Health Care Debate

There is a great debate going on in the United States (as of January 6, 2010 when this was written). There have been a lot of charges and counter charges. Unfortunately, reason ,and in some cases truth, have been among the first casualties. Glenn received an e-mail on the subject that is typical of many other e-mails that are circulating on this topic. The misstatements of fact made in the following argument need to be refuted. The stage was set when opponents of the health care took to interprit parts of the proposed legislation as requiring "Death Squads". The proposed legislation in fact did not contain any such requirement, though it took a couple of weeks for that to get out.

With that background, here is a typical e-mail rant on the topic of Health Care Bills along with a few relevant objective facts. 

----- Original Message ----- 
From: D. Emer 
To: D. Emer 
Sent: Friday, January 01, 2010 5:49 PM 
Subject: FW: Health 
Care Bill 
> 
> Please take the time to read this and forward it out as 
> you see fit. 
> 
> Thanks 
> 
> The Truth About the Health Care Bills - Michael Connelly, 
> Ret. Constitutional Attorney 
> 
> Well, I have done it! I have read the entire text of 
> proposed House Bill 3200: The Affordable Health Care 
> Choices Act of 2009. I studied it with particular emphasis 
> from my area of expertise, constitutional law. I was 
> frankly concerned that parts of the proposed law that were 
> being discussed might be unconstitutional. What I found 
> was far worse than what I had heard or expected. 
> 
> To begin with, much of what has been said about the law 
> and its implications is in fact true, despite what the 
> Democrats and the media are saying. The law does provide 
> for rationing of health care, particularly where senior 
> citizens and other classes of citizens are involved, free 
> health care for illegal immigrants, free abortion 
> services, and probably forced participation in abortions 
> by members of the medical profession.

Rationing? How is that different from what we have now? As of today, health care is rationed on the basis of the answer to the question, "How much money do you have?" Choosing a different criteria for how health care is rationed is likely to be no worse than what we have now and has at least a chance of being better. Before the "rationing" complaint can be taken seriously, opponents of the change have to be a lot more specific as to why any proposed change to the rationing criteria is worse than rationing based on "how much money do you have?" 

> The Bill will also eventually force private insurance 
> companies out of business, and put everyone into a 
> government run system. All decisions about personal health 
> care will ultimately be made by federal bureaucrats, and 
> most of them will not be health care professionals. 
> Hospital admissions, payments to physicians, and 
> allocations of necessary medical devices will be strictly 
> controlled by the government.

Again, not much of a change here. Today, private companies are being forced out of business and people are being forced into bankruptcy by the high cost of heath insurance and health care. Many decisions about personal health care are currently made by insurance company bureaucrats, many if not most of whom are not health care professionals. Today, most hospital admissions, payments to physicians, and allocations of necessary medical devices are strictly controlled by insurance companies. The insurance companies are driven by their 'bottom line' and little else. Were the government in control, at least we the people have some influence via the ballot box. Again opponents of the health bill need to explain why government control of these decisions is worse than - or even as bad as - control of these decisions by the insurance companies. 

> However, as scary as all of that is, it just scratches the 
> surface. In fact, I have concluded that this legislation 
> really has no intention of providing affordable health 
> care choices. Instead it is a convenient cover for the 
> most massive transfer of power to the Executive Branch of 
> government that has ever occurred, or even been 
> contemplated If this law or a similar one is adopted, 
> major portions of the Constitution of the United States 
> will effectively have been destroyed.

The main transfer of power in this case appears to be from the insurance companies, where voters have no voice or control, to the government where they do. The individual looks to have his and her sphere of control affected very little. Again, why is this transfer of power a bad thing for anyone other than the insurance companies? 

> The first thing to go will be the masterfully crafted 
> balance of power between the Executive, Legislative, and 
> Judicial branches of the U.S. Government. The Congress 
> will be transferring to the Obama Administration authority 
> in a number of different areas over the lives of the 
> American people, and the businesses they own. 
> 
> The irony is that the Congress doesn't have any authority 
> to legislate in most of those areas to begin with! I defy 
> anyone to read the text of the U.S. Constitution and find 
> any authority granted to the members of Congress to 
> regulate health care.

This is a direct mistatement of fact. Health insurance as a 'big business' clearly engages in interstate commerce because most of them do business in more than one state. Authority to regulate interstate commerce is explictly granted by the Constitution to the Congress. The relevant section is Article 1, Section 8, paragraph 3 (emphasis added):

    The Congress shall have Power To...
    ...regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 

 
> This legislation also provides for access, by the 
> appointees of the Obama administration, of all of your 
> personal healthcare direct violation of the specific 
> provisions of the 4th Amendment to the Constitution 
> information, your personal financial information, and the 
> information of your employer, physician, and hospital. All 
> of this is a protecting against unreasonable searches and 
> seizures. You can also forget about the right to privacy. 
> That will have been legislated into oblivion regardless of 
> what the 3rd and 4th Amendments may provide.

There's nothing new here. The recently deposed Republican Administration (aka Bush43) and his Republican Congressional Majority have already trashed the 4th Amendment via the so-called 'Patriot Act' as well as other actions like wire taps and email snooping done on American citizens without the Constitutionally (Fourth Amendment) required search warrant. These things were done by the government under the banner of 'National Security'.

Be that as it may, there is no additional loss of privacy to the American people in this case because the type of personal information cited is already held by the insurance industry. Note that, as pointed out before, the insurance industry is driven by their bottom line and voters have little recourse. On the other hand, the government is subject to the same privacy restrictions as the insurance companies and the voters have recourse at the ballot box. 

  
> If you decide not to have healthcare insurance, or if you 
> have private insurance that is not deemed acceptable to 
> the Health Choices Administrator appointed by Obama, there 
> will be a tax imposed on you. It is called a tax instead 
> of a fine because of the intent to avoid application of 
> the due process clause of the 5th Amendment. However, that 
> doesn't work because since there is nothing in the law 
> that allows you to contest or appeal the imposition of the 
> tax, it is definitely depriving someone of property 
> without the due process of law.

Congress does indeed have the authority to tax as the Constitution says in Article 1, Section 8, paragraph 1:

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The current debate in Congress (and elsewhere) is the kind of 'due process' the founding fathers had in mind with respect to taxes. While it may be that there is nothing in the law - or any other tax law - that allows you to contest or appeal the imposition of the tax, you still have the same appeal that you do in the case of any Federal tax, the ballot box.

Still, this argument is interesting, based as it is on a novel view of what constitutes 'due process' with respect to taxes. The Constitution does provide a mechanism wherein this argument can be advanced via 'due process' in a way that has the possibility of reversing Congress. It will be interesting to see how this particular argument fares in the US Supreme Court. Presumably the insurance companies will take the law to court once it has been passed, so the implementation of the law may not happen for another year or two. 

   
> So, there are three of those pesky amendments that the far 
> left hate so much, out the original ten in the Bill of 
> Rights, that are effectively nullified by this law It 
> doesn't stop there though. 
> 
> The 9th Amendment that provides: The enumeration in the 
> Constitution, of certain rights, shall not be construed to 
> deny or disparage others retained by the people; 
> 
> The 10th Amendment states: The powers not delegated to the 
> United States by the Constitution, nor prohibited by it to 
> the States, are preserved to the States respectively, or 
> to the people. Under the provisions of this piece of 
> Congressional handiwork neither the people nor the states 
> are going to have any rights or powers at all in many 
> areas that once were theirs to control.

As has been pointed out above, Congress is well within its Constitutional authority to regulate health insurance as interstate commerce. Given this, it is pointless to attempt to re-fight the US Civil War as suggested here. The Republican administrations in Congress and in the White House during and for years after the Civil War appear to have handled the issue pretty well. Given this, the 9th and 10th Amendments are not relevant in this case. 

> I could write many more pages about this legislation, but 
> I think you get the idea. This is not about health care; 
> it is about seizing power and limiting rights. Article 6 
> of the Constitution requires the members of both houses of 
> Congress to "be bound by oath or affirmation to support 
> the Constitution." If I was a member of Congress I would 
> not be able to vote for this legislation or anything like 
> it, without feeling I was violating that sacred oath or 
> affirmation. If I voted for it anyway, I would hope the 
> American people would hold me accountable.

The transfer of power in this case is from the insurance companies to the government. That is what this debate is about. Under the bill, the voters (or at least those who bother to vote) will gain control over the issue that they previously lacked. However, as far as 'Joe/Josephene Voter' is concerned, there is a net gain because they will have a vote where they did not before. Beyond that, from the individuals point of view, the loss of privacy, rationing and other complaints listed in this posting really haven't changed much. 

   
> For those who might doubt the nature of this threat, I 
> suggest theyconsult the source, the US Constitution, and 
> Bill of Rights. There you can see exactly what we are 
> about to have taken from us. 
> 
> Michael Connelly 
> Retired attorney, 
> Constitutional Law Instructor 
> Carrollton , Texas

This page quotes the parts of the US Constitution that the original e-mail raised. The Constitutional arguments in the e-mail are either specious because they are based on an untrue premise, that Congress has no authority to levy taxes and regulate interstate commerce or irrelevant because of the false claim that Congress does not have this authority. The e-mail does quote the 9th and 10th Amendments, which are not relevant because they assume that Congress does not have authority when in fact it does.

The health care bill does not appear to take from us anything that the insurance companies have not already taken. In fact, by putting these things under government control, voters will regain control (via the ballot box) that they currently lack.