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:
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
The left has this debate framed as an either or (tax or mandate) so the better answers don't get considered.
The better answer is to stop allowing (through anti-trust laws) for insurance companies to offer only policies that cover things we CAN afford.
In other words - insurance carriers will sell you way too much coverage, or no coverage at all.
Peter - did your parents ever complain about health insurance costs? Likely not. They could buy hospitalization and catastrophic insurance (because those calamities they likely could not pay for out of pocket). Since the risk of those were small, the insurance was cheap, allowing more people to buy it.
Your parents did not insure themselves for things they could pay for, like doctor visits, ace bandages, aspirin, etc. Consequently, doctors had to compete for your businesses for general practice work. That's why they made house calls. Today, we traded that in to wait 2 hours in the waiting room of some doctor we don't know, for no other reason than he takes our HMO.
Edited on March 30, 2012 at 10:13pmDec '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Because taxes go into a general fund which can be used for anything. There is nothing forcing me to use the "free service" provided by government; however a penalty punishes me for not entering into contract with an individual chosen by the government.
Well no crap, that is the whole *expletive deleted* point. Yes the more people get involved in a part of the market the more the principles of scale can be brought to bear, but if you can declare both my participation and my non-participation in a market "interstate commerce" on the basis that my very existence changes the theoretical outputs of the market then there is literally nothing the government can not compel you to do.
If enough people stop buying broccoli its possible the cost of producing broccoli for the rest that still want it could rise to place it out of their reach. You can say that about anything. That is literally the point.
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
You do not need to be a constitutional lawyer to see that the Constitution might treat the taxing/spending power differently than the Commerce Clause. They are different powers given in different clauses of the Constitution to Congress. There is no reason why the powers should be, as the Framers might say, co-terminous. Today, for example we use the taxing and spending powers to provide incentives for activity that everyone -- I would hope -- falls outside direct federal regulation.
A simple example should suffice. The tax code provides incentives for families to have children. There is a tax subsidy for additional children. Hopefully, even Krugman would agree that the federal government cannot use the Commerce Clause power to order families to have -- or not have -- a certain number of children. Though I wonder -- New York Times columnists sometimes seem to have a strange admiration for Chinese central planning of their society and economy.
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Just because the taxing and spending powers have a different nature than the Commerce Clause doesn't mean that they are without limits. And here, the Court has done a poor job of marking out clear restraints on Congress's power to tax and spend. It could return the doctrine back to what it had been until the New Deal, where the Supreme Court had tried to limit the taxing and spending powers to the limits that applied to the Commerce Clause -- but then also tried to limit the Commerce Clause too. While Krugman et al seem to want all of Congress's powers subject to the same limits, that is only because the Commerce Clause today is thought to be broad. They might not have the same view if the Court uses the Obamacare decision to bring the Commerce Clause closer to its pre-New Deal scope.
Dec '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.
The second half of this sentence is the objectionable part. People are forced to buy car insurance if they want to own a car. If you want to stay healthy buy, at the very least, a catastrophic policy and stop smoking and eating Doritos. Healthcare and car ownership are not unalienable rights.
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Diego Sun Devil:
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. · 8 minutes ago
Edited 2 minutes ago
If there is no functional difference between a tax and this mess, then let Congress do it the other way. "But" you respond, "that would be a more difficult sell politically." Probably so. One reason why the Government is limited to certain enumerated powers is to make it difficult, politically as well as functionally, to do stuff.
(Not to hijack this thread, but what about the distinction between broccoli and health care; viz., if I don't buy health insurance, I make it more expensive for my neighbor? In a general-equilibrium sense, that is also true of any good or service with high fixed costs. So does the Krugman extend his basic argument to: The government should also have the power to compel me to buy a Volt, since the fixed cost involved in, say, setting up a network of charging stations, is high.)
May '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
The law is about more than mathematical equivalences. There is a stark moral difference between a taxpaying citizen and an obedient subject.
There is also a practical difference. If the government wants to spend money on something, it has to figure out how to raise the revenue for it and it suffers the cost pressure itself. If the government wants to require everyone else to spend money on something, it has no consideration of the cost imposed on them.
Edited on March 30, 2012 at 10:21pmDec '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Ah, but this represents a burden on the taxpayer. Not the insurance industry. The government's argument-- so helpfully enunciated by the liberals on the Court rather than government council-- is that the mandate is necessary to regulate the insurance market. But the mandate, in practice, is (meant) to relieve the taxpayer.
Newsweek may have suggested that we are all socialists now. But I think the real development is that now we're all lawyers. Yuck.
Dec '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Mark Wilson: The law is not just about bottom line differences
There is also a practical difference. If the government wants to spend money on something, it has to figure out how to raise the revenue for it and it suffers the cost pressure itself.
Based upon the current state of the Union, I would have to take argument with this.
Sep '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Krugman offers two choices. Both are false.
1. People do not buy health insurance when they are sick. They go to doctors, or to the emergency room. Many of those people have compared the cost of health insurance with their expectations of needing to go to the doctor in the next year or two--and decide that they don't need insurance. If they have to go to the doctor, they'll pay the bill.
Those people are being coerced into the market.
2. If/when somebody buys health insurance, they buy a plan. Very few single men buy health insurance plans that provide maternity coverage. Lots of people don't buy plans that provide unlimited psychiatric care. Lots and lots of people don't buy plans that include long-term disability coverage.
But ObamaCare forces each person to buy an extremely expensive package. It was alleged that "you can stay on your plan if you like it"--but if that plan changes in the slightest degree, it must conform to the new rules. Including free birth control, gender-change surgery, etc.
The plan most people want is not the plan Obama requires you to buy.
Mar '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Oops.
Edited on March 30, 2012 at 10:32pmMar '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Mark Levin already answered this on his radio show - it's the same as Mark Belling Fan's answer. And Prof Yoo, too.
So, yes, it's constitutional to tax people for, in effect, Medicare for all.
This is, of course, what Mr Obama really wanted to do - so it's wonderfully ironic that the constitutional scholar chose an unconstitutional route to try to get there indirectly. Did he not see this coming?
He'll probably explain in his third Autobiography, when he is free. · 0 minutes ago
Aug '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Nyadnar17:
Yes the more people get involved in a part of the market the more the principles of scale can be brought to bear, but if you can declare both my participation and my non-participation in a market "interstate commerce" on the basis that my very existence changes the theoretical outputs of the market then there is literally nothing the government can not compel you to do.
If enough people stop buying broccoli its possible the cost of producing broccoli for the rest that still want it could rise to place it out of their reach. You can say that about anything. That is literally the point.
Yes.
I returned to make that same point about broccoli myself. You put it much better than I would have.
Aug '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Mark Wilson
The law is about more than mathematical equivalences.
A point that many who confuse economics with accounting often miss.
May '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
The real difference is federalism, and the lack of control a federally imposed regime has--that's Romney's argument, by the way. So no, I don't see a difference between being forced to buy an insurance or br taxed more. Both practices are equally coercive.
May '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
The correct answer, of course, is to tell the government to mind its own business and stay out of the medical industry. The laws already take care of emergency care. If you don't want non-emergency care, then that's your choice.
Jun '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
They can't turn you away, but they can send you a bill after the fact. The real problem is people who default on payment of that bill.
I would say the way to tackle the problem is a carrot and stick approach. The carrot is some sort of subsidy to help those who are truly poor to afford a catastrophic coverage plan.
The stick is something along the lines of the "deadbeat dads" approach to child support payments, i.e. if you default on a hospital bill, for the rest of your life 50% of your wages will be garnished until the bill is fully repaid with interest. Even if you declare bankruptcy.
How much do catastrophic coverage plans actually cost? Anyone know?
Jan '12
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
There was a time when I thought that I was intelligent, that by reading the 18th-century text, I could laugh away all the flimsy penunbras and emanations that have flickered over the last forty, seventy, or one hundred years. Now I must confess my fundamental paucity; my understanding of the Constitution cannot expand beyond the original. Where, oh where, arise these unnumerated powers of Congress? What sophistries have I failed to comprehend?
May it be that be that in this last week, at least five of the sitting justices might be asking each of themselves some similar questions?
Edited on March 30, 2012 at 11:17pmAug '10
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Joseph Stanko
The stick is something along the lines of the "deadbeat dads" approach to child support payments, i.e. if you default on a hospital bill, for the rest of your life 50% of your wages will be garnished until the bill is fully repaid with interest. Even if you declare bankruptcy.
In order for this to be an acceptable practice, the medical billing process has to become much more transparent that it is at present.
I don't hang around with deadbeats, but most everyone I know has had at least one medical bill go into collection.
In one case, I thought I had paid an ER in full because when the bill from the ER came, I paid all that insurance hadn't covered. Unbeknownst to me, the physician's group serving the ER billed separately (how was I supposed to know that?), and their bill was sent to a woman living in South Africa. She eventually notified me that the bill had gone into collection. I might have never known that if she hadn't taken the trouble to find me.
Edited on March 30, 2012 at 11:23pmAug '11
Re: Calling Mssrs. Epstein, Yoo and Rahe, Or, Paul Krugman Asks a Good Question
Stop right there. He's already poisoned the well with this false premise. You're supposed to buy insurance before you "get sick." That's what insurance is all about. If you wait until you get sick, then you don't buy insurance, you buy medical services instead.
I think one of the main problems we face is educating the left on what insurance is supposed to be about. Insurance is not healthcare. Coverage is not treatment.