Saturday, March 27, 2010

Anti-Federalism 2010

Wow, not since the 1780’s when Patrick Henry was running around doubting the sincerity of this nation’s constitution has there been such a rapid resurgence of anti-federalism. With the recent passage of the so called “Healthcare Bill” into law, the public at large seems to be once again, questioning the over-reach of our Federal government.

Far beyond the specifics of the now healthcare law, a considerable majority of the public have found the legislation too cumbersome and the legislative process too rife with rampant deal-making. I believe most Americans accepted the fact that some effective changes could better serve the health care industry and public at large. However those changes should be COST based rather than access based. Tort reform alone could relieve medical professionals of huge cost burdens now and result in lower insurance premiums, and increased access down the road. The funny thing about Americans is, if you provide them with good value you won’t need to make special giveaways to entice them to participate.

As for the Attorney General’s of nearly a third of the union’s states, they have already filed suit in court to block the healthcare legislation from burdening their respective state’s rights as well as constitutionality of the law to their individual citizenry. No less than two dozen additional states have immediately offered up State resolutions or bills to limit the over-reaching scope of the healthcare law. They argue appropriately, that it is unpalatable with the Constitution that individuals are now forced to engage in REGULATED commerce (buying health insurance). By definition NOT buying insurance is NOT commerce therefore unconstitutional to regulate or effectively TAX citizens who make that choice.

States are starting to feel like they are being burdened disproportionately as Congress seems more interested in symbology rather than substance in its legislation. Our nation’s lawmakers misguided desire to ‘save face’ for the President by shoehorning in ANY WIN at ANY COST is unprecedented and a slap in the face of all fair-minded Americans. Indeed Patrick Henry would be reinvigorated, nay terrified to watch the path his country has stumbled upon. Where are the true anti-Federalist patriots like Samuel Adams, to wake us up this generation of Americans and set them straight again? Oh, that’s right I forgot … they drank a six-pack of HIM and are sleeping it off in the Congressional chambers.


  1. I'd be curious to read what your sources are about tort reform capping (I presume) non-economic damages would cause insurance premiums to decline. I believe when Florida did just this, insurance premiums for malpractice did not decrease. Though it hard to say whether Florida is representative of the entire industry, it does suggest malpractice insurance rates could be a result of poor financial investments (the medical insurance companies were heavy investors in dot-coms) and monopolistic competition.

    As for the whether "NOT buying insurance is NOT commerce" consider Jack Balkin's response to this argument:

    "Critics charge that . . . people [who do not buy insurance] are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation — in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective."

    I'd be curious to see your response to these two points.

  2. Professor Balkin is a highly respected constitutional scholar. His contention is reasonable if indeed one accepts the premise that a person ENGAGES in commerce, simply by existing. In fact, I disagree that I, indirectly or otherwise, utilize the current healthcare system (and thereby incur benefit or taxable commerce) if I catch a cold and take no unusual actions to counteract my misfortune. I am not joking, COLDS are viruses after all so what CAN I DO? Most of the time, I simply go about my business and ignore it. I don’t take or buy drugs. I don’t seek help from my neighbors or ‘borrow’ medications from their medicine cabinets. I don’t seek face-time with a doctor. What economic activity have I SPECIFICALLY engaged in regarding healthcare, to ‘constitutionally’ serve as a taxable act? Other than I physically exist and obviously use OTHER taxed resources while living, it is highly debatable that the powers of the Federal government to regulate could or SHOULD extend to people 'NOT' engaging in commerce.
    As I understand it, the current healthcare legislation DOES specify a PUNITIVE cost on persons NOT engaging in commerce (refusing to buy-in to a health insurance plan). Though Balkin discounts the precedent in Bailey V. Drexel Furniture, in favor of more recent Supreme Court decisions clarifying Congress’s Article 1 powers. I feel his argument fails to acknowledge the court’s objection to the punitive nature of THAT case or the reality of this current law as written. Is it REALLY within Congress’s purvey to effectively charge an EXCISE tax on a person who did not make, buy, or use a good or service? I honestly don’t think that is a defensible argument before the High Court or at least I personally hope not, for the sake of our individual rights as Americans.
    I responded to the more ‘readily digestible’ part of your question as a main blog post (, since tort reform is an understandable general topic that interests all, as opposed to the complex details expressed here. Thanks for your comments (WHEW!) and drop by anytime. W.C.C.

  3. You are being a bit disingenuous to Balkin's argument. Clearly a cold is one of the medical diseases that one can (but not everyone does) go without treatment for. There are a host of other illnesses which which require doctor's visits such as immunization, STIs, broken bones, cancer, and even pain medication for the occasional headache are all illnesses where if one attempts to treat, they will in all certainty engage in or affect interstate commerce. To emphasize Balkin's he's not disagreeing with the notion that "not buying health insurance is not commerce." Rather, he's pointing out that people who don't buy health insurance SUBSTITUTE their health insurance through other means and that Congress, through the legislation, has the right to regulate that substitution.

    Of course, this relies upon a rather expansive definition of the commerce clause (one that has been currently adopted by the Supreme Court). As you say, under the current interpretation of the commerce clause, almost anything qualifies as interstate commerce. The problem, as I pointed out in my debate over at Fight the Hypo, with contracting the reach of the commerce clause is that it weakens all form of private anti-discrimination legislation (such as requiring an employer not to reject you based on race). Contracting the commerce clause would also affect conservative issues as well as almost all stem-cell research and anti-abortion bills would also be unconstitutional. Would it make sense to not have our civil rights linked to the commerce clause? Absolutely, but that's not how our jurisprudence has developed.

    The best way to limit the federal government's power is to get Congressmen who value federalism. As I pointed out in my post, there is little incentive for any member of the federal government to respect federalism.

    To be clear, I'm not arguing the health mandate is a good thing. Truthfully I dont' know. But it does seem to be a stretch to say it's unconstitutional or should be unconstitutional given the reality of the expansiveness of the commerce clause and the dramatic negative effects it would have on how we live our lives

  4. It sounds like legallyquestionablecontent is extending the Supreme Court decision whereby a farmer that chose to grow more wheat than the Gov said he could for the ostensible intent of personal use for feeding himself and his livestock (Wickard vs. Filburn) was found to be regulatable by the Feds, even though the wheat he was growing was not going to be used in Interstate Commerce - simply because it affected the amount of wheat he might otherwise buy THROUGH Interstate Commerce.

    The problem I continue to have with this argument is that until that wheat crosses state lines, it is truly not a Federal matter. The same goes for the person with a broken arm that chooses to barter with a local Nurse or Doctor, or pay cash, rather than have Health Insurance.

    At some point we decided that we would mandate that someone enter into a business contract with a class of companies, such as Health or Auto Insurance. But what does this really do? Health Insurance as it was up until the recent Obamacare passage was already creating a situation in which users did not care how much the services they received cost on the whole. Hell, I don't have to pay it - I just slap down this here card, pay a copay, and I get whatever I want.

    Further abstracting this idea at the point of a gun isn't going to make things better. In fact, since healthcare is now "free" to the masses of people that don't pay taxes anyways, we're effectively giving everyone carte blanche to run up even more costs in services they may not need, as well as allowing Hospitals/Doctors to charge whatever they think they can get for services.

    If we were to take HMO-like service out of the equation entirely, or otherwise force users to effectively have to price shop, you'd see an immediate reduction in the overall cost of medicine. Doctors would engage in competitive pricing, as would Pharma, in order to attract customers in a free market situation. Having tax deductible health savings accounts where people could sock away money for bigger claims would go a long ways towards ensuring that when you were sick, you went to the person that would give you the best service for the amount you wish to pay.

    Ultimately, what this Bill does, is say:
    "Buy a health insurance plan that we, the corrupt Government, have been bribed to approve, whether or not it suits your needs, or we'll fine you. If you don't pay the fine, we'll arrest you. Resist that arrest, and we'll shoot you." Effectively, buy health insurance for the greater good or we'll kill you. And all of that corruption, scandal, lobbying, and bribing that go on every day in Washington, along with bureaucrats that could care less about you and have no personal stake in ensuring you get good service and treatment (after all, what are you going to do - go to another country?!? ha!), will now be in charge of which services you're allowed, how much you're allowed, and how long you have to wait to get them. Their cronies and friends will be seen immediately and get the best and finest in care, while the plebes will be left waiting in line in the cold for basic services.

    I don't know about you, but that scares the hell out of me.

  5. Nice article. very interesting, thanks for sharing.