At least one Federal judge understands Constitutional law. That would be U.S. District Judge Henry E. Hudson of the Eastern Virginia District. In a ruling announced today, Judge Hudson struck down a major provision of the Obama Administration’s health care law (Obamacare) that required individuals to buy health insurance or pay a fine.
This is a great ruling for liberty and solvency in America, but it is only one ruling out of 20 cases challenging the law. According to the Wall Street Journal report, 2 cases have already gone the other way. It will be up to the Supreme Court to be the final arbiter. As presently constituted, the court is controlled by Constitutional “conservatives” (justices who believe the Constitution means what it says versus the minority who believe it is a “living constitution,” i.e., the end justifies the means).
Some excerpts from the ruling:
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“At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health coverage — it’s about an individual’s right to choose to participate.”
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“A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers.”
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“Importantly, it is not the effect on individuals that is presently at issue — it is the authority of Congress to compel anyone to purchase health insurance. An enactment that exceeds the power of Congress to adopt adversely affects everyone in every application.”
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“Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers.”
This is a critical issue in America today. It is inconceivable that our government, which has run us into bankruptcy with unfunded mandates for social welfare, could possibly run a huge health care system in any way other than incompetently. We are already broke if one measures future liabilities of Medicare and Medicaid. Social Security is but a shadow compared the Medicare. This issue alone could be enough to send America to the dustbin of history as inefficiencies and inevitable increased taxation run health care and the vitality of our economy into third rate status.
Now we know why Supreme Court appointments are so important. You’d better hope nothing happens to a justice who is part of the conservative majority.
It would be interesting indeed if courts started to read the actual text, of like, the actual constitution and consistently rejected laws on the grounds that the constitution did not grant government the power to enact that law!
I feel that the best model for healthcare would be a private/public hybrid model. Nobody wants a full government takeover of healthcare, but anyone who thinks the free market alone produces the best solution just hasn’t studied the numbers.
We pay more than any other western country for our health care, and for all of the money we spend, the net results are pretty poor.
Of course, the solution the Democrats came up with is terrible. The worst of both worlds. Single payer is the answer here. Look at the facts around the world. It just works the best.
Stefan: anyone who thinks that “the numbers” are measurements of a free market has not seen the video which was the previous post on this blog! We have:
– a near-total divorce of the actual health care consumer from the payer
– broad and deep intrusion into the pricing mechanism by medicare
– controls on who can become a doctor, who can sell a drug, what drugs can be sold, etc.
– byzantine state-by-state regulation of insurance companies prohibiting competition across state lines
– an insane tort system that only a trial lawyer could love
– laws forcing hospitals to treat anyone with a medical emergency, regardless of ability to pay, and then somehow foist this cost off onto paying customers
– etc etc etc
It isn’t a free market. And the numbers are measurements of this disaster, not an actual free market.
By the way, anyone who says the rest of the world is “working” either has not looked at the care actually provided in the rest of the world, or has not seen the care actually provided in the US. Even today. Even under our broken system. The care provided is night and day. In Canada, those who can get to the US and have the money do so for anything that matters. In England, basically no one has orthodenture (even news anchors on the BBC have crooked teeth that look like a mess). In New Zealand people wait and die for routine things that would be taken care of quickly in the US.
Which are you? Rose-colored glasses whenever you look at the socialized disasters around the world, in total denial that they could be that bad? Or cavalier dismisser of American quality “let them eat cake”?
Neither. I’m an American citizen who has lived in two other countries (Germany & Australia). Although those systems absolutely have their problems, my opinion is that the US system just simply does not produce the greatest results for the greatest number of people.
1) 42% of all bankruptcies are caused by medical bills, and 2/3rds of those filings are by people with insurance coverage.
2) 15% of U.S. GDP is spent on health care; this is a greater percentage than UN member state (except for East Timor).
3) The US is 50th in the world in terms of life expectancy, and yet our elderly still pay more to stay alive in the last 20 years of their life than any other UN nation.
If the United States freeway system was like its health care system:
- Every single road would be a toll road; you would need to pay just to go drive a few blocks down the street.
- The right to drive would cost you, on average, nearly 7k/year, the highest in the world.
- There would be financial reasons not to fix potholes.
- There would be express lanes, but you would need a BMW to drive in them.
- And of course, if your car has been in an accident, you wouldn’t be able to drive at all.
We can argue back and forth about ideology, but it should be pretty clear: the US spends the most and gets the least in return. Australians look at the US and wonder, “what the hell are they thinking?” In Britain the national health care system is a point of pride for everyone, including conservatives.
I’m sorry, but the grass really is greener sometimes.
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(1) “Illness and Injury as Contributors to Bankruptcy,” Himmelstein et al, Health Af airs, February 2, 2005.
(2) WHO (May 2009). “World Health Statistics 2009″. World Health Organization. Retrieved 2009-08-02.
(3) https://www.cia.gov/library/publications/the-world-factbook/rankorder/2102rank.html CIA Factbook, Life expectancy by country.
I think the judge was right–this was heard on motions for summary judgement and the other 400 provisions were not involved. The doctrine of severability does not allow the dumping of an entire law in the absence of a severability provision, just all those provisions intertwined with the provision which is struck down. And that is exactly what Judge Hudson has done.
Stefan: so you didn’t hear my point. I will repeat it in case this was an honest error.
The US has a disasterously fascist system. It is not any kind of free market, it is not even close to a free market.
A lesser point is that the US does not get less health care, or lesser quality healthcare than the rest of the world. We get better, even now, but at a far, FAR, FAR higher price than we would get under a free market. But you dismiss this as “ideology”. So be it. The publik edukation system has trained you well.
In discussions like this, usually both side have merits, but this does not mean that “the truth is in the middle”.
Let us remember that we are The United STATES of America, and not just America; and we do not have a national government, but a FEDERAL government. Nothing prevents the States from legislating health care. The huge benefit of diversification of legislations (states, local communities) is that you can escape from an oppressive or stupid area, moving to another (this is what is currently happening in California), so ours is a self-correcting system. But if the Federal Government decides on something, you are stuck.
I am quoting the Stefan’s comment: “In Britain the national health care system is a point of pride for everyone, including conservatives.” Well, in UK it is forbidden to do heart-bypass for people older than 55; In USA, I had the bypass at the age of almost 70, and it was performed on the third day after the diagnosis. My out-of-the-pocket expenses for that was $2000. Stefan, are you still proud of the British system?
Please provide evidence for the claim re. bypass surgery in the UK.
Believe me, as I stated before I am fully aware of the problems the UK, Germany, Australia, and other countries face with their systems. I am not one of those who say it is “perfect” by any stretch of the imagination. I am saying, however, that the US system clearly does not produce the greatest good for the greatest number of people. This isn’t even up for debate as far as I am concerned. What is up for debate is how to fix it.
I understand the arguments being presented which say the system the US has not truly a free market. This makes some sense to me, and opening up the borders so that people are permitted to purchase insurance across state lines is one way of making it freer. (And drive down costs). There are certainly some good points in to be made in this area.
But it doesn’t solve the US’s problem of cost and accessibility. Ultimately what makes even more sense to me is a system (like our freeway system) that everyone pays into, uses, and benefits from.
Regarding good causes such as public healthcare, although mightily tempting, are legal folly. A bit of Shakespeare, “to do a great right, do a little wrong.” The response to this was “Twill be recorded as a precedent, and many an error, by the same example, will rush into the State.” Tacitus put it another way. “That which is now supported by example, growing old, will become an example itself.”
Strict adherence to the Constitution is (was) vital to our continued existence as a free nation. When bad decisions are rendered by the Judiciary, they are used as example in succeeding cases and further erosion results.
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jerry C I was starting to wonder if I had misunderstood the us constitution. thank you for your input. I didn ‘t think this was like the fair housing act when MLK jr was assasinated and Johnson put through section VIII of 1964 article that gave the federal government the power to enforce civil rights issues instead of the private sector. Why does Obama get the entire blame for that wannabe amendment anyway it’s probably been in drafting since carter.
Bearster, would you please explain to me what you meant about out fascist free market system. i kinda get your point. i realize that the health care bill is not the answer to our current economic woes but it will never pass 38 states. no way let the system work it’s own self out and leave those old judges appointed for life (please leave that branch out of this. The constitution, it is a work of art (not all of the amendments) in keeping order by federal and states checks and balances for the most part.
What is a living constitution – please define?
I’ll tell you what though, something definitely needs to be done about the federal reserve which has no reserve. the name is a misnomer. actually, if it wasn’t so dangerous. you could laugh at how stupid it is
A “living document” or “living constitution” is a trick of wording meant to allow the current cabal of legislators to ignore all precedent or limits on their authority — and do whatever they please. “Living” is added to the constitution because – while arguing that “living” is better than a “dead” thing – the current Congress wants to “adjust” or “grow” the Constitution to “bring it into the modern age” and “free the Constitution from the stranglehold of archaic bias”.
Sounds wonderful doesn’t it? “Freeing” things from “strangleholds”. How could that ever be a bad thing?
But, the intent is to ignore limitations and due process requirements of laws set in place before the time of the current Congress — limitations and process restrictions that were set their for the very purpose of stopping acts of future tyrants (whether individuals like Hugo Chavez or oligarchies like the communist party in Russia) from becoming another King George (the ruler that America was founded to break free from). Indeed, the Constitution in 1776-1779 was written with Obama and Harry Reid in mind.
Am I missing something? Of course the constitution is a living document. It was designed by the forefathers to be adjusted if necessary. What do you think the point of Amendments are?
If the people don’t like a specific adjustment, then they adjust it back. (Think prohibition) But my friend, the constitution always has been amendable. This is part of the genius of the forefathers – they specifically designed it with this fact in mind.
TOM is right, it’s not a “living” document in the way you are thinking. I can hardly believe the intent of the forefathers was to allow the government to usurp more powers over the populace – or, that the government should be some kind of service provider. The obvious original intent was to limit government powers and growth. You can effectively say we have a “dead constitution” now, as current and prior leadership seem happy to weave their way around it as it suits them.
“Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers.”
In other words……Congress and Obama cannot assume a power not given to them by the Constitution by convoluted wording and expressions of goals claimed to be valuable on their face.
As I am not given the authority to move the fence between me and my next door neighbor 10 more feet onto his land and call it the “new, improved” property line — giving (as justification for the change) the really great things I am going to be able to do on the annexed land and on my property as a whole due to this additional room…….
You would think all this would make sense to anyone at all and be included in the process of writing the damn law. But, when you add to the dynamic the fact that the authors do not want or honor laws written before them (like that pesky Constitution), it all stands to reason……if “reason” is the right word to use in this context. ….not sure “right” or “wrong” ever are given any considerable consideration by these folks.
I am from Australia and I have relatives in the USA. I have been following this whole fiasco for some time.
First of all, I think that any statistics given by the UN should be disregarded, especially when it comes to quality of life and life expectancy. People die for a variety of reasons, usually they die at a young age because of diseases for which there has been no cure available. Yet, during the 20th century we made great strides for a number of these diseases. Most people diagnosed with cancer will die within a short period of time. My sister and my cousin are two examples of people who lived only weeks after initial diagnosis.
Second, the Australian system is very flawed. It does not allow us to opt out of the Medicare side of health insurance. In fact we are not allowed to use a private insurer to get refunds for our GP visits. On top of that the refund is very limited leaving us very much out of pocket. Whenever the ALP are in power there is a massive drop of people using the health funds, which in turn causes the health fund insurance to go up… and up.. and up. On top of that the fund puts limits on ancillary benefits – dental, optical, physiotherapy, pharmaceutical are examples of these benefits. What the govt. refunds to the doctors is well below the scheduled rate that is determined by the govt. This scheduled rate does not take into account the costs of running a surgery. For the most part going to the hospital for treatment is free, but that means the emergency room becomes overcrowded with people who should be using a GP. It is wasting resources.
Comparisons with car insurance and toll roads are totally ridiculous. It is comparing apples and oranges. In the case of roads one has to go back through some very old English cases involving common lands. Roads are common lands, and we do in fact pay govt – local, state and federal – for the upkeep of those roads. Toll roads are a different matter. They are usually privately built, rather than being built by the govt. I will use the Australian example of the M2 motorway. It was built by a private consortium, and we paid a toll to the builders for fair use of the road, yet the State govt of NSW still determined the road speed, and the state govt has a lot of say over the road. Likewise the Sydney Harbor bridge was built as a toll road. Even though the bridge has been paid off we continue to pay a toll. It is apples and oranges when compared to health insurance.
Abominablecare is nothing like what we have in Australia. Here in Australia the mandate means that everyone (without exception) pays an extra 1.25% of tax to pay for the scheme every year. Muslims etc. do not get exemptions from paying that tax. This is not a penalty and there is no opting out.
“Abominablecare is nothing like what we have in Australia. Here in Australia the mandate means that everyone (without exception) pays an extra 1.25% of tax to pay for the scheme every year.”
I agree. Obamacare is nothing like what you have there. Obamacare is poorly-executed disaster. You basically have a single-payer system. Of course it’s flawed, there is no such thing as a perfect system. Mountains of statistics don’t lie though & at the end of the day it’s still a much better health insurance system than the US has.
But I have to ask you: from what you know of the US system, would you personally give up your system to have ours? I’m just curious because I, like all my friends in Australia, think AU has a pretty fantastic overall.
@ Stefan:
“because I, like all my friends in Australia, think AU has a pretty fantastic overall”
otherwise known as: “How could Nixon have won? Nobody I know voted for him”.
Statists love their government sponsored health care and efficiency and actual productivity will always be beside the point (doesn’t fit the narrative). I know, I am originally Canadian, and the Canadian health care system doesn’t even come close to holding a candle to the US system (unless of course you like little access to new technology, doctor shortages, OR shortages, and all encompassing rationing systems).
Stefan please stay on topic. Discussing the merits of various health care systems is entirely irrelevant to the authors post regarding consitutionality of the individual mandate.
The post was about health care, and we’re twenty comments deep into a discussion about health care. How am I going off topic?
Don’t answer that. I wouldn’t want you to go off topic.
@Marco That’s certainly a fair point with the Nixon quote. I will say this however: At heart, I’m a “facts and numbers” man. I would imagine many of you here are as well. And I find that whenever I debate health care, nobody on the other side ever seems to back up their claims with any numbers. It always seems to be unsubstantiated claims and opinions, but never any hard facts, graphs, or numbers to support it.
It could be that this kind of stuff (doctor shortages, limited access to new technology) is tougher to quantify in numbers. But I suspect the real reason is because they don’t exist.
Well, next time I am Canada and unfortunate enough to have to go to my family doctor from a past life, I will take a picture of the sign above the admin that says “because of the lack of availability of family practice doctors, we are no longer accepting any new patients” (dated 2006). Or, you can do a quick search on google/bing with “Canadian doctor shortages” (see below). I am pretty sure you will see a plethora of articles that might help you quantify the claims.
It is ironic that a big government statist, such as yourself, would be a “facts and numbers man”. The too don’t really go hand in hand and is not a centerpiece of the liberal propaganda machine. Garbage in garbage out when dealing with government run organizations, you would think the global warming “data” would be enough to move you slightly off your narrative.
Macleans (uber liberal rag in mold of Time): http://www.macleans.ca/science/health/article.jsp?content=20080102_122329_6200. A quote:
“Today (2008), five million Canadians are without a family doctor. A 2005 survey found that just 23 per cent of Canadians were able to see a physician the same day they needed one—placing this country last among the six studied, including the U.S., Britain and Australia. Canada’s doctor-patient ratio is among the worst of any industrialized nation: with just 2.2 physicians per thousand people, it ranks 24th out of 28 OECD countries (well below the average of three). And among the G8 countries, Canada ranks dead last when it comes to physician supply.”
And an even better quote:
“The CMA estimates it would take 26,000 more doctors, right now, to bring Canada up to the OECD average. Medical schools aren’t graduating enough students to keep up with demand, and Day estimates that 1,500 Canadians are studying medicine in other countries. Already, one in nine doctors who graduated in 2006 practises in the U.S., noted one April article in the Canadian Medical Association Journal.”
Hmmmmmm…..I wonder why they practice in the US?
I will let you research the rest…
Stefan:
See this about Canada and UK health care: Government-Run Health Care Kills Thousands
That’s right, they don’t exist. How can they?