My Failure To Purchase Something In The Market Subjects Me To Regulation

The title words were spoken to Solicitor General Verrilli by Justice Scalia in yesterday’s oral arguments. Scalia was making the obvious point that because he might not buy a thing the government wanted him to, if Obamacare’s individual mandate was upheld the government could step in and coerce him into the act of buying whatever service or product du jour it fancied.

Verrilli said that Scalia’s accusation was not so because Congress has, and will, exempt some citizens from the requirement to buy insurance (and presumably other products and services). Who? Well, “those who for religious reasons don’t participate, those who are incarcerated, Indian tribes.”

Indian tribes are separate for obvious historical (and cultural) reasons. But it’s telling that Verrilli could only bring to mind those that were in shackles—presumably men enchained by their governments for illegalities such as failing to purchase health insurance, perhaps?—and those who have “religious reasons.” Too bad for those under lock and key, and who nevertheless have “free” health care, but what about the “religious”?

We have already seen how the government wants to redefine religious liberty as “freedom to worship” under the Health and Human Services other fiasco: Fluke-like “free” contraception and abortions paid for by those who object to them on religious grounds. We can thus guess that for Obamacare, there will be no escape, no conscientious objection for religion reasons.

Verrilli’s advanced later another argument which might appear compelling, at least to the bench’s port side. As summarized by Amy Howe, Verrilli said “everyone is either in the market for health care or will be at some point.”

This is false.

Did you not know that there were many people who eschew doctors and hospitals, whose only armamentarium against bodily invaders and decay is whiskey and aspirin, those who prefer to let nature take her course? And then there are those, probably a majority, who do not seek to eek out every last second of life without regard to expense. Why is this eccentric behavior the government’s business? Why would it be yours?

And there are other broken records I’d like to play, three other embedded fallacies in the government’s argument. One: health insurance is not health. Two: not everybody wants health. Three: health is not a constant.

The first is so obvious I blush to write it, yet it appears unknown to Verrilli and (at least) to Justices Ginsberg, Kagan, and possible Breyer, and even to Paul Clement, arguing for the “good” side. Insurance is not cost sharing. Let me repeat that. Insurance is not cost sharing. Insurance is a bet you hope you do not win. You bet with a bookie that you will get sick, the bookie bets you won’t. The pair of you agree on a price for the bet and how much is the pay off if you do get sick. Nothing could be simpler. This simplicity explains why those with “pre-existing conditions” are not offered insurance. To the bookie, it is like betting against a two-headed coin.

Justice Ginsberg is of the opinion that, somehow, the costs I must pay for my health must be borne by her, unless the government takes from her the money to pay for my care in advance. She actually used this argument yesterday.

What is wanted is not health insurance but money to pay for health care costs. Insurance is only one method to provide this money, and certainly not the best, especially when the government declares the bills of all must be born by the public purse. Indeed, insurance in that case is the worst option, hugely wasteful of money and ultimately lethal to the insurer. If you want a social-security-like system of health care, create that and not this boondoggle, wherein one citizen (regular Joe) has to pay money to another citizen (insurer) who pays out to yet another citizen (doctor), the government taking a bite at each step. That should be the counter-argument via the commerce clause: the economy will be damaged by this foolhardy policy.

Two: just as not everybody wants medical care, not everybody wants health. People often trade health, or the future promise of health, for immediate pleasures or as a swap for something greater and more lasting. Think of what John Henry sacrificed to prove that mettle is stronger than metal.

Three: if Obamacare holds, it will be the government and the barnacled, impersonal, quixotic, mindless bureaucracy which will decide what health is. And don’t you bet their definition will match yours. It will also decide what insurance means: we already know that “insurance” won’t mean “insurance.” Isn’t it strange to have a debate about a thing which is left undefined?

Justice Ginsberg said for those who don’t want insurance that “it’s not your free choice just to do something for yourself. What you do is going to affect others.” And so the government is right to step in and coerce you to buy “insurance.”

Dear Lady, this argument fails because everything you do, even in the privacy of your own home, even in the darkest recesses of your thoughts, affects others because whatever you do changes you, and thus how you interact with others. This is the human condition. We cannot therefore say that because all personal actions affects others, that the government has a right to regulate all personal actions. But this appears the direction some would like to go.

Update It is like reading tea leaves, but my take is that, as of yesterday, it is 5 to 4 in favor of overturning the mandate. Ginsberg wants to keep it, Kagan helped write it. Sotomayor appeared to support it, but not wholeheartedly, and the same with Breyer.

Now, it if is 5-4, Chief Justice Roberts, aware of the politics of how this bill passed in the dead of night, unrevealed (“pass it to see what’s in it”) and without a single Republican, might approach Sotomayor and Breyer and ask them to sign on to what is already a done deal. After all, 5-4 is enough, so why not make it appear less contentious and so calm the politics by making it 6-3 or even 7-2? He could offer them their own opinion, in which they could say that they like most of the what the mandate is about, but did not like it enough to swallow it whole.


  1. Big Mike

    I think the government wants to lose the mandate decision, but have it severable. The only solution, then, under the law (that can’t be repealed because the repeal would be vetoed) would be what they’ve wanted all along: single payer.

  2. Carmen D'oxide

    One hopes CJ Roberts is adept at brokering enough of a deal to squash the totalitarian urges of the Left for a while without creating some loophole for these denizens of the fever swamps to latch onto for another go round.

    And what is wanted is neither insurance nor money to pay for health care (the gov’t create all the fiat “money” it wants, at least for a while more). It is the power to coerce and to secure a position of power. Anything else is sleight of hand for the masses and the tongue-waggers.

  3. cb

    As I see it there are two possibilities here:
    Several highly intelligent, highly educated people somehow, magically, do not comprehend what ‘insurance’ is. (And simultaneously fail to make several other significant distinctions.)
    The other is that they are hippies, and as such are sociopath-grade liars: they are defending their mindspace (or whatever you want to call it.)

    Answer me this, do you REALLY think that these people are that stupid? In other words, do you really think that they are not lying? Simple question.

  4. Ken

    You people need to undertand the legal case before the Supreme Court of the USA is strictly and only a determination of the Constititionality of the law as written. The most considered & in-depth Federal cases assessing this are:

    STATE OF FLORIDA, by and through Attorney General Pam Bondi, et al.; v UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; Case No.: 3:10-cv-91-RV/EMT by Judge Roger Vinson,


    Commonwealth of VA, Cucinelli v Sebelius; Case 3:10-cv-00188-HEH by Judge Henry Hudson

    PROBLEM: Continued mixing up mish-mash-style philosophical values with Constitutional law as determined, in part, by legal precedent. Specifically, “why” (motive) for a legal mandate is not much relevant to assessing the legality of “how” that motive is being implemented.

    EXAMPLE: Reference to the fact that health care (& access to) is not necessarily “health” (or the achievement thereof) — that’s a clever, true, and philosophically relevant observation…but it is also totally irrelevant to the legal issue before the Supreme Court.

    EXAMPLE: Wickard & Gonzales (two key precedent cases addressing Congress scope of influence via the Commerce Clause of the Constitution — and how that is to be assessed was articulated in another case, Perez) directly address what LEGAL criteria apply.

    Pages 10-16 (mostly) of H. Hudson’s Cucinelli v Sebelius decision address the heart of the issue–in terms of LEGAL criteria. That includes the Government’s defense of the law — which turns out to be quite different from what is asserted by the blog essay, above.

    NOW: Consider the following excerpt from SCOTUSblog at

    “In the Supreme Court, a public hearing almost always will be filled with hypotheticals, the “what-ifs” in the law. While they may stray far, they are all supposedly linked in some way to an actual legal issue that is before the Court. Their main value, if they work as intended, is to bring out the broader implications of a ruling one way or another on the underlying legal question. … what the Court will be doing … trying to guess, in an informed way, what Congress would have wanted in a federal law if it could not have all that it actually put into the law. It is called the “severability” issue, and that is what the Justices will be examining next Wednesday morning in the Affordable Care Act case.”

    THEREIN lies the rub, as the saying goes.

    What’s presented in this blog essay is a mish-mash of philospophy, values, and some bold, and very very incorrect, assertions regarding the government’s postion on the health care law that are culled out of context when those arguments weren’t so much about the law as a sort of mental exercise to assess SEVEREABILITY.

    That’s a huge distinction. If you don’t get it, you cannot possibly know what you’re talking about. And that ignorance shows….

  5. Big Mike

    So, Ken, what is it you feel *you* people need to understand?

  6. Carmen D'oxide

    Ken, you sound like a lawyer. My sympathies. Good news, though; the condition is treatable, even if not yet mandated.

  7. I suspect Ken believes that the objective referents for words don’t matter. Words are to mean any mish-mash the government wants them to mean which they can change at any time. Further, he believes that the Supreme Court, a part of that self same government, is bound by prior use of that constantly morphing mish-mash of precedent along with the mish-mash of words from the government combined with the mish-mash of words floating in their heads to make a final judgment. Actual judgement is the last thing involved with this posturing. It is a huge side show of philosophical midgets posturing, dancing, and prancing in pretense of doing something real.

    That final judgement is itself will be a mish-mash to be further mish-mashed the next time the Court is in session. As a consequence, none of the mish-mash can, will, or has any connection to reality. Unfortunately the results of that side show of pretense has a huge and very negative impact upon We the People – up to and including the lives, wealth, and honor of every man, woman, and child in the nation.

    The underlying FACT that each individual owns themselves and therefor have an inalienable right to life, liberty, and the pursuit of happiness is left on the cutting room floor. The fact that We the People have a contract with our government only to protect those rights is held to be subordinate to the mish-mash. The mish-mash must be upheld by the political elite at all costs otherwise they, including the Supreme Court, cannot continue to exist.

    The whole damn crew needs to be replaced by people who can actually think and are in touch with reality. Unfortunately, that is not likely to happen until long after our civilization collapses into a huge pile of gray goo if ever. Too many of We the People are in on the take and think they can get away with it forever.

    It is time to stop feeding them. Without the productive few continuing to produce, they are nothing.

    He who is free never submits. He who submits, was never free.

  8. Ray

    Keep in mind that the government dosen’t have any resources it didn’t take from somebody. This is basically a big power grab to take over a large part of the economy under the guise of altruism. The government is going to help the poor people who doen’t have insurance. Naturally, they are going to help the poor people by spending othe peoples money. Liberals love to do good at somebody else’s expense. This is commonly called theft. That’s why socialism doesn’t work. Socialism is theft.

  9. DAV

    All I know is that I’m not free and I have a schedule of fees to prove it.

  10. I thought the above “blog essay” was a damned fine piece of work, eminently readable and expository of, if not the government’s legal position, certainly their underlying motivations. Sorry, Ken…

  11. I pay for my health care out of my own pocket. Whether I visit the doctor, dentist, or emergency room, I pay my bills. I am not a freeloader. Nobody is shortchanged by me, except perhaps insurance company stockholders. Insured health care purchasers pay MORE for their health care than I do, because a fraction of their payments are retained by the insurance companies. The doctors, dentists, hospitals end up with the same amount, or less, when they treat insured patients than when they treat me.

    That’s why doctors are always happy to see me. I pay them cash. They don’t have to mess with some insurance company. In fact, my doctor charges me LESS than he charges insured patients, and he profits more.

    The broccoli example used by the SCOTUS was abstruse. A better example would be a casino. Everybody in the casino loses, except the house. The government wants to mandate that I gamble at the casino, too. If I did, I would lose, the house would make more, and none of the other gamblers would be affected in the least.

    If the Gummit wants to give poor people free health care, then the program should be run like Food Stamps or other welfare services. That is, means-tested and paid for out of the General Fund. Why punish me to feed the insurance companies just because I pay cash for my needs, and because I refuse to gamble at the casino?

  12. Roy

    I am a lawyer (admission and apology up front), and understand the issues before the court as well as though before the people (to be expressed through Congress). The Court has a limited set of issues before it, none of which expressly include the wisdom of the statute (all 2,700 pages of it) — although the members of the Court clearly have their own notions of those extrinsic (and basic) issues and may (some with less reticence than others) allow those notions to color their decision on the case.

    Rather than point to prior Court decisions, which may be cited in the text of the final decision but may or may not actually drive the decision itself, I would point you to Abraham Lincoln’s speech at Cooper Union in February, 1860. He demonstrated with brilliant clarity that advocates of slavery in the South were bent on changing the Constitutional establishment of power, no matter their assertions to the contrary, and then restated the base proposition that the Constitution could not be properly changed except through a supreme decision on the part of the people of the nation as a whole.

    I would propose that even under a theory of a “living Constitution” which can be changed on the fly by reinterpretation, such a fundamental change in the role of the federal government in the operation of a huge portion of the economy cannot be considered legitimate under the circumstances of the passage of the legislation at issue. Not even read by a single member of Congress before its passage (at least I have not seen anyone claim otherwise), it is impossible to contend that it reflects the will of the people to change the Constitutional balance. The people don’t understand it, not even its supporters understand it (as evidenced by the administration’s volte face on conscientious objections on religious grounds).

    The fact is, it doesn’t actually make sense. As Briggs points out, the actual concern of the public is health care, not health insurance, no matter how the two issues get so horribly mixed up. When I was in Iraq, I had health care available (in the form of docs and medics), no health insurance card involved. When I or my family see the doctor during the deductible period of my military Tricare coverage, we pay the whole bill in cash – at a rate determined by the insurance company, but still out of my pocket. When I had no coverage (it happens!), we still went to the doctor – but had to pay a much higher fee because the state of New York requires the uninsured to pay a whole lot more than the “reasonable and customary” fee they can collect when paid by an insurer.

    To change direction – I’d suggest that we already have a bureaucratically-driven health care system, the bureaucrats being employees of insurance companies rather than of the government. The fees they “negotiate” with providers are completely artificial already – maybe just a bit less destructively so because there are more insurers than governments.

    There are many, many obstructions between medical providers, including pharmaceutical companies, hospitals and various professional corporations as well as medical professionals of every variety, and their patients and the resources they actually have. Those obstructions prevent any intelligent, reasonable pricing mechanism to exist, no signals, no direct relationship between buyer and seller, doctor and patient.

    There was a great article in Atlantic magazine a while back, “How American Health Care Killed My Father.” Very much worth the read, Briggs is building on the same foundation.

    No matter what the Court has to say, the need to deal with this problem won’t go away until we, as a nation, arrive at some common understanding of all the factors, implications, concerns and costs involved. One case won’t do it, but it may let us get back to work and get closer to a permanent solution.

  13. Speed

    Insurance is not cost sharing.
    Insurance is risk sharing.

    C-SPAN has available online the SUPREME COURT HEALTH CARE ARGUMENT PREVIEW sponsored by Bloomberg LAW and SCOTUSblog. Paul Clement is brilliant. Watching him crush his opponents is better than March Madness.

  14. Noblesse Oblige

    Did you catch Ruth Ginzberg’s endorsement of the idea that a failure to buy something constitutes commerce.

    This is what we have become.

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