On States Suing over a National Healthcare Plan

I had a guest here this weekend who told me of one theory of why states might sue the federal government over portions of the Obama Healthcare Plan that requires individuals to buy insurance. The theory goes that the federal government is not authorized by any clause in the Constitution to force individuals to pay for healthcare. A plain and superficial reading of the Constitution would seem to support that. This leads to three questions:

Is ObamaCare constitutional?
If not, can it be made constitutional?
Who is doing the suing and why?

First, a caveat: I am not a lawyer. All lawyers: please chime in.

Is ObamaCare Constitutional?

Next, some Constitutional basics. The way our form of government works, each and every law that Congress passes must find some authorizing basis from within the Constitution, because the 10th Amendment of the Constitution clearly states:

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

In other words, Congress has to find a basis for the law from within the Constitution. For the better part of three centuries, however, Congress has largely been able to get around this restriction through what has become known as the Interstate Commerce Clause (Article I, §8 Cl. 3):

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

“Commerce among the several states” has been interpreted to mean, for instance, the ability of someone in New York to charge for access to its waterways. That was what Gibbons v. Ogden (22 US 1) in 1824. It’s largely the basis of how drug laws are authorized today by the federal government. Some people might say that this is a stretch of the clause, and that in fact requiring expenditures from individuals on health insurance would be even more of a stretch.

So what’s the logic in favor of the law? That has its basis in the theory of insurance. Here I will say that I am not an insurance expert, by the way. This much I know: a risk pool requires that everyone not make a claim at the same time, and the lower the likely percentage of claims over some period of time, the need for less money by the insurance companies to satisfy claims.

In the context of health care, if only old and sick people buy insurance, because they make up for the bulk of claims, the money required to pay out claims would require very high premiums, thus reducing any benefit to having insurance. On the other hand, if only healthy people bought into the system, since there would be very few claims, there would be no need for high premiums. Indeed, healthy people might not buy insurance at all, or very limited policies. In short, insurers can only sell health insurance to sick and old people if they have a group of otherwise healthy and young to reduce costs.

Does the decision of someone to not buy insurance in one state impact consumers in and companies in other states? If there exist risk pools that cross state boundaries, then the answer would appear to be yes. Otherwise it would seem the answer is no.

If ObamaCare is not constitutional, can it be made so?

Supposing the Supreme Court found mandatory premiums unconstitutional, what could the Congress and administration do to get around it? The tax system offers us one possibility. The 16th Amendment authorized Congress to tax us:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

One way the Congress could get around this would be to impose a tax that is the amount of a minimum premium, and then allow for a credit based on the costs expended on that premium. Loophole? Perhaps. But not the first.

Coming back to the Commerce Clause, the Congress probably could not have imposed a national speed limit without relying on highway funding. They probably could not themselves have prosecuted individuals for traveling over 55 or 65 mph. Instead they required the states to pass laws or face losing highway funding.

Who is doing the suing and why?

Ultimately if we look at the states that have filed suit, I’m sure we’ll see a distinctly Republican red tinge to them. For one thing, the strategy of Republicans has been to obstruct any Democrat initiative, no matter the harm that obstruction causes to individuals. Here, what possible benefit could individuals who are uninsured gain from not having health insurance? Today 45 million Americans don’t have a choice because they cannot take part in a well balanced risk pool, and hence cannot afford any coverage. Tomorrow even if they don’t have a choice on insurance, at least they’ll have some coverage.

Summary

In short, while considering the constitutional elements is interesting at an academic level, the officials doing the suing are harming the very people they are supposed to be serving. Perhaps voters should remember that.

FBI spots potential danger to a school – on Facebook

As opposed to my previous post, BBC reports an instance where the FBI has made use of public information to predict a possible threat to St Aelred’s Catholic Technology College in England. The information was on Facebook, and was available probably because the defendant hadn’t protected his postings, perhaps due to FB’s confusing approach to privacy. Imagine, however, that FB didn’t confuse anyone, and this information were protected. Would the FBI have been prevented from warning St. Aelreds? If if they couldn’t, would Facebook? And if Facebook didn’t would the FBI insist on new powers? Watch this space.

American in exile with no due process

Imagine taking a vacation to some exotic place, perhaps even going to school abroad for a few months, and then being told that you can’t go home. The New York Times reports that such is the tragic situation of Yahya Wehelie, a young American who went to Yemen to study, at the insistence of his parents. He found himself on the No Fly List, for reasons we don’t know, and given no reasonable way to get home to Virginia.

Here we see the juxtaposition of many principles:

The government responsibility to protect Americans on the ground and in the air from terrorism;
The individual’s freedom to travel;
Government responsibility to enforce trade other policies, such as that of importation of prohibited goods; and
An individual’s right to freedom from unreasonable search and seizure.

Americans have the fewest rights when flying back to the United States. You can expect to be searched, probed, and prodded. You don’t have the right to carry a bottle of water into an airport, and you can expect substantial inconvenience, especially if you are disabled, when traveling. You can expect your laptop to be confiscated.

The situation is changing, however. A recent decision by a federal judge limits rummaging through laptops of American citizens. Another decision is clearly needed: Americans deserve the right to face their accusers, to hear allegations, and to be able to respond to those charges so that they can receive justice. The basic premise of an airport search is to address threats that are not amenable to taking the time to have such a hearing. Several weeks should be more than plenty of time for a case to be heard by a competent judge. Having some random person stick your name on a list is what one should expect of Nineteen Eight-Four and Brazil, and of America.

What would you do if it were your son trying to get home?

Iran sending aid to Gaza? What else is new?

Yes, the headlines from Al Jazeera read, “Iran to send aid ships to Gaza”. Here’s the problem: they’ve probably been aid to Gaza all along, but not the type of aid that actually helps people. Their type of aid includes guns, ammunition, and perhaps not much that could even be considered “dual use”. In fact, given what Iran is in hot water for, themselves, perhaps the ”aid” might take an entirely new dimension.

It’s not that I’m in favor of blockading aid to Gaza, especially legitimate aid. But Iran is classically overplaying its hand against the court of world opinion, while its own citizens are in great need of such aid, with oil prices having been flat for quite a while.

We can always point at one side or the other in the conflict in Gaza and assign fault. It’s undeniably true that Hamas shot off rockets into Israel, and it is equally undeniably true that the conditions in Gaza itself are appalling. Iran won’t resolve this matter. Instead they are just playing to everyone’s emotions, and they’re not doing that good of job at it.

Yet more garbage out of Fox

As if to prove the point of my previous post, Fox News had this lovely story that Google’s aggregator caught about supposed increased costs due to immigration. But once again, we have to consider the source, and in this case, the source of their story is an advocacy group called FAIR (The Federation for American Immigration Reform). Their “researchers” are advocates. A hint that something is wrong with this story is already present in the article, when you read that the “research” was released exclusively to Fox. Oops! That’s not fair research. Real research is open to all to inspect and challenge.

People often say, “Oh the left is just as bad.” I find no such equivalence. A good right wing lightning rod, The New York Times, features today an expose on a Democrat Connecticut Attorney General Richard Blumenthal, where he claims to have served in Vietnam, but didn’t. The Right does that same sort of investigation of the Right, right? Wrong.

And so I wonder, oh Conservative friends of mine, what value is Fox News when they lie to you?