tag:blogger.com,1999:blog-8512362.post7962484703423167362..comments2024-03-10T13:59:19.230-04:00Comments on xpostfactoid: Another 'limiting principle' to individual mandate: states can opt outAndrew Sprunghttp://www.blogger.com/profile/17601269968798865106noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-8512362.post-81200361354377008872012-04-25T11:55:37.053-04:002012-04-25T11:55:37.053-04:00I agree that, given the unique characteristics of ...I agree that, given the unique characteristics of the insurance market, the mandate is constitutional (I would argue that that is the limiting factor -- the market will collapse in the absence of the mandate. That was actually the case in the 1930s cases re: preventing farmers from growing too much wheat (or was it producing too much milk?).<br /><br />But my query wasn't about that. It was about public opinion as a limiting factor. That strikes me as a very odd argument, given the founders' concern with a potential tyranny of the majority.<br /><br />PS: I don't understand the relevance of the fact that most people want health insurance, and that under-30s can buy catastrophic insurance. Those are givens. That doesn't change the fact that the mandate transfers wealth from a younger, healthier, and politically less powerful group to an older, less healthy, and politically more powerful group. I happen to think that is OK, in this instance, but it does point out the fallacy of majority rule as a limiting factor.Gordon Danninghttps://www.blogger.com/profile/11934571048515775814noreply@blogger.comtag:blogger.com,1999:blog-8512362.post-56057756383907591982012-04-24T21:01:35.006-04:002012-04-24T21:01:35.006-04:00No one is suggesting that Congress have carte blan...No one is suggesting that Congress have carte blanche: its regulation of commerce remains under well defined constraints. The argument is that *this* mandate is a necessary and proper means to make insurance affordable for all; the next mandate might not be judged necessary or proper. Per the next post, the reason this means is appropriate to this end stems from the unique nature of insurance: you must buy it before you need it -- and the unique nature of *health* insurance: if you don't buy it, someone else pays. And the plaintiffs' contention that an overpriced product is being foisted on the young is a lot of hooey: first of all, the truly young (under 30) can buy catastrophic; and second, the number of Americans who would forego decent health coverage if they could afford it is vanishingly small. Most get it from their employers; anyone under 133% of poverty will get it from Medicaid; anyone who's not affluent, not poor and not getting HC from their employers will have the cost subsidized -- the less income, the more subsidy; and those who really don't want it can pay a modest penalty. No oppression in the equation -- no more than paying SS tax to fund current retirees.Andrew Sprunghttps://www.blogger.com/profile/17601269968798865106noreply@blogger.comtag:blogger.com,1999:blog-8512362.post-82911845298599326022012-04-24T20:23:44.911-04:002012-04-24T20:23:44.911-04:00ASP:
True, some of the other arguments are a bit ...ASP:<br /><br />True, some of the other arguments are a bit better. But, I don't buy the argument that elected bodies will limit themselves -- isn't much of the Constitution premised on the notion that majorities cannot be trusted, and therefore must be limited? Indeed, the individual mandate can be seen as a failure of that supposed limiting principle -- as I believe was mentioned at oral argument, the mandate requires mostly young, healthy persons (who would otherwise not buy insurance) to fund insurance for those with pre-existing conditions, who tend to be older. Given that younger persons are less likely to vote (or, given demographic trends, more likely to be non-citizens) than older folks, can't the mandate be seen as a politically powerful group passing a law that benefits them, with the cost paid by a politically less powerful group? Wasn't that one of the dangers inherent in democracy that much of the Constitution is designed to forestall?Gordon Danninghttps://www.blogger.com/profile/11934571048515775814noreply@blogger.comtag:blogger.com,1999:blog-8512362.post-40823790899496020862012-04-24T10:09:29.124-04:002012-04-24T10:09:29.124-04:00Gordon: I think it's true that the state opt-o...Gordon: I think it's true that the state opt-out is not a sufficient 'limiting principle' in itself. But the arguments were multi-pronged on both sides, and the plaintiffs asserted that the mandate impinged on state as well as individual sovereignty. More to my point: the mandate is hedged an limited in various ways that allow maximum choice both to individuals and states. A broader limiting principle, voiced in the reply brief, by Justice Breyer in the oral arguments, and by Scalia himself in prior cases, is that there is no reason to assume that elected bodies will pile on non-viable and unpopular purchase mandates. The various ways in which the individual mandate is hedged and trimmed in the ACA bears that out.Andrew Sprunghttps://www.blogger.com/profile/17601269968798865106noreply@blogger.comtag:blogger.com,1999:blog-8512362.post-51951942997768512442012-04-24T10:02:31.457-04:002012-04-24T10:02:31.457-04:00I'm not sure that "states can opt out&quo...I'm not sure that "states can opt out" is the type of limiting principle that the justices were talking about. They were talking about the slippery slope; see, eg, Justice Scalia's comment: "And that's what allthis questioning has been about. What -- what is left?If the government can do this, what, what else can it not do?" <br /><br />So, saying that the states can opt out does not seem to me to solve that problem. Suppose Congress passed a law saying that the police can strip search anyone engaged in interstate commerce (ie, everyone in the country). Would it be enough to say, "oh, it's ok; states can opt out"?Gordon Danninghttps://www.blogger.com/profile/11934571048515775814noreply@blogger.com