Tuesday, February 8, 2011

Government Action Necessitating More Government Action

Laurence Tribe on the health insurance mandate:
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Tribe's argument for the constitutionality of the mandate is that people can free ride, and this creates serious economic consequences. Thus, it's within congresses power to regulate. But then FLG said, wait a second, people can only free ride because "the public will pick up the tab." The public picking up the tab is another government policy. So, oddly, another government policy creates the economic problem that makes this new health care mandate constitutional in Tribe's eyes.

Don't get FLG wrong. He's not saying that the public shouldn't pick up the tab when people need emergency care and can't afford it. There's a strong moral and ethical case for that. He just thought it was interesting that another government policy creates the economic situation in which the mandate becomes constitutional. Then again, FLG guesses you could argue that the government policy is merely the proximate cause, but rather that the moral, ethical, and legal consensus of our society creates that law. Thus, the logical conclusion would be that the moral, ethical, and legal consensus of our society then necessitates that the mandate eventually be rendered constitutional, either by the court or by amendment, on purely practical grounds.

3 comments:

George Pal said...

Wouldn’t this dynamic also work in any – all – other situations.

The government passes a law that all persons will be subject to random search and seizure. Another government policy (airport screening) creates the security situation in which the mandate (the new law) is rendered constitutional... on purely practical grounds.

Poor Mr. Tribe is off the reservation.

Anonymous said...

Per:

"Then again, FLG guesses you could argue that the government policy is merely the proximate cause, but rather that the moral, ethical, and legal consensus of our society creates that law. Thus, the logical conclusion would be that the moral, ethical, and legal consensus of our society then necessitates that the mandate eventually be rendered constitutional, either by the court or by amendment, on purely practical grounds."

Ok, now that you've cleared that constitutional crisis courtesy of Obama , here's your next one:

"Are Health-Care Waivers Unconstitutional?

"The president cannot simply decide who does and does not have to follow the law.

"The constitutional dispute over the health-care law has thus far centered on the lawfulness of the statute itself — most dramatically when, last week in Florida, a federal judge held the act to be void. Waiting in the wings, however, is another constitutional question, one concerning not the statute, but waivers from it.

"The Department of Health and Human Services has granted 733 waivers from one of the statute’s key requirements. The recipients of the waivers include insurers such as Oxford Health Insurance, labor organizations such as the Service Employees International Union, and employers such as PepsiCo. This is disturbing for many reasons. At the very least, it suggests the impracticability of the health-care law; HHS gave the waivers because it fears the law will cost many Americans their jobs and insurance.

"More seriously, it raises questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed — and therefore is binding — how can the executive branch relieve some Americans of their obligation to obey it?

"The dangers of inequity are obvious. Will only corporations and unions get waivers, or can individuals also get them? ..."

Rest here:

http://www.nationalreview.com/articles/259101/are-health-care-waivers-unconstitutional-philip-hamburger

Oh course the plan could very well be if the courts renders everything constitutional, then by,bye waivers. Then what? Could it be exactly what the critics have said? National Health Care complete with death panels? Wouldn't that be something?

Mrs. P

Tim Kowal said...

I had the exact same reaction to Tribe's piece, up until this point:

"There's a strong moral and ethical case for that. He just thought it was interesting that another government policy creates the economic situation in which the mandate becomes constitutional. Then again, FLG guesses you could argue that the government policy is merely the proximate cause, but rather that the moral, ethical, and legal consensus of our society creates that law. Thus, the logical conclusion would be that the moral, ethical, and legal consensus of our society then necessitates that the mandate eventually be rendered constitutional, either by the court or by amendment, on purely practical grounds."

This is an interesting argument. Ultimately, I think it's sound in the case of the states' police power. But it can't possibly follow at the national level if we are to have any semblance of a federal system.

 
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