amend the Constitution. Then grassroots constitutionalists can restore the original constitutional limits on the federal government and end not only Obamacare but every other such current and future federal power grab. See http://www.timelyrenewed.com
Vic| 11.26.11 @ 1:45AM
Don't count on the courts to save us from the monster our federal government has become (with their help). The constitution is dead. I don't know why we still pretend it means anything anymore. The very idea that power hungry lawyers will vote to limit their own power is an exercise in futility. Federal laws determining what you can eat and how often you must exercise are on the horizon. Welcome to the USSA comrades.
Julia Gwin | 11.26.11 @ 9:53AM
The key to winning Kennedy is an admitted argument to extra-constitutional social engineering by the Fed. Notice the argument to Kennedy is not one of whether government-provided care is a "right," but whether the government can force taxpayers to subsidize the health care of others without this particular mandate. The question is still HOW to accomplish universal health care - not whether health care is a constitutionally protected right. The unquestioned assumption being that government must PROVIDE healthcare to all. If we do not understand this, there is no hope, and we consign ourselves and our posterity to slavery.
Although I find Ferrara's plan more palatable in its operation than Obamacare, I still object to it on grounds that the government has no authority to engage in providing health care to anyone.
Americans are the most generous people on the planet. Charity should remain charity. Each should reach into his own pocket to give as he is moved. Anything else is morally reprehensible theft and removes the recipient of charity from the natural object of his gratitude, thus enforcing a deadly sense of entitlement.
The only government involvement in health care that might be constitutional is the recognition of tax exempt private health savings accounts. These could also be set up by charities and individuals to provide relief to the unfortunate who are without family to help, with the determination of eligibility left to the provider of the relief, and not to the government. If government would exit the health care business in its entirety, the free market would control costs and quality and the doctor / patient relationship would strengthen.
Julia Gwin
Oldefarte| 11.26.11 @ 1:29PM
Government should not be involved in any way, shape or form in providing healthcare [or in many other things that they are involved with also] and that is WHY I REFERRED TO IT ABOVE AS ''''''WELFARECARE''''''!!!!!!
Speedypete| 11.26.11 @ 11:53PM
Does the U.S. Supreme Court, less one that should recuse, really read this? You have section upon section of federal agencies, 157 I think, that greatly increase the cost of health care instead of reducing or controlling costs. You have Section 6402 (f)(2) that is an anti-kickback law between anyone in the medical industry that provides a referral for some renumeration, even lunch. According to the section the medical professional is guilty until they prove their innocence. Read it, a Solicitor General may have added this little bit of Gestapo legislation. And will the U.S. Supreme Court, less one, address the lack of a severability section? The entire legislation needs to be found unconstitutional and start with just 300 pages, as Newt put it, to insure the uninsured and preexisting conditions nationwide. Then allow competition among insurers nationwide and drug competition worldwide. Watch what happens when your premiums fall and continue to fall yearly.
Tenn Slim| 11.28.11 @ 8:04AM
The Predicted 5-4 vote at the Supreme C... may well occur. THEN WHAT. You can bet your bottom Eural that the Leftist Obama Admin will not go quietly into the night on their signature legislation.
We are facing, in 2012, a POSSIBLE election, severe predicited weather, a Supreme Court decision predicted to toss Obamacare out, a OWS Van Jones directed, Soros funded anarchists in the streets, a continuing fiscal crisis, aided and abetted by Soros, Europe and China. For goodness sakes folks, time to stock up, listen up and review the old Dot Connections Glenn Beck DVRs.
Semper Fi