Steve Chapman writes about whether current health care legislation is constitutional or not. From the article:
“Never in the history of the United States has the federal government ever required someone to engage in an economic activity with a private party,” Georgetown University law professor Randy Barnett has said. If the Supreme Court goes along, he said, “there’s pretty much nothing Congress can’t do.”
George Will offers his thoughts here.
The only argument I've heard so far is the ICC, but I think that is a major stretch.
I don't think Chapman is actually providing alternatives that are any better regarding constitutionality. In fact he goes as far as proposing:
ReplyDelete"a waiting period or a substantial penalty—say, making the sponger responsible for the first $10,000 of his expenses.
You want the freedom to go uncovered? Then surely you will not mind shouldering the responsibilities that go with it. Otherwise, sign up now.
These basic changes would go a long way to expand access to health coverage. They are proof that it’s entirely possible to simultaneously respect personal freedom and greatly reduce the number of uninsured. But only if you want to."
If that's not hypocritical I'm not sure what is. What's the constitutional difference between a pentaly fee and his proposal?
George Will's argument of infinte elasticity in the interstate regulation falls flat, becuase the compulsory provision of health care is already mandated. It is not an expansion of power so much as a shift in cash flows. Americans (and illegal immigrants) already enjoy the benefit of compulsory care. Nobody in America can be turned away from an emergency room. True libertarians should make the case that emergency rooms shouldn't accept those who can't afford it. What universal coverage does is spread the costs Americans already incur in a transparent and equitable fashion, and hopefully lower costs by setting standards and providing preventative care. There is already defacto compulsory health care provision. Now is the time to get down to the detailed economic analysis and let the diversions fall to the wayside.
I agree with you on the Chapman article, I more or less just wanted to use it to point out the Barnett quote.
ReplyDeleteI have some issues with your second argument. First, when discussing the constitutional issue, we are discussing matters in which two or more consenting adult parties enter into voluntarily. With compulsory care we are talking about a situation where one party has a very steep demand curve, vertical in some cases. In other words, it's not a free voluntary exchange and consequently doesn't fall under the same rubric of scrutiny. Purchasing car insurance, or even a car, is a better comparision in my opinion.
Now, as you allude, I, as a libertarian, am opposed to federal compulsory care (I do not know whether there is a federal law on the books, I should add). I believe it is a state matter. Thus, it should not, in my opinion, be a constitutional issue to begin with (assuming it is).
Libertarians should not make the case that hospitals should reject those who cannot afford emergency room care. They should simply say that hospitals reserve the right to help those people or not. This is because we do not believe you can preserve and protect the rights of one person or group at the expense of another (that's why I think the Civil Rights Act 1964 is highly imperfect). Should grocery stores be mandated to feed starving, even hungry, people who come knocking on their doors (not a perfect analogy given the more complex logisitcs of medical care, but you get my point).
Personally, I believe there are enough incentives already in place (medical culture, collateral reputational damage, human nature, etc...) that such a law is unnecessary.
In fact, I am skeptical of the net benefits of the law to begin with. Like most laws it probably has hidden, unseen effects: increased use of ER care for minor issues, increased confusion/chaotic setting, increased chance of bringing airborne disease into the hospitatal (a one-time serious problem; not sure what the status is currently) and so on and so forth.
Long story short, I think this whole discussion has been a red herring taking our eyes off the main issue.
Just to clarify my probably not so clear comments comparing federal compulsory law to federal health care mandates, I believe one could make the argument that compulsory law is legitimized by the "general welfare" language found in Section 8 Article 1 of the Constitution. I do not believe the same can be said for a federal law mandating health care coverage.
ReplyDelete(Caveat I: Article 1 Section 8 refers specifically to taxing and spending by Congress and that is it, so saying compulsory spending follows suit when in reality it forces private parties to take on the costs of other private parties is still a large stretch in my opinion).
(Caveat II: I am trying to approach this issue solely from a constitutional perspective, not a moral one, so if I come across as totally heartless, that is why).
On Health Care:
ReplyDeleteI appreciate the amoral tone and measured analysis, but Federal law enacted in 1986 requires a minimum level of emergency care already. If you take issue with that, then we are talking about a whole other ball game that isn't really that relevant to the current health care debate.
http://en.wikipedia.org/wiki/Emergency_Medical_Treatment_and_Active_Labor_Act
If you accept emergency room care patients rights, then it's really a matter of economic importance and efficiency that we enact some basic legislation. Mainly, banning denial based on prexisting conditions, an individual health care mandate, subsidies for lower-income Americans, and cost control standards. It makes economic sense, legal sense, and in my opinion moral sense.
On libretarianism:
I think the libretarian argument that you must not preserve and protect the rights of one person or group at the expense of another falls under the logical fallacy of reductio ad absurdum.
All actions have consequences. When we declared protection of property an inaliable right, that mandated a police force to enforce that right. A police force encroaches on my personal property by taxing me for that service whether or not I want or use it. We live in a land of compromise and self granted rights (despite whatever "God Given" references there are).
Healthcare:
ReplyDeleteI'm not following. What does any of this have to do with the regulation of interstate commerce? Are you saying because the federal government "gurantees" your protection in the ER, citizens that are protected by said law are compelled by law to possess a means to pay for such protection?
Libertarianism:
Let me clarify; I reject the notion of positive rights, rights that come at a cost to a third party. My right to speak my mind does not come at a cost to you (for all intents and purposes). My right to being interviewed for a job (eg Rooney Rule), guranteed by the state, comes at the expense of the potential employer.
I don't think the property example is the same. Ask any serious libertarian what is the most important institution in a societly, and nine out of ten will tell you a clear, concise, understood and accepted Rule of Law. We disdain anarchists as much as we do totalitarians. Forfeiting certain properties for the guranteed protection of others is not an issue of violated rights in my view; it's an issue of, well, investment.
Now how much that (investment) tax is, what it is used for, and what my options are in terms of finding alternative investments for guranteeing my property is when we get into the issue of violated rights. This is why I think federalism is so important for the maintenance of freedom and relying on the rule of the federal government (the largest, most powerful monopoly in history) is extremely dangerous.