sinanju: The Shadow (Default)
In response to the claim  that, “The [health care] mandate is in conjunction with laws which regulate how insurance companies treat people with pre-exisiting conditions, and the mandate is necessary to make those regulations effective", commenter Perplexed over on the Volokh Conspiracy website gave what I think is the clearest, most lucid description of exactly what Congress actually did that I've yet read. This is it:

What you are describing is an entitlement program — not a regulation of commerce. I walk up to an insurance company, with whom I have no previous insurance contract, having just been diagnosed with cancer and demand that they pay 80% of my medical bills. They have no COMMMERCIAL obligation to do so, and in fact would be commercially stupid to comply with my request. Health care and health insurance have until now been commercial transactions, which means that people who want the products have to pay for those products, and if they can’t afford those products, they don’t get them. 

But liberals don’t like the fact that health care is provided by commerce — they think it is a right that should be guaranteed to everyone through the government (taxation). But this notion of people having some guaranteed access to health care or health insurance is fundamentally in conflict with the concept of commerce. Commerce is voluntary. Commerce requires a price which regulates supply and demand such that the price of the transaction must be either unaffordable or undesirable to many of those who voluntarily engage in commerce, otherwise there will not be the supply to fulfill the demand. 

So instead of implementing their heath care plan through the General Welfare provision as was done with Social Security and Medicare (which would mean the costs of the program would be easy for the public to assess) Congressional democrats are trying to use the Commerce Clause to simply impose an involuntary exchange of money. The law forces insurers to “insure” persons with preexisting medical conditions (an oxymoron) on the concurrent provision that all persons have to purchase insurance.This is in no sense a regulation of commerce. It is a substitution of commerce with an entitilement program that forces insurers to become state actors, and imposes upon people an obligation to pay the money that funds the entitlement.

One question that arises is that if the Commerce authority is so powerful as to permit Congress to force individuals to pay money to buy a product from another individual, who in turn is required by law to sell it (and again, given the coercive nature of the transaction, the terms “buy” and “sell” lose their real meaning), doesn’t the General Welfare power become superfluous? Congress doesn’t need the authority to tax and spend for the general welfare, they can just pass laws directing individuals to move money around as Congress intends.



sinanju: The Shadow (Default)

August 2017

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