ObamaCare unconstitutional only in Ayn Rand’s world
NOTE: This repeats much of an earlier post. It is posted here as the electronic version of today’s AJC column.
Provisions of the federal Affordable Care Act, also known as ObamaCare, “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States,” acting solicitor general Neal Katyal told the 11th Circuit Court of Appeals in Atlanta Wednesday.
Conversely, attorney Paul Clement, representing Georgia and 25 other states, framed the issue of mandated purchase of health insurance as an issue of liberty.
“Can the federal government compel an individual to take part in commercial activity in order to better regulate that individual?” Clement asked the judges.
The three-judge panel — Chief Judge Joel Dubina, initially appointed by Ronald Reagan to the judiciary and nominated to the appellate court by George H. W. Bush; Judge Frank Hull, appointed by Bill Clinton; and Judge Stanley Marcus, appointed to the judiciary by Reagan but nominated to the appellate court by Clinton — peppered both sides with questions of their own in a fast-paced session that lasted well beyond the scheduled two hours.
Marcus, for example, asked Katyal whether any legal precedent “actually suggests that Congress can compel a private party to buy a private product on the open market, if they’re not disposed to do so.”
Katyal tried to reframe the question. The real issue facing Congress was what to do about the millions of citizens who could not or did not buy health insurance, he told Marcus. Almost every one of those citizens would need health care eventually, and because they could not legally be turned away by hospitals or doctors, the cost of their uninsured treatment would have to be paid by someone else.
Such costs unfairly added an estimated $1,000 to the annual cost of a health-insurance policy, Katyal said. Under the interstate commerce clause of the Constitution, he argued, the federal government has the right to intervene to prevent that cost shift.
Clement countered that sitting at home being uninsured did not constitute economic activity. But under questioning, he conceded that when an uninsured person with a gunshot wound or difficult pregnancy shows up in the emergency room, the government did have the right at that moment to force the person to buy health insurance. An uninsured patient makes himself an active participant in interstate commerce and thus subject to regulation only when he seeks treatment, he said.
Hull expressed doubt, noting that 20 million uninsured people a year receive uncompensated medical care that other people have to cover. Is that not an ongoing economic activity and thus subject to the commerce clause, she asked.
Katyal certainly thought so. “Their solution is to ban the uninsured from the hospitals and leave bleeding victims, trauma victims and pregnant women at the door,” he said of those opposing the individual mandate.
The judges also spent a good deal of time on the issue of Medicaid coercion. Under the law, states are required to extend Medicaid coverage to everyone with an income of up to 133 percent of the poverty level, with the federal government picking up almost all the tab. (The current eligibility ceiling is 100 percent of the poverty line).
If a state refuses to raise eligibility limits, the law authorizes the federal government to strip it of all Medicaid funding. Marcus in particular seemed concerned that such a provision was an unconstitutional degree of coercion of the states by the federal government.
If forced to guess from their questions and statements, I’d say that Marcus and Hull may accept that the individual mandate regulates interstate commerce and is thus constitutional. Dubina was more difficult to read on that question.
I’d also guess that Marcus and perhaps Dubina are open to ruling that the Medicaid provision constitutes illegal coercion and is thus unconstitutional. Hull remained largely silent on that issue.
In remarks to the press afterward, Clement and Georgia Attorney General Sam Olens both seemed encouraged by the attention paid to the Medicaid issue. Both also did a bit of lobbying, suggesting that this particular case would be better suited to consideration by the Supreme Court than court challenges filed in other circuits because it involves a challenge by 26 states and raises a broader range of issues.
“I doubt this will be the last time you argue this case,” Dubina noted as he thanked attorneys for their work. “The next time will be in Washington.”
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© 2012 The Atlanta Journal-Constitution
34 comments Add your comment
@@
June 10th, 2011
8:02 am
Did everyone get lost following jay’s detour to all things Gingrich?
To SoCo and all the virtual strummers out there.
Maybe it’s just me.
Google’s guitar was a huge hit. Did any of the guys put “theirs” on YouTube?
Peadawg
June 10th, 2011
8:08 am
But we have to have car insurance!
But we have to have child safety seats!
Just thought I’d get those two lame arguments out of the way……
Andy
June 10th, 2011
8:20 am
Car insurance is not mandatory as no one is forced to drive a car. The same goes for baby-seats. Don’t drive a car and you won’t need car insurance or a baby-seat.
Obamacare is mandatory.
Jonathan
June 10th, 2011
8:22 am
Very nice arguments yesterday, fantastic food for the mind! I’ve always been a little troubled by how far the Commerce Clause has been stretched but this seems to be the perfect situation for it. I haven’t bought health insurance for 11 years because the cost shift is so out of control (never been to hospital, always pay out-of-pocket for services). If doctors HAVE to treat a patient, then it makes sense that everyone should be paying. All the doctors in my life don’t like the social nature of the solution but agree that it’s imminent and the best approach because medicine is different from other markets. You have no bargaining power when you’re sick….
Granny Godzilla
June 10th, 2011
8:22 am
“Two novels can change a bookish fourteen-year old’s life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other involves orcs.”
When my mother, a very well read woman, saw me the first time I read Atlas Shrugged she called Ms. Rand the “anti-Christ” but felt I should form my own conclusion.
Being a teen at the time, I wanted to argue with my mom about everything….but when I read it I realized she wasn’t too far off the mark.
In the end even Ayn Rand herself backed away from the priciples of her manifesto….
A supporter of the objectivist collective cannot call themselves a Christian and not be either ignorant or a liar.
(posted earlier at Ms. Tuckers)
Granny Godzilla
June 10th, 2011
8:24 am
Why is a mandate (either state or federal) acceptable for a selected subset of Americans but not the entire population?
Jonathan
June 10th, 2011
8:24 am
Andy, shut up and see Peadawg’s comment. Going to the hospital is “not mandatory” but I’m pretty sure if you break your leg and the bone is sticking out, you’re going to go to the hospital…
Jay
June 10th, 2011
8:25 am
“Car insurance is not mandatory as no one is forced to drive a car. The same goes for baby-seats. Don’t drive a car and you won’t need car insurance or a baby-seat.”
So health insurance should not be mandatory as no one is forced to seek health care. Oh, except for the fact that they almost always ARE forced to seek health care, and when they do the rest of us have to pay for them.
Ask Ayn Rand.
Granny Godzilla
June 10th, 2011
8:33 am
Oh and it’s probably unconsitutional in Ayn Rand’s world until you need it…..
As exemplified by Ms. Rand herself in the last years of her life when she made use of both Social Security and Medicare.
Dabir Dalton
June 10th, 2011
8:41 am
With the inconvenience and out right lack of public transportation {light rail} owning a car is indeed mandatory for most individuals and families. Hence, auto insurance is indeed mandatory and it’s being forced on the general populace by the government {at the request of and on behalf of the Insurance industry} is a clear and present violation of stated conservative principles. Though not the conservative goal of giving away someone else’s money to a commercial company in exchange for campaign contributions.
Mighy Righty
June 10th, 2011
9:21 am
I will let the Supreme Court decide what is Constitutional. I frankly doubt Jay and/or Obama have a clue as to the Constitutionality of anything.
St Simons - we're on Island time
June 10th, 2011
9:22 am
The way to save health care is to make Medicare available to All.
This will save Medicare, too.
Everybody knows it.
The way to save SS with the stroke of a pen – FICA tax past 90K.
Everybody knows it.
And the wingnuts are stuck reading dimestore fiction from the 1920’s
I’m sure it is visionary – to them.
GScott
June 10th, 2011
9:22 am
“But you will take Social Security when you retire!”
Only because I am forced to pay around $700-800 a month into it now. If I could opt out I would. I wouldn’t even expect any of the thousands and thousands I have already paid into back. Just let me better secure my own future.
As far as ObamaCare is concerned I shouldn’t be forced to join because you like the idea of unversal healthcare. Who doesn’t think this will turn into an absolute mess.
“But the free market has failed!”
If I had a dollar for everytime the free market is blamed for what is caused by government meddling I would be a fat filmmaker with a baseball cap.
Mighy Righty
June 10th, 2011
9:27 am
Jay
June 10th, 2011
8:25 am
“Car insurance is not mandatory as no one is forced to drive a car. The same goes for baby-seats. Don’t drive a car and you won’t need car insurance or a baby-seat.”
So health insurance should not be mandatory as no one is forced to seek health care. Oh, except for the fact that they almost always ARE forced to seek health care, and when they do the rest of us have to pay for them.
Ask Ayn Rand
I’ll ask Jay. Just who do you think is going to pay for Obamacare? The illegal immigrants, the uninsured, the unemployed, who, Jay, who?
St Simons - we're on Island time
June 10th, 2011
9:34 am
Ayn Rand – Soc Sec. & Medicare recipient – The End.
captguitarman
June 10th, 2011
9:34 am
The day the case was argued before the appellate court, I saw two cable news reports that, as Jay has done, reviewed the arguments presented by the attorneys for both sides. In one interview, with the attorney general of Florida, there was some discussion about how the government’s lawyers alluded to the mandatory particiipation requirement as being a “tax” and therefore not unconstitutional. As every one may recall, the Obama administration and the Dems in the House took great pains to ensure that Obamacare could not be classified as just another entitlement “tax” on all Americans. The TV reports also noted that one of the judges mentioned that there was nothing in the legislation that in way implied, alluded, identified, etc. Obamacare as tax legislation. I have seen no reporting of this discussion in the AJC. So, did that discourse really happen or did Florida’s attorney general dream it, or are Dem/Lib reporters carefully not mentioning the awful possibility? I, for one, believe that if the government gets it’s back up against the wall trying to get the courts to allow a new federal power that has never existed in the history of our nation (and which will essentially gut the “limited powers” framework of the Constitution), their last refuge will be to just start calling it a tax – although that may not be so easy since the legislation did not create a tax, supposedly.
Mighy Righty
June 10th, 2011
9:44 am
OBAMACARE ONLY CONSTITUTIONAL IN JAY”S WORLD
Granny Godzilla
June 10th, 2011
9:44 am
Mighty Righty
WHo’s going to pay for ObamaCare?
You and Me.
The same folks who are paying for the system now only more efficiently.
(Of course I make the assumption that you do pay YOUR taxes now like I do)
Heywood Jublome
June 10th, 2011
10:08 am
Ayn Rand sucks!
Mighy Righty
June 10th, 2011
10:19 am
Things are going from bad to worse for the poor Bamster.
COLUMBUS, Ohio — The owners of an Ohio restaurant touted last week by President Barack Obama as an indirect beneficiary of the government’s Chrysler bailout said Thursday that tough times are putting them out of business.
Mighy Righty
June 10th, 2011
10:23 am
Granny Godzilla
June 10th, 2011
9:44 am
Mighty Righty
WHo’s going to pay for ObamaCare?
You and Me.
The same folks who are paying for the system now only more efficiently.
(Of course I make the assumption that you do pay YOUR taxes now like I do)
As Jay points out in his piece, we do pay for “Emergency Room” visits. Under ObumblerCare we will pay for their headaches as well. Wake Up!
Mighy Righty
June 10th, 2011
10:27 am
Heywood Jublome
June 10th, 2011
10:08 am
Ayn Rand sucks!
I know you may not know who she was and may not have read anything she wrote, so it may come as a surprise to you but she is deceased.
Peadawg
June 10th, 2011
10:56 am
“Why is a mandate (either state or federal) acceptable for a selected subset of Americans but not the entire population?”
B/c you have a choice whether or not to buy a car or have a kid. Under this new law, you have no choice except to buy health insurance or pay a fine. Is it that hard for you to see the difference?
Mr Right
June 10th, 2011
11:04 am
Don’t know who Ayn Rand is but I kind of get the feeling I would believe him/her before I would Jay !!
HUM
June 10th, 2011
3:56 pm
The car argument is good, you do have a choice to drive or not but is seeing a doctor really a choice.
This plan will make medical more affordable for the work place. Its also supposed to stop or slow down emergency room visit, that cost huge. Health care in the US cost like 4 times as much as anywhere else in the world. I have no idea what it will really do. I just heard congress talking about it on CSPAN.
JoshT
June 10th, 2011
4:54 pm
You don’t HAVE to buy healthcare. No one does. You can show up to the emergency room or any doctors office, receive services and get a bill. Then you pay the bill.
Doctors don’t HAVE to see you. If they think you can’t pay they can turn you away. They choose not to, because of the oaths they took to become doctors.
Therefore I shouldn’t HAVE to buy insurance. Or I should have the right to buy insurance when I choose to.
natedog101
June 10th, 2011
5:31 pm
ayn rand took the benefits she paid into her entire life, the argument is that you could do it yourself better than government can, not that you should ignore what has been taken from you by force. try to see past your hand. the problem with healthcare has already been named in this thread….doctors dont get to choose who they serve, how they serve, or how much they charge…thats the problem. pointing guns at people forcing them to act on the brothers keeper principle has never solved anything….for the people that have a hard time making connections, they used to point swords, and they(governments) have been doing it a long time. just because someone is smart enough to opperate on you doesnt mean you can get government to point guns and force him. notice the cowardness of that approach, you wont point the guns yourself, no its easier to claim self-righteousness if you vote for someone to do it for you. liberty means its up to who provides the service to make the decisions…not that you get it for free.
David Price
June 10th, 2011
7:06 pm
As exemplified by Ms. Rand herself in the last years of her life when she made use of both Social Security and Medicare.
Ayn Rand was forced to pay into social security and medicare her entire life. How is hipocritical for her to take money that was rightfully hers in the first place. Why is liberals never seem to get that the government does create wealth, it confiscates it.
Richard Stands
June 10th, 2011
11:13 pm
“You have no bargaining power when you’re sick”
You have no bargaining power when you’re hungry either, yet government is not required to provision food. And no one starves in America.
Vinny
June 11th, 2011
1:53 am
Obamacare, much like Bookman’s editorials, is pure crap………
Rob Quinn
June 11th, 2011
6:41 pm
The Ayn Rand Institute blogged about this: http://blog.aynrandcenter.org/the-constitution-of-ayn-rand/
Dana Hall
June 13th, 2011
1:19 am
It would seem that to possess a natural instinctive wariness of any statement or action that even remotely touches on the whole “for your own good” theme is a generational attribute. Evolution takes place in small unexpected spurts spread over immense periods of time. The expectation of “someone” looking out for those who can’t or won’t do it for themselves seems to have shifted from being an unrealistic role of government to the reason for its continued existence. Run, run now.
Deco
June 13th, 2011
3:03 am
To all comparing this to car insurance:
The government owns the roads, and they make the rules for how you use them. Their rules are that you must have car insurance in order to use their roads. The government is attempting to make the rules for how you use your body, so does the government own your body? They like to act as if they do.
Christian
June 15th, 2011
7:24 am
I own a car without car insurance! I just don’t use it on government roads, I use it on private tracks.