Constitution: Static or Living and in it means?

[Gokul43201]

...if justices can just re-interpret the Constitution through a modern lens...

I have a hard time understanding exactly what this means. Justices are constantly interpreting the Constitution through a modern lens, aren't they? With things like the internet and communications and such.

 

[russ_watters]

I have a hard time understanding exactly what this means. Justices are constantly interpreting the Constitution through a modern lens, aren't they? With things like the internet and communications and such.

I may have worded that a little too weakly: the issue of judicial activism as discussed in this thread and others is more than just applying freedom of speech to the new medium of the internet - applying the original intent to a new application. It is deciding that the original intent itself is now obsolete and knowingly disregarding it or finding a loophole that enables ignoring it. Currently, the catch-all loophole appears to be the interstate commerce clause. Let me pose a hypothetical to demonstrate:

Given the broad regulatory powers currently interpreted to be allowed by the ICC, why was it necessary to pass the 18th Amendment to ban the sale of alcohol and would such a thing be considered necessary today?

 

[mheslep]

Tuesday a Federal Appeals Court judge took issue, in court, with the President's Monday remarks:

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

http://blogs.wsj.com/law/2012/04/03...-circuit-whether-it-supports-judicial-review/

 

[BobG]

It is hard to know what could have been going through Obama's head when he said this, but I highly doubt that he misunderstands the role of the courts. It is possible that it is just an overreaction to nervousness about the possibility that his most significant accomplishment could be nullified just in time for his re-election bid. For that to happen would all-but be an official ruling that Obama's concept of government is un-American.

Or his comment was based on the calculation that having the Supreme Court strike down the law in its entirety could motivate more pro-Obama voters turn out in hopes of placing more liberal justices on the court.

That may be a miscalculation. Striking down the law in its entirety may help him (I'm not sure how much it would, if any), but striking down just the individual mandate would be a disaster for him.

A heavy majority dislikes the idea of an individual mandate, while a heavy majority approve of the part that prohibits insurance companies from denying health insurance to people with pre-existing conditions. The latter can't stand without the former. Striking down just the individual mandate means Obama would have to oversee a Congress dismantling the ACA or else oversee the financial disaster of an ACA that can't bring in the money necessary to make it work.

On the other hand, http://www.rawstory.com/rs/2012/04/01/howard-dean-striking-down-individual-mandate-will-help-obama/ seem to have just the opposite take on the situation than I do, so who knows? (Of course, Dean doesn't actually explain how ACA could work without the individual mandate.)

Regardless, the decision will have an impact both on Obama's reelection hopes and on the future of the US Supreme Court.

 

[SixNein]

Tuesday a Federal Appeals Court judge took issue, in court, with the President's Monday remarks:



http://blogs.wsj.com/law/2012/04/03...-circuit-whether-it-supports-judicial-review/

Are federal judges vetting political speeches now days?

 

[TheStatutoryApe]

It is hard to know what could have been going through Obama's head when he said this, but I highly doubt that he misunderstands the role of the courts.

It looks like rhetoric. Obama was also initially publicly supporting the bill of attainder against the people receiving bonuses from the bailed out banks. I think he is simply saying what he feels, or was written into his speech, without much regard for whether or not anyone is going to realize the legal ramifications. Rhetoric is not about being precise, or even factually accurate, which is why I hate speeches and rarely listen to them.

Are federal judges vetting political speeches now days?

That was my thought. The judge is obviously pulling some partisan shenanigans. There is no legal basis I am aware of for the judge to bring the content of the speech into the court room. The only basis I can imagine is that the AG is essentially representing him in court but I can only imagine that would extend to public statements regarding the specific case.

 

[Vanadium 50]

This Federal judge was hearing a case, Physician Hospitals of America, et al v. Sebelius, where the issue came up. While it certainly looks like the judge was having a hissy fit, he wasn't having an irrelevant hissy fit.

By the way, this is a very interesting case. This law improves American's access to health care by banning physician-owned hospitals and prohibiting them from taking Medicare patients. There is a very interesting Fifth Amendment component to this, and an even more interesting question on standing.

 

[russ_watters]

Here's the full transcript of the remarks, relevant piece quoted:

With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that's already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that’s just the part that's already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

And I think it’s important, and I think the American people understand, and the I think the justices should understand[2], that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate[3].

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress[4]. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint[1] -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step. [annotated by me]

http://www.whitehouse.gov/the-press...ident-obama-president-calderon-mexico-and-pri

Most of the comments on Obamacare itself appear to be scripted, but his comments on the court appear to me to be off-the-cuff. Particularly the part at the end about the conservative position on judicial activism - it is kind of a mess. His characterization of the conservative complaint on judicial activism[1] appears to me to be backwards - that typically it would be a failure to overturn an unconstitutional law that constitutes judicial activism. At the same time, he's saying he now supports exactly the position he is criticizing!

Still, even in the parts that appear scripted, he makes some poorly conceived comments:

[2] Justices need to consider the practical utility of the law? That's precisely the conservative complaint against judicial activism. The judicial oath is to the constitution, not to practicality. It does not matter if the law is functionally good or not, what matters is if it is constitutional. That's the judiciary's mandated. It is Congress's job to make useful laws.

[3] Referencing "the political debate" in the same paragraph as #2 says that the USSC should be ruling on the political debate itself. Wow. So much for the independence of the judiciary!

[4] No, it was not passed with a "strong majority".

 

[BobG]

By the way, this is a very interesting case. This law improves American's access to health care by banning physician-owned hospitals and prohibiting them from taking Medicare patients. There is a very interesting Fifth Amendment component to this, and an even more interesting question on standing.

Actually, it just does the latter (prohibits them from taking Medicare patients). (Physician Hospitals of America, et al v. Sebelius)

It's intent is to address the conflict of interest created when a physician refers his patients to specialty facilities which he owns. It's a practice similar to a physician prescribing a drug and then selling that drug to his patient - a practice that's already prohibited.

There is no law prohibiting a physician from self-referrals. Physicians can buy an MRI machine, suddenly start giving MRI's to an extremely high percentage of his patients (and charging them for those tests), and no law is broken. Or, a physician can refer a patient to a specialty department in the hospital that he owns (or partially owns), and charge the patient for services without the patient even knowing about the physician's ownership of the specialty service.

While there is no law prohibiting that practice, the government discourages it by limiting services it will pay for. The government won't cover charges for self-referral (via Medicare, etc), limiting the profitability of the practice.

There's an exemption for situations where physicians are partial owners of entire hospitals, based on the rationale the physician's share of any profits obtained by referring patients to 'his' hospital becomes too diluted to influence his medical decisions. Physicians have taken advantage of that exemption by starting small specialty hospitals that only provide a few services. Essentially, they've moved their specialty services out of the hospital so they can receive reimbursement from Medicare for referring patients to the 'hospital' owned by the physcian. Congress saw that practice for what it was and repealed the exemption, with this court case challenging the constitutionality of the repeal being the result.

 

[Vanadium 50]

Actually, it just does the latter (prohibits them from taking Medicare patients).

I think that's technically true, but I also believe that being Medicare-qualified is a necessary condition for hospital liceneure.

Also, yes there is already a law restricting self-referrals, the Stark Law, passed in 1989. I say "restricting" rather than "prohibiting" because a blanket prohibition won't be in anybody's best interest. The very fact that you bring this up illustrates the question being discussed - is it the Court's job to rule on whether the law is constitutional or unconstitutional, or is it to rule on whether a law is a good law or not?

One of the interesting things about this case is that it's the Government's position that one reason (#3) to ban these hospitals is that they "undermine public hospitals". I am very interested in seeing the outcome here. If this is affirmed that the government can ban private agencies that compete with public agencies, this could potentially have a very large impact: the government would have the power to ban private or even parochial schools, for example.

 

[mheslep]

This Federal judge was hearing a case, Physician Hospitals of America, et al v. Sebelius, where the issue came up. While it certainly looks like the judge was having a hissy fit, ...

From my little observation of and personal experience with the courts, if anything is to provoke a sharp and immediate response it is a challenge to their independence and authority by a plaintiff, which the President did on Monday. It would indeed be inappropriate for a sitting judge to find a microphone or write an editorial to respond to the plaintiff; the place for such a response is from the bench, and this judge did so. If the inappropriate/overreaction characterization has been earned by anyone, it was the President, not this judge.

 

[russ_watters]

CNN is currently running an editorial calling the homework assignment a hissy-fit and a disgrace: http://www.cnn.com/2012/04/04/opinion/toobin-court-assignment/index.html?hpt=hp_bn7

Sure, it supports my position, but I'd cut them a little slack here, at least on asking the questions, if not the homework assignment itself. The problem facing the courts is that they are supposed to be mute, which makes them defenseless against political rhetoric. Yes, the court is being partisan here, but it is Obama who pulled the court down into the mud. Judges don't hold press conferences to respond to the challenge in kind, so instead they responded in their official capacity. This is better, imo, than free-form rhetoric as it requires the Obama admin to carefully prepare their position and explicitly state it on the record. In other words, it pulls the argument out of the mud and puts it into the more civilized setting of the courtroom.

 

[jim hardy]

i just hate to see the insurance industry being handed the power to tax.

Might US vs Butler apply to the mandated participation and penalty?

 

[BobG]

One of the interesting things about this case is that it's the Government's position that one reason (#3) to ban these hospitals is that they "undermine public hospitals". I am very interested in seeing the outcome here. If this is affirmed that the government can ban private agencies that compete with public agencies, this could potentially have a very large impact: the government would have the power to ban private or even parochial schools, for example.

I wouldn't expect to see #3 affect much outside this particular case, and definitely not have the effect of banning private or parochial schools. People that send their kids to private and parochial schools still have to pay taxes that support the public school system regardless of whether they utilize the public school system or not. In fact, people with no kids at all have to support the public school systems.

On the other hand, something like this case could affect proposals for school voucher systems where people would be refunded part of their taxes in order to pay someone other than the public school system to educate their kids. (And if that ever happens, then I'd expect people with no kids to be the next group of outraged citizens.)

It's not unconstitutional for the government to decide to spend tax money where they see it doing the most good (even if they're wrong about how much their decision will actually help the general public). I would be shocked if the physicians won their appeal. I expect the district court to uphold the Texas court's decision that already denied the physicians' claim.

 

[BobG]

i just hate to see the insurance industry being handed the power to tax.

Might US vs Butler apply to the mandated participation and penalty?

I agree. Somehow, including the insurance companies in this makes it appear that we still have private medical care instead of socialized medical care?

Obviously, deciding the government would be the health insurer for everyone and raising taxes to fund that would never have passed for several reasons. But inserting insurance companies into the process just makes the process even more expensive (the insurance companies have to pull in a profit on top of whatever the cost of health care is), plus raises some constitutional questions the government may well lose.

 

[russ_watters]

This story was in the news section, not the op-ed section of USA Today:

Other presidents took on high court before Obama

http://www.usatoday.com/news/washin...supreme-court/54065008/1?loc=interstitialskip

So Obama is keeping company with Jefferson, Lincoln and FDR? Really? Let's examine them a little more closely:

1. Jefferson challenged the court before judicial review was established, federal authority was still actively being figured out and fought over and there was a legitimate possibility of dropping into civil war. I'm not sure Obama really wants to go there.

2. Lincoln. Yeah - there was a Civil War.

3. FDR. The left's other hero. He threatened to add to the quantity justices to the court who agreed with him in order to change the balance because they kept ruling his actions to be unConstitutional. It may have been technically legal, but it couldn't possibly violate the spirit of separation of powers any more thoroughly. And this is the fight Obama is fighting. But IMO, this doesn't stack up with the other two and the current situation doesn't stack up to FDR's. This isn't the Great Depression and we're not just coming out of an industrial revolution. And even if we were, the other two examples were ones where the very existence of the country was at stake. That isn't the case today, nor was it during the Great Depression.

Also:

It wasn't the first time Obama had opposed the high court in public. The last time, it was directly in front of them: He criticized the justices' decision paving the way for corporations to spend unlimited amounts of money on independent political ads in his 2010 State of the Union Address, as six justices watched from the front two rows.

Right, so he went to the unprecedented length of inviting the USSC to the state of the union address (which isn't done) so he could publicly call them out. I guess we should have seen this one coming! And he shouldn't now complain that he's starting to irritate the judiciary.

 

[Vanadium 50]

I wouldn't expect to see #3 affect much outside this particular case, and definitely not have the effect of banning private or parochial schools.

I think it's interesting because this is, as far as I know, the first time the government has made the argument that they have the authority to prohibit anyone from competing with them. And while you may be right that they wouldn't go after private or parochial schools, at least not right away, there's a difference between an action that the government cannot take and an action that it simply chooses not to take.

I wonder what the management of FedEx or UPS thinks of this? The USPS needs money, and most of it's package shipping business has gone elsewhere. Under this legal theory, its problems could be solved easily.

 

[BobG]

I think it's interesting because this is, as far as I know, the first time the government has made the argument that they have the authority to prohibit anyone from competing with them. And while you may be right that they wouldn't go after private or parochial schools, at least not right away, there's a difference between an action that the government cannot take and an action that it simply chooses not to take.

Technically, the government isn't prohibiting physician owned hospitals from competing with larger hospitals. From http://docs.justia.com/cases/federal/district-courts/texas/txedce/6:2010cv00277/123207/111/0.pdf?1301712489:

Section 6001 does not prohibit physician owners from building or expanding a hospital
on their property. See 42 U.S.C. § 1395nn. Plaintiffs could lawfully complete their projects and continue to bill Medicare for health services as long as those services were not the result of a physician-owner’s referral. See id. Plaintiffs could also lawfully continue to self-refer when patients or their private insurers will be billed. See id. The only value Plaintiffs have lost, under the law, is the ability to bill Medicare for self-referred patients, and as discussed below, that does not constitute an impermissible taking.

In practice, yes, the government can definitely handicap competitors just because the government is such a large customer. It's already hard for UPS, FedEx, et al, to compete against USPS when the USPS can lose money and still stay in business. It's already hard for private/parochial schools when attendance means paying for both public schools (via taxes) and private schools (via tuition).

And, yes, in practice, the restrictions on self-referral do gut many small, physician owned, specialty hospitals because such a huge percentage of their customers only go to those hospitals because of the expert advice of their doctors (who just happen to own the hospital they're sending their patients to). There's at least the appearance that these doctors could be scamming their patients (and the government's Medicare program), while companies such as UPS, FedEx, private schools, parochial schools almost certainly are not scamming their customers.

 

[russ_watters]

In that case, there may be the appearance of a scam, but the individual mandate is just an attempt to fix a flawed private business model. Many young people forgo insurance (I did it) because they are healthy, which makes costs go up for everyone else. So forcing everyone to get health insurance - and at a much higher rate for the young, who now can't buy it cheaply due to the elimination of the insurance company's incentive to charge them less - brings down the average cost of being insured.

So if the government can pass a regulation on busines just because it makes good business sense to the government (as if we should generally trust the government's business sense?) what is to stop them from applying that to other areas? Some hypotheticals:

-Solar panels are expensive partly due to the lack of economy of scale due to the relatively small size of the market. So if we just require all homeowners to buy solar panels for their homes, we can bring down the average cost of solar panels. Makes good environmental sense too.

-GM is doing better now, but if we drop back in time a couple of years, the problem facing them was too much legacy pension and healthcare costs for the sales they have. Easy solution? Require everyone with a driver's license to buy one new Chevy every 7 years. More Chevys on the road means GM is better able to deal with their fixed costs. And it's a job creator too!

-America needs a President who is a uniter, not a divider because working together to achieve national goals will make life better for all of us. So to encourage national spirit, I'd force every American to buy an American flag. And a red, white and blue armband and a pair of jackboots too. Er...wait... nevermind.

 

[Office_Shredder]

and at a much higher rate for the young, who now can't buy it cheaply due to the elimination of the insurance company's incentive to charge them less - brings down the average cost of being insured.

Because people don't get to choose which insurance company they purchase insurance from?

-Solar panels are expensive partly due to the lack of economy of scale due to the relatively small size of the market. So if we just require all homeowners to buy solar panels for their homes, we can bring down the average cost of solar panels. Makes good environmental sense too.

There are already tax breaks for purchasing solar panels. There is no difference between being given a tax credit for buying solar panels and being taxed for not buying solar panels.

 

[russ_watters]

Because people don't get to choose which insurance company they purchase insurance from?

I'm not sure what you mean.

There are already tax breaks for purchasing solar panels. There is no difference between being given a tax credit for buying solar panels and being taxed for not buying solar panels.

In the last line of the balance sheet the numbers are the same, but how you get there matters enough, at least politically, that Obama chose not to formulate it that way. Obama's way, while more likely to be unConstitutional, was seen as less politically problematic for him. Ironic.

Still, because they are functionally the same, I think they should be considered in the same logical analysis. Democrats tend to default to the conclusion that since one is Constitutional, the other should be too -- without actually considering the logic under which it is Constitutional. So my question is this: do democrats actually believe that the framers intended that the government could tax people whatever it wants and use that money for whatever it wants?

 

[SixNein]

From my little observation of and personal experience with the courts, if anything is to provoke a sharp and immediate response it is a challenge to their independence and authority by a plaintiff, which the President did on Monday. It would indeed be inappropriate for a sitting judge to find a microphone or write an editorial to respond to the plaintiff; the place for such a response is from the bench, and this judge did so. If the inappropriate/overreaction characterization has been earned by anyone, it was the President, not this judge.

I think you are misrepresenting Obama due to partisan ideology. The president hasn't taken action to challenge the authority of the courts. If he were to ignore the supreme court after the ruling, that would be a challenge.

Right now we are talking about nothing more profound than partisan politics.

The comedy of our current political environment is that Romney would probably rule about the same as Obama.

 

[mheslep]

Have I or anyone else said he took action?

 

[SixNein]

Have I or anyone else said he took action?

a challenge to their independence and authority by a plaintiff, which the President did on Monday

Ask yourself one thing: Do you think Obama is prepared to disobey the courts? Of course not. So what are you left with? Politics...

 

[lisab]

Ask yourself one thing: Do you think Obama is prepared to disobey the courts? Of course not. So what are you left with? Politics...

This...+1.

 

[mege]

I think you are misrepresenting Obama due to partisan ideology. The president hasn't taken action to challenge the authority of the courts. If he were to ignore the supreme court after the ruling, that would be a challenge.

Right now we are talking about nothing more profound than partisan politics.

The comedy of our current political environment is that Romney would probably rule about the same as Obama.

President Obama has already made it clear that he's ignoring congress on various things (declaring laws invalid, creating his own laws, superceeding oversight authority, etc) - what's wrong with ignoring the SCOTUS too?

 

[Gokul43201]

...what's wrong with ignoring the SCOTUS too?

Exactly! Ask Bush and Gingrich. They highly recommend it.

 

[mege]

Exactly! Ask Bush and Gingrich. They highly recommend it.

The only real friction (publicly created, I might add) between the previous President and the SCOTUS was regarding the ability of the EPA to regulate emissions. The SCOTUS ruled that the USFG could regulated emissions, not that it HAD to. (and much of the media played this off as President Bush ignoring the SCOTUS because he didn't go right out and resurect every idled policy that had existed)

On Gingrich - he's irrelevent. Even during the nominating process, he's been irrelevent. Bringing up his off-the-cuff comments really has no bearing on what a GOP President has or would do. President Obama also campaigned against then Senator Clinton's insurance mandate... look where that's gotten us. I don't see anyone holding him to the wall over it? Point being - his words were pretty irrelevant coming from a person with little real power in the government. This also ties into another greater point about the current President using his position to stir the pot a little TOO much (which is why we're talking about this). Did he really need to comment on the Treyvon Martin shooting? I wonder how long it will take him to make a statement on the F-18 crash in VA? (which is something under his supervision) That probably isn't a politically viable topic to seem sincere on though... No sound bite from that to rally the voters! Even if the President is NOT going to act against the SCOTUS, he has a very loud mic in front of him. His comments are divisive and serve as rallying points for his supporters only. This President doesn't seem to realize that he's representing more than the people who signed the checks to get him into office - that's increasingly obvious.

 

[BobG]

In that case, there may be the appearance of a scam, but the individual mandate is just an attempt to fix a flawed private business model. Many young people forgo insurance (I did it) because they are healthy, which makes costs go up for everyone else. So forcing everyone to get health insurance - and at a much higher rate for the young, who now can't buy it cheaply due to the elimination of the insurance company's incentive to charge them less - brings down the average cost of being insured.

This is the guts of the program. Money has to come from somewhere and the amount of money coming in has to at least equal the amount of money going out.

The ACA doesn't have a huge effect on the cost of health care. It mostly deals with where the money comes from and, in some cases, such as the restrictions of self-referrals, affects where the money goes (which at least has some effect on total health care expenditures, even if not huge).

If people not needing expensive health care don't chip into help cover the expenses of people needing more expensive health care, then there's a large number of people that just can't afford the health care they want or need.

If the insurance mandate is struck down and insurance companies can't deny insurance to patients with pre-existing conditions, then the whole proposed system breaks down.

People with pre-existing conditions know more about the cost of their medical care than the insurance companies do (as opposed to the average person that's relying on probability, the same as the insurance companies do). If an insurance company raises the cost of health insurance for patients with pre-existing conditions, only the patients anticipating costs that exceed their insurance premiums will buy the insurance. And if the insurance companies adjust by raising rates even higher, then only the patients with the very most expensive costs will buy the insurance. It's a cycle that guarantees losses for insurance companies.

Unless there's some system that forces healthy people to fork out money (either the mandatory insurance mandate or higher taxes), there's no way to provide medical care to patients with pre-existing conditions at a price that's less than the cost of their care.

 

[Gokul43201]

I seem to remember this little white lie the last President told in 2004, a year before the Times broke the story on the warrantless wiretaps:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

http://georgewbush-whitehouse.archives.gov/news/releases/2004/04/print/20040420-2.html

 

[jim hardy]

Unless there's some system that forces healthy people to fork out money (either the mandatory insurance mandate or higher taxes), there's no way to provide medical care to patients with pre-existing conditions at a price that's less than the cost of their care.

Insurance companies have driven the costs so high that you now have to buy their 'insurance' as 'protection' against your financial back getting broken. . It's a giant shakedown, not a bit different than the gangsters selling 'protection' against hoodlums braking your knees. They've built a morbidly obese bureaucracy with sole purpose of harvesting us working folk.

I'd rather have Tony Spoprano's chums running the country than these puppets of the rapacious wall street crowd we've got. Unlike politicians and bankers, the 'family' recognized limits which when exceeded bleed a system to death.


bada-bing.

 

[Office_Shredder]

Insurance companies have driven the costs so high that you now have to buy their 'insurance' as 'protection' against your financial back getting broken. . It's a giant shakedown, not a bit different than the gangsters selling 'protection' against hoodlums braking your knees. They've built a morbidly obese bureaucracy with sole purpose of harvesting us working folk.

Source?

 

[jim hardy]

Source ?

i guess i got off topic. But sources abound, here's a couple.

"Insurance companies have driven the costs so high that you now have to buy their
'insurance' as 'protection' against your financial back getting broken. . It's
a giant shakedown, not a bit different than the gangsters selling 'protection'
against hoodlums braking your knees. They've built a morbidly obese bureaucracy
with sole purpose of harvesting us working folk."

Let's take those one at a time. In reverese order.

(3)

They've built a morbidly obese bureaucracy
with sole purpose of harvesting us working folk."

Medicare overhead costs are ~ 1 to 2 %. private insurance overhead costs are ~ 20 X higher .
Source:
http://www.politifact.com/truth-o-m...a-boxer-says-medicare-overhead-far-lower-pri/

""Amid a fierce debate over the future of Medicare, Sen. Barbara Boxer, D-Calif., recently compared the administrative costs for the government-run program with the costs for private insurers.

"There's a 1.5 percent to 2 percent overhead in Medicare," Boxer said during an interview with MSNBC’s Chris Matthews on May 24, 2011. "The insurance companies have a 20 percent to 30 percent overhead."

Another source:
http://economix.blogs.nytimes.com/2...ch-part-ii-indefensible-administrative-costs/

"One thing Americans do buy with this extra spending is an administrative overhead load that is huge by international standards. The McKinsey Global Institute estimated that excess spending on “health administration and insurance” accounted for as much as 21 percent of the estimated total excess spending ($477 billion in 2003). Brought forward, that 21 percent of excess spending on administration would amount to about $120 billion in 2006 and about $150 billion in 2008. It would have been more than enough to finance universal health insurance this year.
The McKinsey team estimated that about 85 percent of this excess administrative overhead can be attributed to the highly complex private health insurance system in the United States.
"""
and
"A second, more recent study of administrative costs in the American and Canadian health systems was published in 2003 by Steffie Woolhandler and David Himmelstein in The New England Journal of Medicine in 2003. The study used a measure of administrative costs that includes not only the insurer’s costs, but also the costs borne by employers, health-care providers and governments – but not the value of the time patients spent claiming reimbursement. These authors estimated that in 1999, Americans spent $1,059 per capita on administration compared with only $307 in purchasing power parity dollars (PPP $) spent in Canada.
"

Another source
http://www.nejm.org/doi/full/10.1056/NEJMsa022033

""Results
In 1999, health administration costs totaled at least $294.3 billion in the United States, or $1,059 per capita, as compared with $307 per capita in Canada. After exclusions, administration accounted for 31.0 percent of health care expenditures in the United States and 16.7 percent of health care expenditures in Canada. Canada's national health insurance program had overhead of 1.3 percent; the overhead among Canada's private insurers was higher than that in the United States (13.2 percent vs. 11.7 percent). Providers' administrative costs were far lower in Canada.
Between 1969 and 1999, the share of the U.S. health care labor force accounted for by administrative workers grew from 18.2 percent to 27.3 percent. In Canada, it grew from 16.0 percent in 1971 to 19.1 percent in 1996. (Both nations' figures exclude insurance-industry personnel.) ""

____________________________________________________________________________


(2)

It's a giant shakedown, not a bit different than the gangsters selling 'protection'
against hoodlums breaking your knees.

http://www.ncnp.org/journal-of-medicine/1023-insurers-raise-out-of-network-costs.html

""
Journal of Medicine - When Sharon Smith chose an out-of-network specialist to perform a complicated jaw surgery on her teenage son last May she knew it would cost her more. But she was not expecting $15,000.

Consumers have long complained about the cost of going outside their health plan's network, but Smith encountered a new twist: A growing number of insurers have changed the way they calculate reimbursements to shift more of the expense to patients.""

So you pay insurance to keep the hospital from billing you as if you had the money of a Carnegie or a Buffet.
-------------------------------------------------------------------------------------------------

(1)

"Insurance companies have driven the costs so high that you now have to buy their
'insurance' as 'protection' against your financial back getting broken.

Insurance companies operate on a percentage of cash flow so higher cost is in their interest. More bureaucracy and paperwork both drives consumers out of the loop and raises costs for providers(they have to build an equivalent bureaucracy) so you have two symbiotic bureaucracies feeding from one another. Were the consumers still in the loop we wouldn't stand for it.

Source:
http://www.cato.org/pubs/pas/pa211.html

"Some of the most compelling evidence that third-party payments alter the use of medical resources comes from a study performed under the auspices of the RAND Corporation in the late 1970s.(8) That study assigned families to four health insurance plans with differing coinsurance provisions and deductibles. Coinsurance is the percentage of medical bills paid out-of-pocket by the patient. The deductible measures the maximum total dollar amount that a family will pay out-of-pocket before the plan will drop the coinsurance requirement and pick up the entire medical bill. Some families had zero coinsurance, meaning that the plan paid all of their medical bills, while other families had to pay up to 95 percent of the cost of their medical bills, until their bills reached a total deductible level of $1,000 in 1973 dollars, which is the equivalent of approximately $2,850 in today's dollars.(9)

( a graph is here in the article, it doesn't cut&paste)
The RAND researchers observed how the different coinsurance rates influenced the use of medical resources by 2,500 families for three to five years. They found very pronounced changes in the use of medical resources, depending on the extent of third-party payments. In particular, families with no coinsurance (complete third-party payments) used 53 percent more hospital services (measured in dollars) and 63 percent more visits to doctors, drugs, and the like than did the group that paid 95 percent coinsurance. Overall, the total use of medical resources was 58 percent greater for the group with no coinsurance. Thus, there is clear indication that the use of medical resources by patients varies dramatically with the existence of third-party payment mechanisms. ""...
..."Conclusion
The moral of this story is crystal clear: third-party payment mechanisms have raised the total consumption of medical resources to unprecedented levels. The excessive use of medical resources due to third-party payments was estimated to be over $300 billion and the excessive administrative costs to be in the vicinity of $33 billion.
To lower the currently very large medical expenditures in the United States, the third-party payment system must be reined in. Putting the patient back in control of the medical purchasing decision is the most effective way to control third-party mechanisms, while still providing a safety net for Americans.
The worst policy that we could follow would be to increase third-party payments and reduce copayments. Yet that is exactly what is proposed by the Clinton administra tion. The evidence makes it abundantly clear that the current increase in medical bills will only be exacerbated by the Clinton plan and that rising costs will quickly run into the spending caps contained in the Clinton plan. That plan would be greatly improved if it were to impose high copayments on patients instead of low copayments, and if it were to keep predictable and relatively inexpensive medical costs, such as dentistry and eye care, out of the thirdparty payment system. But even if those changes were made, the Clinton plan would still create a large government bureaucracy controlling and limiting consumer choices, and it still would contain the dreadful idea of spending caps as a means of reducing medical costs. ""

I would add that the concept of "Financialization" is a psychological player acting on the consumers.
Finanacialization http://market-ticker.org/akcs-www?post=195434

""So what is financialization anyway? It is the process by which something very ordinary (say, a TV set) becomes financed. In doing so there is inherently created the use (and usually the abuse) of leverage.
What is leverage? Leverage is simply the ability to act as though you have much more of something than you really do. For example, you can use leverage to pry off the lid on a beer bottle. Your raw strength is multiplied by the lever (the bottle opener) to lift the cap.
But note that there is no free lunch. While the opener may multiply the force applied to the cap, the distance the opener moves is proportionally reduced compared to the movement of your hand.
In economics, leverage is the use of debt to pretend to have more economic surplus (that is, purchasing power) than you really have...
Let's take a TV set. If you save up the money to buy one, then go into the store and pay for it, you now own a TV set. There is no leverage involved; you took your economic surplus from working (which you didn't need for food, energy, shelter and clothing - thus, it's a true surplus to you) and you expend it on a TV set. The transaction is simple; once it is completed there are no residual effects. If you lose your job the next day, you still have the TV set and will forever more until it either breaks, wears out or you dispose of it in some way.
But what if the TV set costs $500 and you only have $100? Well, you could financialize your acquisition of the TV. That is, you could borrow $400 by buying the TV on installment payments with a $100 down payment, and now you have a TV.
Or do you?
Actually, the bank (or the store) owns a TV. You may have custody of a TV set, but you don't own a TV set. You owe a debt. You have promised to work tomorrow to cover the expense of the television. You don't own the TV until you pay it off.
This is all fine and well up until you lose your job. Now the bank comes after you and wants the TV back, plus whatever deficiency there is on reselling the TV set to cover your debt. You suddenly discover, much to your chagrin, that you never owned it at all.
This all sounds pretty ordinary, except that the economic effect of financializing that transaction isn't, in fact, ordinary at all.
See, in economics there is this thing called "supply and demand." The more demand there is for something with a given supply, the higher the price tends to be. In ordinary times a gallon jug of drinking water in a store is a dollar, and from the tap it costs so little we don't ordinarily put a price on it. Yet if there was just a hurricane, and there is no fresh water available, what would the price of that same gallon be? Ah, now we have much demand and very short supply, and as such the price will be quite dear. Perhaps the price of that water might be several gallons of gasoline (for the seller's generator, of course.)
So what has happened to our economy over the last three decades?
In short, things that never should have been became financialized. And as the goods and services became financialized, demand was shifted upward - people were made "able" to allegedly "buy" things they could not otherwise afford. The expected response in the marketplace to such a thing, predicted by basic economics, was that prices would rise.
Prices, in fact, did exactly what you'd expect.
""

Same goes for medical care. Substitute insurance company for bank, and, there you go.

----------------------------------------------------------------------------------------------------------

Lastly they've taken over gov't:
http://www.theatlantic.com/magazine/archive/2009/05/the-quiet-coup/7364/

"The Quiet Coup
The crash has laid bare many unpleasant truths about the United States. One of the most alarming, says a former chief economist of the International Monetary Fund, is that the finance industry has effectively captured our government—a state of affairs that more typically describes emerging markets, and is at the center of many emerging-market crises. If the IMF’s staff could speak freely about the U.S., it would tell us what it tells all countries in this situation: recovery will fail unless we break the financial oligarchy that is blocking essential reform. And if we are to prevent a true depression, we’re running out of time.
By Simon Johnson "

and from
www.lawschool.cornell.edu/research/JLPP/upload/Baxter-final-2.pdf

CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 21:175
ESSAY
“CAPTURE” IN FINANCIAL REGULATION:
CAN WE CHANNEL IT TOWARD THE
COMMON GOOD?
Lawrence G. Baxter*

Given the “situational” context of financial regulation and the deep
structures that shape and influence regulatory outcomes, it seems that the
financial regulatory system is suffering from deep capture. The power of
the financial industry—particularly that of the big banking conglomerates—
looms large in the shaping of general public policy and specific
regulatory action. This is evident from the phone logs of current and former Treasury Secretaries,50 the very visible revolving doors between
the SEC51 and other financial regulators and industry,52 the origin and
composition of the Federal Reserve Banks,53 statements by the new Chairman of the House Financial Services Committee,54 the opposition
by the Treasury Department and other senior members of the Obama
Administration to the imposition of concentration limits on an unstable
and publicly subsidized industry,55 and the inexplicable disregard of
powerful, contrarian economic studies by the Treasury Department that
favors allowing continued growth by gargantuan, high-risk financial conglomerates.
56 Political spending by the nation’s largest banks alone
dwarfs the lobbying efforts of most other sectors.57 However, the spending
influence does not end there: deep capture seems to be nourished by
collateral institutional interests.58 For example, the “deregulatory” position
of the financial industry has been heavily supported with allied lobbying
by groups such as the U.S. Chamber of Commerce.59

Furthermore, the particular processes involved in financial regulation
suggest that the opportunity for capture might be greater than ever in
financial services, particularly in relation to large-scale financial institutions,
which have very deep engagements with the regulators. Banks are
not only subject to rules that govern their structure, operations, and activities
in advance but they are also subject to ongoing monitoring in a
manner that involves broad regulatory discretion.60 One need not be totally
cynical61 to recognize that the highly discretionary and continuous
nature of bank regulation is dependent on and nurtures an environment in
which the regulators and the regulated are engaged in such close, daily
relationships as to nurture intense mutual empathy—perhaps even a kind
of “transference”62—between the two sides. This codependence might
seem inevitably to lead to a mutual identification of interests and a manifestation
of deep, if not surface, capture. Worse, it might even lead to the
kind of lop-sided relationship baldly asserted by incoming House Financial
Services Committee Chairman Spencer Bachus in remarks to the Alabama
newspaper Birmingham News: “the regulators are there to serve
the banks.”63 In other words, bank supervision provides even more opportunity
for the kind of influence that leads to capture than traditional
regulation itself.64
Yet this codependence is a fact of political life. In the face of such
reality, instead of trying to eliminate the existence of ideology and attempts
to influence, it would be more effective to create, strengthen, and enhance countervailing checks and balances. We must do something to
try to counteract the massive dominance of the financial industry in our public life.
......
The connection between regulators and industry is the area that
seems to need the most urgent attention...
Until we make such a resolution, however,
pointing out and lamenting regulatory capture adds little to the overall
debate, and it only makes us angry, cynical, or despondent.
145

They even bought the white house. see
http://www.pbs.org/wgbh/pages/frontline/obamasdeal/

"The stakes couldn't be much higher," former Senate Majority Leader Tom Daschle (D-S.D.) tells FRONTLINE about what was involved in the landmark health care legislation. "We're talking about almost 20 percent of our gross domestic product today, $2.5 trillion. Literally tens, hundreds of millions of dollars are spent on lobbying. Every special interest has their oar in the water."
To navigate the process of health reform, President Obama turned to his chief of staff, Rahm Emanuel, a consummate deal maker, who helped stock the West Wing with an all-star lineup of congressional insiders. But almost immediately, a key member of the team was forced to step down, and the country's greatest champion of health reform, Sen. Ted Kennedy (D-Mass.), was sidelined with incurable brain cancer. The administration's hopes for reform rested with Sen. Max Baucus (D-Mont.), the powerful head of the Senate Finance Committee, who also happened to be one of the Senate's top recipients of special interest money from the health care industry.
The White House encouraged Baucus to quietly negotiate deals with the insurance lobby, drug companies and other special interest groups, despite promises to run a different kind of White House. "The president said that having people at the table is better than having them throw stuff at the table," White House Communications Director Dan Pfeiffer tells FRONTLINE.


Read more: http://www.pbs.org/wgbh/pages/frontline/obamasdeal/view/#ixzz1rQ2Oebx6

That's how i see it. If you aren't outraged you aren't paying attention.

End rant. But i feel better.

 

[mheslep]

i guess i got off topic. But sources abound, here's a couple.

Let's take those one at a time. In reverese order.

(3)
Medicare overhead costs are ~ 1 to 2 %. private insurance overhead costs are ~ 20 X higher .
Source:
http://www.politifact.com/truth-o-m...a-boxer-says-medicare-overhead-far-lower-pri/

...Adjusted estimates for Medicare’s administrative costs cited by the Urban Institute, a think tank that does research on issues such as poverty and economics, range from 3.6 percent to 5 percent,
...
Meanwhile, Boxer’s 20 percent-to-30 percent figure for the private sector is more squishy. Some plans have overhead rates that high, but only a fraction do, and the industry-wide average is quite a bit lower -- 11 to 12 percent.

Another source:
http://economix.blogs.nytimes.com/2...ch-part-ii-indefensible-administrative-costs/

Another source
http://www.nejm.org/doi/full/10.1056/NEJMsa022033

____________________________________________________________________________


(2)

http://www.ncnp.org/journal-of-medicine/1023-insurers-raise-out-of-network-costs.html

So you pay insurance to keep the hospital from billing you as if you had the money of a Carnegie or a Buffet.
-------------------------------------------------------------------------------------------------

(1)

Insurance companies operate on a percentage of cash flow so higher cost is in their interest. More bureaucracy and paperwork both drives consumers out of the loop and raises costs for providers(they have to build an equivalent bureaucracy) so you have two symbiotic bureaucracies feeding from one another. Were the consumers still in the loop we wouldn't stand for it.

Source:
http://www.cato.org/pubs/pas/pa211.html

I would add that the concept of "Financialization" is a psychological player acting on the consumers.
Finanacialization http://market-ticker.org/akcs-www?post=195434

Same goes for medical care. Substitute insurance company for bank, and, there you go.
----------------------------------------------------------------------------------------------------------
Lastly they've taken over gov't:
http://www.theatlantic.com/magazine/archive/2009/05/the-quiet-coup/7364/

and from
www.lawschool.cornell.edu/research/JLPP/upload/Baxter-final-2.pdf

They even bought the white house. see
http://www.pbs.org/wgbh/pages/frontline/obamasdeal/

That's how i see it. If you aren't outraged you aren't paying attention.

End rant. But i feel better.

I did not see any alternative solutions proposed in your text? The several scholarly references to regulatory capture indicate the problems with regulation. I did see this solution in the Market Ticker reference, which I think is in the right direction:

The demand you must issue is that all the special protections that are currently afforded by government are to be dropped. The government props under home lending are taken away. The government mandates that people be treated medically irrespective of ability to pay and are able to cost-shift their care to others go away. The non-dischargable nature of student loan debt goes away. And government protection prohibiting the resale of anything someone owns that is legitimate (e.g. a truck load of Viagra) goes away.

The famous RAND study shows how third party payment (via insurance) increases costs. The insurance system, as the US uses currently, is created by the government's employer-only tax break system. To change the system, the employer-only tax break has to be either eliminated or extended to everyone independent of the employer. Agreed?

I did not find the other references - Sen Boxer (rated a half truth) or references to the 'they' boogie man as persuasive.

 

[BobG]

So, I’d like to look at this a few of different ways. 1) Quotes and citations of period work the author missed that would lend a different view or meaning. 2) The Constitution has a mechanism for allowing change, so does a court have the power to expand that meaning beyond the original intent? 3) The separation of powers vests the three branches with distinct powers, so can one branch usurp the powers of the others?

With respect to number 2 and 3, I would argue no. The courts were intended to interpret law and not make it. The courts are bound to interpreting the law’s meaning based on the Record. By definition, only the legislature legislates and only they can create or change “law”. The Executive can only agree (approve) or reject (veto) a law. The Executive is bound to enforce with equal vigor the laws it likes and dislikes.

Getting back to the original question, I think the principle that courts can interpret law, but not make it, is extremely important - and one of the issues the SCOTUS will have to confront on ACA.

In a case such as Roe v Wade, the court had a couple choices available to them in how they struck down Texas abortion laws.

They could have just struck it down, explaining why, and have gone no further. This would have been entirely within the scope of the Supreme Court's duties. Hopefully, the decision would detail why the law was struck down in enough detail that the Texas legislature (and other states, as well) could figure out how to amend their laws to comply with the Constitution or to scrap their law completely, deciding the flaws were just unfixable.

Instead, the SCOTUS went beyond just ruling on the decision and essentially made a de facto law by laying out the guidelines that would be used for all other abortion law disputes that came before the Supreme Court.

Whether that constitutes "making a new law" or is just an efficient way to head off an onslaught of new abortion laws trying a trial and error approach is debatable. There really was no obligation for state legislatures to follow the guidelines laid out by the Supreme Court. They just knew what the end result would be if they failed to follow the guidelines.

The SCOTUS faces the same dilemma if they try to only strike down portions of the ACA. If they strike down the individual mandate, that will affect other parts of the law, making them untenable or creating an effect never intended by the original law. If they go through those other parts of the law, trying to make sure the end result meets the original intent without violating Constitutional restrictions, they'll essentially be doing the job of Congress by revising the ACA for them by massive editing of the bill (even the massive editing is just striking out certain sentences, paragraphs, and/or sections). In effect, they would be extending even further beyond what's expected of the SCOTUS than they did in Roe v Wade.

Or, they could do the more sensible thing - strike down the entire law, detailing the rationale for their decision, and letting Congress do the editing (which definitely won't be happening this election year). The impact of doing that will be pretty heavy, since so much got lumped into this single bill (it's around 2700 pages?). For example the case Vanadium brought up will be moot, since the revised restrictions on Medicare self-referrals are part of the ACA.

Or, there's still the possibility the SCOTUS could uphold the ACA.