The Socialist Myth

[smjsl]

This was an excellent read. Thanks to all the posters for the informative discussion and the civility.

You are welcome... I just stopped responding to certain remarks to keep it civil... I was itching but figured self-control is better

 

[samclem]

Will somebody fill me in on the parts of the health care reform bill that are likely to face constitutional challenge?

Thanks for your subsequent post on this subject. If you're not "researched out" yet, here's a fairly accessible (i.e. even I could follow it) discussion of the issue of the constitutionality of the legislation. It's from the Heritage Foundation, and they obviously opposed this legislation in general and this provision in particular.

An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented-- not just in scope but in kind--and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.

We'll see how this turns out. I'm hoping the SCOTUS will get to hear a case on this very soon.

 

[Gone4Good]

The Heritage Foundation obviously has an axe to grind on this issue, so it's not surprising that they'd come down with a conclusion against the legislation. Most of the reporting I've seen came down on the other side, although some folks will claim that the media has an axe to grind of their own.

Time will tell but I wouldn't get my hopes up for it to be overturned.

Meanwhile the easiest fix in the world is to assess a health insurance tax on everyone and then give deductions for those people who have insurance. Presto, fixed.

 

[samclem]

Meanwhile the easiest fix in the world is to assess a health insurance tax on everyone and then give deductions for those people who have insurance. Presto, fixed.

I think passage (even through reconciliation) of this new tax would be very unlikely. Impossible after November.

And, of course, the President wouldn't sign it, since it would be a new tax on people earning less than $200K a year. Right?

 

[Gone4Good]

I think passage (even through reconciliation) of this new tax would be very unlikely. Impossible after November.

And, of course, the President wouldn't sign it, since it would be a new tax on people earning less than $200K a year. Right?

I agree new legislation is unlikely but it would probably be forced if the Supreme Court overturns the individual mandate. All that ruling does is allow people to game the insurance market. It doesn't undo the rest of the legislation.

And we all know that the promise not tax people earning less than $200K is toast if he wins a 2nd term . . . but not a minute before.

 

[Gone4Good]

I agree new legislation is unlikely but it would probably be forced if the Supreme Court overturns the individual mandate. All that ruling does is allow people to game the insurance market. It doesn't undo the rest of the legislation.

After thinking about it for a minute, it seems as if pretty much nothing would happen if the individual mandate was overturned . . . at least not right away. It wouldn't even be an issue until 2014. And then it would probably take years for the adverse selection problem to become large enough that people noticed. By that time, health care legislation would be on the books form the better part of a decade or more. Highly unlikely to be undone at that point. Far more likely that the legislation is tweaked to fix problems, like adding an individual mandate, than completely repealed.

Be of good cheer, this thing is here to stay.

 

[samclem]

Be of good cheer, this thing is here to stay.

We'll see. If the SCOTUS doesn't approve the individual mandate, the electorate will get to see the CBO numbers, unrealistic as they were, recalculated without the individual mandate/tax. And the loose threads of this tapestry will continue to ravel. And the premium increases will be going in earnest (what will health insurance cost when you can buy it after the diagnosis/accident? We'll know by then).

1988: Medicare Catastrophic Coverage Act is passed. ( It was more popular than the present "reform" law).
1989: Medicare Catastrophic Coverage Repeal Act is passed.

 

[Gone4Good]

We'll see. If the SCOTUS doesn't approve the individual mandate, the electorate will get to see the CBO numbers, unrealistic as they were, recalculated without the individual mandate/tax. And the loose threads of this tapestry will continue to ravel. And the premium increases will be going in earnest (what will health insurance cost when you can buy it after the diagnosis/accident? We'll know by then).

1988: Medicare Catastrophic Coverage Act is passed. ( It was more popular than the present "reform" law).
1989: Medicare Catastrophic Coverage Repeal Act is passed.

Plot out the time over which it will take for the changes (like impact on premiums) to impact most people. Nothing really happens until 2014. Almost everyone still has insurance through their employer and will for years (decades?) after 2014. Most of those who don't will start getting subsidies that cap premiums at a percentage of income beginning in 2014.

And as far as the individual mandate's impact on premiums, weren't you arguing before that the penalty wasn't large enough to have an impact? So if that is true, repeal won't have an impact.

Whatever happens this will unfold at a glacial pace. Any hope of some kind of quick unraveling isn't in the cards. And as far as repeal next year, that's not going to happen unless the Republicans can muster veto proof majorities in both houses. And over the longer-term, the idea that people are going to line up behind one again allowing insurance companies to deny people coverage doesn't seem very likely.

 

[IndependentlyPoor]

This article seems to sum it up decently: Is health-care reform constitutional? - washingtonpost.com

OK. I read the Heritage Foundation piece as well as the Washington Post piece and had to laugh. They are strikingly similar, even down to the same flawed analogy:

The Heritage Foundation:

Congress could constitutionally require every American to buy a new Chevy Impala every year, or a pay a "tax" equivalent to its blue book value.

The W.P.:

Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another.

A more reasonable analogy might have involved a law requiring every person to buy a car every year, but I don't think there is anything the the health care legislation requiring purchase from a specific company.

Is the Washington Post really reprinting position papers passed to them by political operatives? Nah. They just printed an editorial by the lead author of the Heritage Foundation report without ever mentioning his association with them.

BTW, the Wikipedia article I read was also suspiciously similar (although that could have been partially due to the nature of the subject). Boy would I hate to be that Wikipedia moderator now. Lobbyists and political activists of all stripes must be banging on those articles every day.

I have to admit that I was a bit shocked at the cynicism in conclusion of the Post's editorial

This legislation won't go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

He might as well have said "Man, we'd better kill this thing before it gets out there and becomes popular."

Not content to end there, he concludes by invoking Bush v. Gore. Am I expected to take this seriously? Gimme a break.

 

[Leonidas]

Is the Washington Post really reprinting position papers passed to them by political operatives? Nah. They just printed an editorial by the lead author of the Heritage Foundation report without ever mentioning his association with them.

The author of the WP article, Randy E. Barnett, is also one of the authors of the Heritage Foundation article. Barnett teaches Constitutional Law at Georgetown, previously taught at Boston U Law School, he also was lead counsel in Ashcroft v. Raich / Gonzales v. Raich which is one of the more recent Supreme Court cases on the Commerce Clause. He has written 8 books, all but one or two on Constitutional Law, is a regular contributor to newspapers on Constitutional Law, and very often on the Commerce Clause. I've been reading his articles for a few years at a law blog I frequent. Politically he is a Libertarian.

I offered the article not because I agreed with Barnett, but rather because I thought the couple of paragraphs did a decent job of summarizing the concept behind a legal challenge to the law under the Commerce Clause. Others have put forward possible challenges under the 5th as a "taking", but I think the case law is well established on taxation not being a taking. I do agree with Barnett on identification of the Commerce Clause being the most likely point of any Constitutional review of the new health care law.

There is an article by a law professor in Kansas who also has an interesting take that would seem to support one of the issues behind a Commerce Clause challenge to the health care law. Brief research seems to indicate that she identifies herself as "Left" (and in one venue "Religious Left") as opposed to Liberal, and is very much in favor of government being involved in health care. However, her analysis of state constitutions and the US Constitution seem to indicate that the Federal Government does not have the power that Congress is seeking - not without amending the Constitution.

" [the] U.S. Constitution, in text, purpose, structure, and policy provides little support for a federal health care right"

She liked the Massachusetts health care system, even as a model for a federal system (she wrote her article late last year). However, I think she makes a case for the same thing that others are saying, that this is a state issue and (my interpretation now) the recently passed federal health care legislation oversteps the Constitutional separation between state and federal sovereignty.

Health is central to state governance, whether it is explicitly recognized in the constitution or inextricably intertwined with other state laws and values. Therefore, ardent advocates of health care rights should not be troubled by the absence of constitutional guarantees of health in the U.S. or separate state constitutions. The multiple deficiencies in the country’s health care system to provide essential health care to individuals inevitably will, and already are, receiving attention. Exactly how those concerns will be addressed can only benefit from the views of the public, expressed through their state constitutions.

Emphasis added to highlight.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421504

We have in the past, extended rights beyond what were originally provided for in the Constitution, specifically the 13th, 14th, 15th and 19th Amendments. I think this issue deserves the same attention and Constitutional process as those issues did. Not some frankenstein monstrosity of a bill that nobody read before they voted on it, and the entire process involving passage was a joke involving several hundred clowns in Washington vying for power and votes.

 

[IndependentlyPoor]

I offered the article not because I agreed with Barnett, but rather because I thought the couple of paragraphs did a decent job of summarizing the concept behind a legal challenge to the law under the Commerce Clause.

Point taken. I agree. The paragraphs you quoted were a good summary.

 

[Martha]

I am not going to get into this thread except to make one point. The Post article makes this statement:

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented.

This reflects a misunderstanding of the law. For example, California law allowed noncommercial marijuana that does not cross state lines to be prescribed by doctors for medical purposes. The Supremes found that it was legal for the feds to regulate this noncommercial activity under the commerce clause because marijuana in general is bought and sold in interstate commerce.

http://www.early-retirement.org/forums/f27/marijuana-and-the-supremes-16900.html#post308860


http://www.early-retirement.org/forums/f27/justice-scalia-on-c-span-19769.html#post364726

Note too that it was conservative judges who found that the commerce clause powers extended to this situation, which I even thought was a stretch. The effect on interstate commerce is far less in the medical marijuana case than it is in health care mandate, especially as hospitals emergency rooms are required to treat people in an emergency (also constitutional) without regarding to insurance or ability to pay.

Purely local public businesses cannot chose to deny service because you are black. Also legal under the commerce clause. Denial of service is economic inactivity, not activity.

Even if by some remote stretch of the imagination it wasn't legal under the commerce clause, it still would fit under the broad power to tax and spend for the general welfare.

 

[Westernskies]

..the U.S. is, or is becoming, a socialist state.

nailed it.

 

[Gone4Good]

nailed it.

I particularly like all the supporting evidence. Keep up the good work.

 

[samclem]

I particularly like all the supporting evidence. Keep up the good work.

This was the first sentence in the OP that started this thread (bold added)

Of the many ridiculous hyperbolic claims that pass for truth these days the one expressed most frequently is that the U.S. is, or is becoming, a socialist state.

No supporting evidence, just an assertion that this is the most frequently expressed hyperbolic claim, then points put forward to refute it. It's hard to be a stickler about getting documented support after a start like that.

 

[Gone4Good]

No supporting evidence, just an assertion that this is the most frequently expressed hyperbolic claim, then points put forward to refute it. It's hard to be a stickler about getting documented support after a start like that.

I already supplied a quote from this board that claims we're already a socialist welfare nation. I could look up more, but you'd just ignore them too.

 

[Westernskies]

I already supplied a quote from this board that claims we're already a socialist welfare nation. I could look up more, but you'd just ignore them too.

No, we really like discussing

ridiculous hyperbolic claims that pass for truth these days

wherever they come from.

 

[Gumby]

Ladies and Gentlemen:

Regardless of the flavor of your preferred "ism", please try to be civil and avoid personal attacks.

Thank you.

 

[samclem]

To get back to the main point, an article today by Tony Blankley lists some of the reasons that many Americans are concerned about the direction of things. And it is the direction of things and the obligation to indentured servitude for following generations by current Washington spending, that has folks upset.
In part:

. . .All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies' legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare "deemed" to have been enacted, rather than actually publicly voted on by Congress.

I'd say it's not a backlash against "socialism" per se that we are seeing, it is a reaction to statism and collectivism. Even more fundamentally, it is a concern that we are drifting away from the rule of law as outlined in the Constitution. A thorough national discussion on this topic is long overdue, and I would have thought it would be welcomed by all Americans regardless of their political leanings.

 

[Gone4Good]

. . .All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies' legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare "deemed" to have been enacted, rather than actually publicly voted on by Congress.

Except nearly all of this is either an exaggeration or an outright distortion.

None of our banks or auto companies have been nationalized. U.S. equity ownership doesn't equal nationalization. Moreover the process of liquidating these stakes is taking place faster than expected and is accelerating. Bondholders weren't subordinated to union bosses. Bondholders voted for a plan of reorganization in each and every case. I guess that is like the "dictatorial" process used to pass healthcare (majority vote). Obamacare wasn't deemed to have been passed by the House, the House voted on it.

And I don't recall the same people expressing concern about adherence to the Constitution and the "rule of law" when it came to expansive readings of executive powers in the name of national security. Seems to me this isn't about anything as noble as the "rule of law" as it is unhappiness over the outcome of an election.

 

[FinanceDude]

Except nearly all of this is either an exaggeration or an outright distortion.

How intriguing..........

None of our banks or auto companies have been nationalized. U.S. equity ownership doesn't equal nationalization. Moreover the process of liquidating these stakes is taking place faster than expected and is accelerating. Bondholders weren't subordinated to union bosses. Bondholders voted for a plan of reorganization in each and every case.

What percentage of GM is owned by the UAW?

I guess that is like the "dictatorial" process used to pass healthcare (majority vote). Obamacare wasn't deemed to have been passed by the House, the House voted on it.

Interesting how the "nucleat option" was decried by the same folks who used it blatantly and explicitly when THEY felt it fit their needs......

And I don't recall the same people expressing concern about adherence to the Constitution and the "rule of law" when it came to expansive readings of executive powers in the name of national security.

SO, we should have ignored 9/11 and kept the status quo? Maybe we should have been a little more aware after the FIRST World Trade Center bombing........

 

[harley]

I think passage (even through reconciliation) of this new tax would be very unlikely. Impossible after November.

And, of course, the President wouldn't sign it, since it would be a new tax on people earning less than $200K a year. Right?

I agree new legislation is unlikely but it would probably be forced if the Supreme Court overturns the individual mandate. All that ruling does is allow people to game the insurance market. It doesn't undo the rest of the legislation.

And we all know that the promise not tax people earning less than $200K is toast if he wins a 2nd term . . . but not a minute before.

Not quite. That one didn't last more than a couple of weeks. If It Looks Like a Duck, It's Probably Obama Talking About Taxes - Hit & Run : Reason Magazine

Here's an interesting take on Obama's so-called socialism from the socialist party - Ask the card-carrying socialists: Is Obama one of them? - CNN.com

 

[samclem]

None of our banks or auto companies have been nationalized. U.S. equity ownership doesn't equal nationalization.

How did Rick Wagoner lose his job? Did the government fire this CEO of a private company? How could that happen?

Moreover the process of liquidating these stakes is taking place faster than expected and is accelerating.

Good. But how is this now-established precedent likely to affect the private sector?

Bondholders weren't subordinated to union bosses. Bondholders voted for a plan of reorganization in each and every case.

I'm assuming you know about the government coercion of the larger bondholders (easy when the government regulates the industries of the folks owning the bonds), and that unions with debt junior to the other bondholders were placed ahead of them in the government-brokered settlements.

When the umpires decide to jump into the game and continue to be umpires, we shouldn't be surprised by the result.

People are sick of it, that's all.

 

[Gumby]

YouTube - Porky Pig Cartoon Ending "That's All Folks!"