Supreme Court To Rule On Obamacare

The Supreme Court is taking on Obamacare. There are many questions to be decided, but the largest is the so-called individual mandate.

Some have suggested that the mandate is equivalent to states requiring the purchase of car insurance. This arguments fails on at least two grounds.Supreme Court

The first is that nobody need drive and those that don’t do not need to buy car insurance. Yours truly has not owned a car in baker’s dozen years and buys no insurance. But everybody alive needs to live, and you can’t have a tax on life itself.

That is, you might imagine a tax on life itself—and the Congress does have power to institute such a burden—but you should not be forced, at the point of a gun or threat of incarceration, to fork over a fee to a government-sponsored crony just to live. If the mandate is upheld, the government will select the crony or cronies who will take your money and might not even give you anything in return for it (see below). The cronies will almost certainly funnel a portion of it back to the government to insure that they retained favored crony status.

Second, the car insurance is for the car, and the argument is that because we know that accidents not only happen but are likely and frequent, and that many disputes between those causing and those suffering from accidents will have to be settled on a routine basis, therefore it is said that insurance makes this process flow smoothly. And there is some justice in that.

Now some facts about illness and medical care. Not everybody gets sick, and some of those who do choose not to go to the doctor. Imagine that! It is also so that many who are not sick, or sick with ailments that are self-limiting, choose to go to the doctor when they really needn’t. Many people sicken as they age and die, and many of the young have no or little need of medical services. Further, a great many diseases are self-inflicted, and a great many more could have been avoided through greater personal diligence. Too, for a given ailment there are a wide range of treatments, not all of which are known to work with equal efficacy.

If Congress had made a different argument and said that because a sufficient portion of the population will require medical care, and it is the duty of this country’s citizens to care for one another, that everybody should pay a tax which would go into a pool which could be drawn from to pay for citizen’s medical care, then the law would be on stronger ground. Congress does indeed have the power to tax.

But they cowered in fear at the T-word and chose to avoid it through a ploy that must not be allowed to stand. It would set an evil precedent. Congress will be allowed to mandate that private citizens pay other private citizens for whatever services that august, yet flighty, body deems essential. Failure to pay means penalties or jail time.

The Obamacare mandate is a guarantee of a permanent crony capitalistic system, socialism once removed.

And now just think of all those facts about illness. If Congress, even through a tax, is allowed to dictate payments of medical care, then Congress will be forced to define what medical care is. This is inescapable. This is a necessary consequence of the law. Not only was a certain derided politician quite right about “death panels”, but her predictions were too narrow.

Should the insurance you are taxed for or mandated to buy cover aspirins? If not, why not? A decision must be made—and will be made. How about diapers? If you scoff at this, then you have not been paying attention to the news. And you haven’t glanced at what is happening in Europe, where experiments like these have already been made.

What about antacids? How much care and how hard should doctors work to save a life of a 92 year old? Bandages? A pot of chicken soup for every home? Should fat people be forced to lose weight? Should the government ban “unhealthy” food and practices?

A perfect blizzard of questions like these await us, questions which previously were left up to each individual citizen and family to decide will be forced on a very small body of men and women to decide with finality each and every one. This being too time consuming, the decisions will be shunted to a group which reports to Congress, which will, in a very short time, metastasize into a bureaucracy.


  1. Alas, if our beloved supremes were deciding the issue solely on factors you’ve touched upon, and I pray they do, an outcome against the rule seems likely. At least on logical terms. But the decision will more likely hinge on “what makes those-of-us-in-charge feel good” and totally ignore the self-exemption irony of those that passed the law.

    Based on reports – probably false, of course – of a former house speaker’s recent fortune-ate IPO offering experience, I’m thinking any law that exempts lawmakers needs to be tossed. Oops, you say that’s virtually all of them? Well, there you go. That proves the point.

  2. Gary

    Long past the time to water the tree of liberty….

  3. Will

    Here in socialist Canada we have the Health Act. The health act defines the quality of care that must be provided by the state as ‘reasonable’. That wasn’t so hard now was it? 🙂

    Our socialist health care is a mixed failure/success. For major emergencies (heart attacks, open heart surgery, breast cancer, etc..) the service is very good.

    For everything else the service is quite poor. We have wait times of between 6 – 12 months to see a specialist. Difficult problems to diagnose, like a mysteriously swollen knee, may take years before anything gets done. Getting a family doctor is impossible for many people. The ‘walk in’ clinics are almost always packed, and there are days where its impossible to see anyone. I know a number of people who just go to the US and foot the bill rather than wait it out here in Canada.

    There are also issues, like those faced with insurance in the US, about what treatments are covered. Unfortunately in Canada, if it’s not covered, then its not offered anywhere.

    The worst thing about all of it though is exactly what Briggs fears will happen; the huge bloated beurocracy, patronage, and cronisim. The system is a fat bloated beast with most of the tax money going in to things that have nothing to do with providing health care. As an example: A former city councillor here, who failed to get re-elected, quickly found a nice job managing a ‘local health integrator’ that came with a comfy $300k/year pay-cheque.

  4. Doug M

    Regarding the auto insurance analogy.

    The state mandates that you be able to cover the dammage that you might inflict on other citizens. There is no requirement that you insure your personal property. i.e. Liability insurance is required, not collision.

    Furthermore, the states may have powers that the Federal Government doesn’t have.

    Technicallities asside, no one has successfully explained to me how increasing access to healthcare will make it cheaper. Traditionally increasing demand for a service makes it more expensive.

  5. Ray

    The Commerce Clause is commonly believed to grant Congress broad power over national markets. However, if you read the Federalist Papers it’s obvious that isn’t what the founders had in mind. The courts have expanded the scope of the Commerce Clause and ignore the clear intent of the founders.

  6. Matt

    The courts have expanded the scope of the Comerce Clause so far as to effectively render nearly the entire rest of the constitution superfluous.

  7. GoneWithTheWind

    It’s more like a poll tax.

  8. Alex Heyworth

    And yet, even with all the weaknesses and defects you have noted, the result might be better than the current disastrously expensive and inequitable US health care system.

  9. Briggs

    Alex Heyworth,

    Quite right: it might. Then again, it might not. All evidence is that it will be worse. And can you explain “inequitable”?

  10. Lynn Clark

    Alex Heyworth: “current disastrously expensive and inequitable US health care system.”

    Why do you suppose that might be true? Here is my opinion. Most of us have no incentive to do anything to keep costs down. Why? Because most of us get our insurance via an employer-sponsored health care plan. Up until three years ago that’s how I got mine. I had what many people might call a “cadillac plan”. My contribution to the monthly health care premium was about $60/month. It had a $25 co-pay for office visits, and a $10 co-pay for prescription drugs. Everything else was basically “free”. Case in point: In 2003 my gallbladder decided to let me know it was there one night at 3 o’clock in the morning. After a brief phone consultation with an on-call physician, I managed to drive myself to the local emergency room. Once there I writhed in excruciating pain for about a half-hour until they started dripping morphine into my bloodstream. That was the beginning of a two-day stay in the hospital during which they removed the evil organ. Cost to me? $0.00. I was amazed, but didn’t complain. Over the next several years I had various and sundry rather expensive diagnostic tests done for various reasons — again at no cost to me. What did I care? I wasn’t “paying” for it. Fast forward to August 2008. I finally decided I’d had enough of 8’x8′ cubicles and computers so I quit my job and went to film school. Thanks to COBRA, I was able to continue my health insurance, but only by paying the full cost, which turned out to be over $400/month. Ouch! That covered me long enough to find a cheaper alternative that came in at a little less than $300/month for a plan that covers an annual check-up and a few other minor things (free flu shots!), but puts me on the hook for up to $7,000 of health care costs each year. Once I pay the $7,000 (if necessary), the plan kicks in and covers everything else. That’s really all that I need. I’m generally healthy and only really need a plan to protect me from a catastrophic problem that would bankrupt me. Most people are in the same boat.

    There are two big problems with employer-sponsored health care plans:

    1) They are not portable and most people would find the full COBRA premium to be prohibitively expensive,
    2) They give people little incentive to do anything to keep costs down. In fact, many/most employer-sponsored health care plans make it impossible to do so because they mandate from whom and where you get your health care. No shopping around allowed.

    If people had to buy their own unsubsidized health care insurance they would have natural incentives to find the cheapest policy and look for the best price in health care services. The fact that most of us get our health insurance via our employers makes it almost impossible to shop around. If you don’t believe this, call around to a few doctor’s offices and try to get prices for simple services like say, mammograms or annual checkups. You will be unsuccessful because the medical sector is totally unaccustomed to dealing with patients when it comes to pricing — and paying for — services. However, if we all had to buy our own health insurance — and bought policies that required us to pay a larger portion of our “usual and customary” expenses — then we would all have an incentive to shop around for the best price. That would increase competition and that always lowers prices. In the current system, there is effectively no competition. In a system in which doctors and hospitals deal only with major insurers like Aetna, there is no incentive for them to keep costs down, and no incentive for customers (patients) to shop around for the best price (and quality).

    How would this work in the real world? If we were to outlaw/eliminate employer-sponsored health insurance, it would do several things:

    1) Save employers a lot of time and money. Instead of hiring staff to administer their health care plan and giving thousands/millions of dollars to insurance companies, employers could give that money directly to their employees in the form of pay increases.
    2) Those employees could then afford to buy their own private insurance. Since they would now be spending their own money on insurance, they would look for the cheapest, quality insurance they could find.
    3) #2 would most likely incentivize a large number of people to buy “catastrophic” health insurance. The premium would likely be cheaper than the “full” premium of their former employer-sponsored plan, and because they would be paying for more services out-of-pocket, they would have an incentive to shop around for the best price on whatever services they might need. In the event they suffer a major catastrophe, their costs would be limited to a manageable amount ($7,000/year in my case). Or, people could pay for a “cadillac plan” if they choose to. Their choice.
    4) #3 would inject competition into the health care market, which would lower and/or keep prices down.
    5) Make your and mine, and everyone else’s health insurance policy completely portable. No longer would we be held hostage to an employer because that’s how we get our insurance.

    This would bring prices down for everyone, including “the poor” who are covered by government programs like Medicaid, and those on Medicare.


  11. DAV

    Lynn Clark ,

    Amen. I’m semi-retired and as a result I don’t have insurance. When I mention I don’t have any, amazingly, the costs diminish by over 67%. I’m diabetic and take four different medications. When I was first diagnosed and while I was still insured, I went to pick up the medication. I didn’t have the insurance info so decided to pay for it and get reimbursed later. I was floored to find out that a 3-month supply cost $1200. With my copay that went down to $120. Not bad but now after I lost the insurance the same medication costs me $40 for three month supply. The 3-month blood tests have gone from $500/each to under $100.

    Just like with collision repair, knowing the insurance will pay jacks the price.

    Alex Heyworth,

    The disaster is that the insurance exists at all.

  12. G Brown

    “Some have suggested that the mandate is equivalent to states requiring the purchase of car insurance. This arguments fails on at least two grounds.”

    There’s at least one other ground in addition to yours and those pointed out by other posters above. In most states you can “self insure” for auto liability purposes. File a bond with your local DMV equal to the minimum amount required for an auto insurance policy and you’re good to go; you don’t have to purchase any insurance from anybody.

    I don’t think the individual mandate or any other section of the healthcare law allows self insuring for healthcare services. The only alternative under the healthcare law to obtaining insurance is to pay a sum certain to the federal government as a tax. The closest thing we have to self-insuring in the healthcare context are health savings accounts. I recall President Bush tried to expand the role of these accounts back in 2006 but was not successful. I guess if I make the decision to not buy health insurance, the feds figure its better to force me to give my money to them to pay for other people’s healthcare than to encourage me to put that same money aside for my own healthcare needs should they arise.

  13. Greg Cavanagh

    mangled quote: “but you should not be forced to fork over a fee to a government-sponsored crony just to live.” Can I add, or to die.

    I am refering to Death Duty. A tax on diing no less.
    Victoria, Australia still applies a tax to die.

  14. Ken

    The Canadian system (see Will’s remarks) is notoriously slow to deliver “elective” services…being the impetus for the unheard-of (in the USA) creation of “Medical Broker.” See: for example. The province of Quebec was delivering services so poorly that it was sued & the right to get independent insurance was granted…but that cost lives & untold grief on others. “Quality” reflects the actual services AND their availability…many Canadians, and the Canadian government, tend to emphasize only one part of that & try to ignore the other. For anyone interested, A decade or so ago Canada’s health care system was so bad even the government couldn’t pretend otherwise…leading to a study & the infamous “Kirby Report” a portion of which is at: (find more via obvious keyword searches). THAT is the direction the USA would appear to be heading….

    SCOTUS Blog has a nice essay on the Affordable Care Act (aka “Obamacare”) & its history, with many of the key historical references noted (e.g. CRS analyses going back to 1994, etc.) & discussed from the strictly legal perspective: . Following the links at one can find a variety of assessments made—RELATIVE TO APPLCABLE LAW—which is quite different than relative to values & philosophy – a staple of know-it-alls the world over. That link leads to other links that make finding the actual court verdicts accessible, some for & some against.

    Anyone at all interested in this issue—interested enough to read this far—really ought to review the lower (below Supreme Court of the US [SCOTUS]) decisions for WHY the conclusions reached were reached. The legal links, hooks, etc. are generally at variance with the armchair philosophizing (aka “ignorant”) discussions of the vast majority of citizens & other spectators discussing this in earnest. Key legal concepts such as what is or isn’t an ‘affirmative act’ and “tax” vs. “penalty” etc. factor in significantly. Also, if one reviews decisions that reached basically the same conclusions, the rationale is not entirely consistent on some details (though overall it is very consistent). Such legal nuances may tip the outcome (SCOTUS decision) either way.


    From 1994, CBO Report: or

    From 1994, CBO Memo on the MANDATE:

    KEY (because they articulate in considered detail) COURT DECISIONS declaring the Affordable Health Care Act Unconstitutional – these are the key decisions & not various subsequent clarifications, etc.:


    Florida: And,$file/HCR_11thCirOpinion8.12.11.pdf

    Wash. D.C.:

  15. Lynn Clark

    Stuart Browning’s opinion about the Canadian health care system in this 25 minute film:


  16. Alex Heyworth

    Good to see that I provoked some debate. I suggest people looking for answers on reasonably priced health care look further afield – eg Singapore.

  17. Ken

    HOW LIBERALS THINK — this is representative:

    I followed Lynn Clark’s link to a Michael Moore commentary (response to a question) regarding Canadian Health Care: The question involved his asserted short wait times versus the reality of much longer wait times. What’s clear is he ONLY addressed the wait times to be seen by someone in the ER…..not the time it actually took to get the needed care (e.g. new knee injury gets seen in the ER in 20-45 minutes, sounds good right!?…but…the actual knee replacement surgery wait time of 12-18+ months is ignored).

    At about 1:48 he starts mentioning that Canada’s system has been underfunded for about 20 years!!

    At about 1:58 he remarks that the “CONCEPT” is sound, if it were funded properly.

    They ignore the reality that everybody waits longer, and often in pain (sometimes becoming state-facilitated drug addicts!) for significant life-changing treatments.

    THAT illustrates the thinking, philosophical possibility of an unachievable outcome over real world realities.

    The adages re capitalism & socialism/communism is neatly illustrated:

    Capitalism: Unequal distribution of wealth; Socialism/Communism: Equal distribution of misery.

    Liberals equate “equal” with “fair” and “fair” is “good.” Pretty much everyone agrees with that, but execution & actual outomes don’t seen to matter, and when the “equal” “fair” (“better”) value-approach produces worse overall outcomes, they simply ignore that to the extent it appears they really do not comprehend it. Delusion, in other words.

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