Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
In his column in today's New York Times, Paul Krugman frames what I take to be one of the two central questions before the high court. (I'm hoping to get to the second in a post this weekend.) Could the masters of close reasoning around here take a look, then let the rest of us know a good, succinct, and proper
answer?
Here goes:
[W]hen people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain....
There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.
Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional? It’s hard to see why — and it’s not just those of us without legal training who find the distinction strange. Here’s what Charles Fried — who was Ronald Reagan’s solicitor general — said in a recent interview with The Washington Post: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them.”
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Comments:
Jan '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
[W]hen people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate -
Presuming there is no mandate to insure people who are already sick (pre-existing conditions) they wont be able to buy insurance so it wont worsen the risk pool.
Apr '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
It's different in at least one way. We'll have to change the old adage saying "nothing in life is certain except death & taxes," to "nothing in life is certain except death & taxes, and [interstate] commerce."
Jul '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
The first question as to whether the mandate would drop overall costs would theoretically be yes until you factor in that government regulation and all the cronies involved in this fiasco will drive up the cost horrifically in addition to the expensive fluky additives they included.
Krugman's echoing Fried's statement about a mandate vs a tax being irrelevant is just disgusting in its abject ignorance as to the power grab this law attempts.
Jan '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
We gave congress the power to tax and spend, but not the power to force us to purchase products we otherwise would not.
Jun '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
With Medicare, you're not buying something with your name on it. You're buying a system. Just like when you pay taxes for Police or Fire Departments, there's no squad car or fire truck with your name it. If you're lucky, you're just paying as a good citizen, to protect others. I think that's the difference.
Dec '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
He has it backwards. It starts from the assumption that a person can own his neighbor. He is asserting that if one is not in the risk pool, you are denying someone something that is theirs, such as lower costs. One's nonpartication does not worsen the risk pool, it just does not improve it.
Not benefiting is not the same as being denied.
0 =/= -1
Not making better is not the same as making worse.
and so forth.
Edited on March 30, 2012 at 9:44pmSep '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Taxing is an enumerated power, coercing commerce is not.
Aug '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
I agree that taxing and spending is just as intrusive as a mandate, but the question isn't about the mandate being "intrusive".
The question is about whether the individual mandate is constitutional.
I think it's clear that the federal government has the constitutional authority to tax and spend, but does it have the authority to force people to buy a service they don't want to buy?
Mar '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
I don't buy the premise that sick people buying insurance is a primary driver of increased insurance cost.
Dec '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Another rhetorical paraphrasing that illuminates the flaw in Krugman's arguement.
If I have $5, and he wants my $5, and I dont give him my $5, then according to him, I have stolen his $5.
Jan '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Gee ... if only I had wondered about that. Oh wait.
May '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
First off, people don't buy insurance when they get sick. At least they didn't until ObamaCare came along. You simply shouldn't be able to get insurance for a disease that's manifested itself any more than you should be able to buy house insurance on a home that's already burnt down.
(Agent: You want me to sell you an insurance policy on that pile of ashes so you can build a house?
Liberal: That's not a pile of ashes, it's a house with a pre-existing condition!)
The difference between taxing for a government program and ObamaCare is it's third party component and the resulting contract that is not entered into freely. No court has ever found a contract binding where one of the parties were coerced into it.
The reason that they took the mandate course instead of a government single payer or national health service direction is because the labor unions wanted to keep their "Cadillac" plans without paying for them.
Sep '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
I was getting ready to finally be able to leave work early on a friday. Aaagh. I just saw this. As a politically active physician, I am horrified that this is even up for discussion on Ricochet. That is not the way to run a free market. The government and medicaid and medicare are the problem. Giving them one dollar or a zillion dollars will not change a thing. Just because Fried worked for Reagan does not make him Reagan's proxy. Medicare and Medicaid balance their budgets by refusing services and cutting reimbursement. Private insurance companies, not taxpayers are what allows the system to actually function. Medical providers can actually get paid and fill in the shortfall. I say get rid of Medicare and Medicaid, allow competition and low cost policies and subsidize those that cannot afford a policy. Get the government out. Now, I am leaving work angry.
Jun '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
He is starting from the wrong end. His question presupposes that it is a government problem. Being able to pay for healthcare is an individual responsibility.
Edited on March 30, 2012 at 9:48pmMar '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
I think DocJay hit upon something at the end of his comment that I myself have begun to suspect after listening to a lot of different opinions--conservative and liberal--regarding the 3 days of arguments.
If Justice Kennedy--since he is seen to be the deciding factor in this case--looks at that 2500 page document and sees it as a new way to get everybody healthcare, then we as conservatives are screwed.
However, if he looks at that 2500 page document and says to himself, "There is absolutely no way it takes 2500 pages to explain that the Government is going to pay for everyone's healthcare. Thus, this entire case must be about something else other than healthcare." Then, we as conservatives will probably come out on the winning side.
Kennedy needs to come to the conclusion that this is a power grab. If he doesn't, I think we're screwed because I don't think he has the courage to reject a bill that he really believes to be about healthcare, no matter if it restricts freedoms or not.
Aug '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
If the fine for refusing to buy insurance is $2000, then the authors of the bill could have achieved that goal by taxing everyone in America $2000, then offering a $2000 tax credit to anyone who has an insurance policy. But they chose not to go that route, because a tax would have been unpopular. I remember this issue coming up during the debate on the health care plan - taxing vs mandating. Back then, there were some that argued that it should have been structured as a tax precisely because there was a risk that a mandate to buy insurance would be found unconstitutional.
But the Democrats, as usual, went for political expediency above all else, and so it became a mandate. And now they're reaping the rewards of their attempt to hoodwink people. They structured it as a mandate, and therefore it's not a tax. And that opens it up to precisely this kind of constitutional challenge.
Apr '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Per the Left Coast/Right Coast podcast, if they would have just called the penalty a tax or taxed everyone the penalty amount and then issued a refund to those who purchased health insurance, the whole thing would not have been an issue. In that regard, there is little fundamental difference. NOTE: to do this, Obama would have broken his 'no new taxes on < $250,000 earners' promise, but I'm not sure why he cared if this was truly that monumental.
I'm not sure if the mandate will hold up, but if it doesn't, the Dems have only themselves to blame since a mechanism was available to do the exact same thing in a slightly different way.
Edited on March 30, 2012 at 9:59pmRe: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
I disagree with Krugman's premise, i.e., that a single-payer system would be constitutional because Medicaid and Medicare are constitutional. In fact, neither Medicaid nor Medicare, nor Krugman's hypothetical single-payer system is constitutional as a matter of original meaning. Krugman's assertion is built on the Supreme Court's 1937 decision in Helvering v. Davis, holding that Congress's spending power extends to objects beyond the enumerated powers.
Helvering is poppycock. First, there is no "spending power." The clause in question says that Congress can impose taxes for the General Welfare. Although tax revenues will eventually be spent, the General Welfare Clause is not an independent authority to spend tax dollars on anything. James Madison was very clear: the term "General Welfare" was a shorthand for the enumerated powers that follow immediately after (separated only by a semi-colon). The Helvering case has led to a bizarre doctrine that Congress is limited to its enumerated powers - unless it wants to spend money, in which case it can do anything. This is so obviously contrary to the founding principles of limited government that only a Living Constitution philosophy could permit it.
Aug '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
He is using logical sleight of hand here, acknowledging that there are "at least two ways to address this reality" and then describing only two, when a third way should be obvious to anyone (even a snake) with a rudimentary understanding of insurance:
Insurance buyers with pre-existing conditions pay more into the pool (to cover their greater risk), get less out of the pool (because they're uninsurable for certain conditions), or some combination of both. In the extreme case, they're totally uninsurable.
We park on streets narrow enough that passing cars routinely whack off people's sideview mirrors. It's our auto-insurance's business to charge us accordingly.
Edited on March 31, 2012 at 12:04amJun '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
The "problem" is that hospitals can't just turn away people who have no money and no insurance. Not like an auto body shop can. The solution may be to provide a minimal medical savings account for everybody, that could easily pay for a catastrophic coverage plan, and then if you want more, and most people would want more, you pay extra and get private medical insurance that could cross state borders, was highly adjustable, and highly competitive.