Comments rejoined

I thought about replying to comments to the preceding post with my own, but upon reflection, I thought they deserved a subsequent post.
Regarding the President’s criticism of the Court (as well as his improvident weighing in on other issues) I wish he wouldn’t. Whether it hurts or helps him politically, I don’t know, but, for better or for worse, he is my President.
I have no problem with criticism of any branch of the government. The Supreme Court has gotten it very wrong in a number of instances, Dred Scott, Plessy v. Ferguson, Wickard v. Filburn are some examples. It has become more politicized over the past half-century or so because it has taken up matters and made some rulings counter to the sense of right and wrong and common sense for, if not a majority, a significant minority, of the populace.
The point about Justice Thomas’ alleged conflict of interest is useless, especially since the even more serious question of conflict of Justice Kagan’s possible conflict goes unmentioned. No big deal; if they vote according to their perceived ideologies, they cancel each other out anyway. Further comment in this regard would be meaningless and a waste of time.
The issue of the individual mandate in ObamaCare would not be couched in “sharing the responsibility” because it is ludicrous to think that a Republican majority would have passed it or a Republican President (even McCain) would have signed such a bill. Romney supported it at the state level when he was governor of Massachusetts. States have general police powers that the Constitution does not give to Congress. Massachusetts can do what it wants with regard to the welfare of its citizens; Texas should not have to do the same thing.
Insofar as the provenance of the individual mandate from such think tanks like the Heritage Foundation and the Cato Institute is concerned, think tanks are supposed to weigh alternatives, sometimes get it wrong, and make corrections. I tend to form my ideas fro many sources, many of whose points of which I tend to disagree with. A Constitutional analysis of the individual mandate does not depend upon whose idea it was or wasn’t, so I have not particularly cared who thought it up. It is merely an ad hominem (or one of the related fallacies). Nevertheless, my curiosity was piqued because I know neither Heritage nor Cato support the mandate today. I appreciate many leads to discovering sources, and the link to is helpful. I discovered the following:
Stuart Butler, a Heritage Foundation fellow, explains his part in the Foundation’s study in the 1990s:
“Is the individual mandate at the heart of ‘ObamaCare’ a conservative idea? Is it constitutional? And was it invented at The Heritage Foundation? In a word, no.
* * *
“The confusion arises from the fact that 20 years ago, I held the view that as a technical matter, some form of requirement to purchase insurance was needed in a near-universal insurance market to avoid massive instability through “adverse selection” (insurers avoiding bad risks and healthy people declining coverage). At that time, President Clinton was proposing a universal health care plan, and Heritage and I devised a viable alternative.
* * *
” . . . the version of the health insurance mandate Heritage and I supported in the 1990s had three critical features. First, it was not primarily intended to push people to obtain protection for their own good, but to protect others. Like auto damage liability insurance required in most states, our requirement focused on “catastrophic” costs — so hospitals and taxpayers would not have to foot the bill for the expensive illness or accident of someone who did not buy insurance.
“Second, we sought to induce people to buy coverage primarily through the carrot of a generous health credit or voucher, financed in part by a fundamental reform of the tax treatment of health coverage, rather than by a stick.
“And third, in the legislation we helped craft that ultimately became a preferred alternative to ClintonCare, the “mandate” was actually the loss of certain tax breaks for those not choosing to buy coverage, not a legal requirement.
* * *
“Moreover, I agree with my legal colleagues at Heritage that today’s version of a mandate exceeds the constitutional powers granted to the federal government. Forcing those Americans not in the insurance market to purchase comprehensive insurance for themselves goes beyond even the most expansive precedents of the courts.
“And there’s another thing. Changing one’s mind about the best policy to pursue — but not one’s principles — is part of being a researcher at a major think tank such as Heritage or the Brookings Institution. Serious professional analysts actually take part in a continuous bipartisan and collegial discussion about major policy questions. We read each other’s research. We look at the facts. We talk through ideas with those who agree or disagree with us. And we change our policy views over time based on new facts, new research or good counter arguments.
“Thanks to this good process, I’ve altered my views on many things. The individual mandate in health care is one of them.”
As Mahatma Gandhi once said (paraphrased): What I say today is inconsistent with what I said yesterday because I’ve learned something since then. Good advice to us all.
See Butler’s entire article at this link:
Regarding the Cato Institute’s position when the Clinton proposals were being considered, here is an excerpt from Policy Analysis No. 210: Nickles-Stearns Is Not the Market Choice for HealthCare Reform (June 13, 19940 by Tom Miller
“Executive Summary”
“The Consumer Choice Health Security Act, of which Sen. Don Nickles (R-Okla.) and Rep. Cliff Stearns (R-Fla.) are primary sponsors, is one of the leading proposals for health care reform. Unfortunately, it sets contradictory objectives: universal coverage and increased consumer choice, individual responsibility, and competition in health insurance markets. Absent a major overhaul, it will neither ensure that health care markets remain private and voluntary nor make them more competitive, efficient, and responsive to consumers’ wishes.
“The primary virtue of Nickles-Stearns is that it avoids the worst features of the Clinton administration’s proposed Health Security Act. Nickles-Stearns would make health insurance more portable, avoid structural disruptions in coverage, and encourage individuals to choose health insurance in a more cost-conscious manner.
“However, the legislation (as introduced last November) contains a number of serious flaws. It endorses the concept of compulsory universal insurance coverage and imposes a standardized ‘minimum’ package of health insurance benefits. Its cost-sharing requirements would undercut the appeal of Medical Savings Accounts. Its efforts to eliminate risk selection in insurance markets are both futile and counter-productive. It provides inadequate incentives for restraining health care costs and hampers the use of more effective devices to do so.
“By failing to provide a clear alternative based on market principles, Nickles-Stearns blurs opposition to Clinton-style health care legislation. By focusing the political debate on the wrong issues, it opens the door to extensive political interference in private health care decisions.”
Hardly an endorsement of the individual mandate as it is in ObamaCare.

The entire article is at

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By bobreagan13

My day job is assisting individuals and small businesses as a lawyer. I taught real estate law and American history in the Dallas County Community College system. I have owned and operated private security firms and was a police officer and criminal investigator for the Dallas Police Department.

I am interested in history and historical research, music, cycling, and British mysteries and police dramas.

I welcome comments, positive, negative, or neutral, if they are respectful.

2 replies on “Comments rejoined”

Thanks for the response. I still say since EMTALA forces hospitals to provide care to anyone, it essentially puts everyone “in the market”. So I think the first step should be to repeal EMTALA and allow hospitals to deny coverage if they choose. This in theory would lower costs and then we'd really have “liberty” or whatever.
The whole broccoli or cell phone comparison is insane – my state requires me to have car insurance if I drive a car, but at no point would they require me to drive a Ford. It's a total non sequitur and the reason people have generally lost faith in the courts being objective.

Thank you for your continued interest. The EMTALA is one of those laws that attaches “strings” to benefits provided by the various federally funded programs. It only applies to “participating hospitals” but since nearly every hospital accepts payment from federal sources of some kind it is nearly universal. The only hospitals I am aware of that do not come under the EMTALA or other federal mandates are the Shiners’ and Scottish Rite funded hospitals (although I understand that the Scottish Rite is or will be at some point accepting Medicaid or other similar payments). The power to spend with strings attached when there is a theoretical unlimited taxing and borrowing power is one of the more insidious aspects of the system of governance we have at the national level. While EMTALA only applies to emergency medical care, in the absence of adequate triage, much non-emergency treatment is provided anyway. So I won’t quarrel with your assertion that the statute forces hospitals to provide care for anyone. As a practical matter, though, a condition that is non-emergency will require hours and hours and maybe a day or so for a hospital like Parkland to get around to caring for, depending on when one presents. Few of us who can pay, even if we don’t have an insurance plan and have to dip into savings or other resources, will tolerate such a wait. As far as the cost of emergency versus non-emergency care is concerned, at lot of that is accounting smoke and mirrors. Emergency cost centers are easier to get approval for reimbursement from governing bodies and boards. If an expense can be charged to an emergency department account by any stretch of creative accounting, it will be. Repeal or reform of the EMTALA would be on my agenda, but I would not be opposed to a less complicated and more tailored similar measure at the state level to prevent abuses.

The primary reason for the high cost of medical services is that we have become used to third parties footing the bill at the point of service. Two surgical procedures which are subject to the marketplace are Lasik and cosmetic surgery. They are among those that have the lowest cost for that reason.

Regarding the comment that the state requires you to have insurance is off the point. The state does not actually require you to have insurance, but to show financial responsibility up to a minimum in the event you cause injury or damage to someone else through the negligent use of your vehicle. Liability insurance is the most cost efficient way for most people to do that. You are not required to have insurance for damage or theft unless required by a purchase money lender – a matter of contract. Why do you think that state would not at some point require you to drive a Ford? The broccoli or cell phone comparison only seems insane now because it is a frog on a pot that is grateful when the cold water warms up, but doesn’t notice that it’s being boiled until too late.

One difficulty you and I, who are mostly functional, upper middle class folks, have is that we deal with mostly sensible people on a day to day basis, and assume that our leaders will do the same. That they do not is evident in a 2700 page statute, which gives bureaucrats who are constantly lobbied by special interests the authority and incentive to write tens of thousand more pages of regulations that no one person can possibly understand or foresee the downstream ramifications of. The court system was envisioned by drafters of the Constitution to provide some check on this. Positing what seems at first glance ridiculous scenarios, but are really logical extensions, is one way of doing this.

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