Antonin Scalia observes in court that the government cannot compel a citizen to purchase broccoli, and the government’s lawyers are Struck Dumb. They clearly do not spend time in my local pub. Every week some bonehead appears there with the “broccoli” canard. And there is a simple answer to that stupid assertion:
The government can bomb Pakistan with drones; the government can declare one man the property of another; the government can intern Japanese citizens; the government can declare a corporation a citizen; the government can tax your income at 99 cents on the dollar; the government can make it OK to shoot unarmed strangers in your neighborhood; the government can declare who is President without regard to the popular vote or to the Constitution.
Yes, Antonin. The government can make you buy broccoli.
I practice law in the trenches with ordinary people for clients. Ask them what the government can make you do. You have to be willfully blind to think our government lacks the power to make you buy broccoli. Willful blindness can, of course, be useful to a Supreme Court justice.
This is how John Locke describes government: Government is the power of coercion, up to death, to compel citizens to act for the common good (2nd Treatise of Civil Government, §3). Your “freedom” is the freedom to elect the government that coerces you—a government for the people or a government for the privileged. That is the beginning and end of your freedom, Judge Scalia.
Gov’t does and passes many things that it’s not allowed to do under the Constitution. Does that mean when a law is challenged that the SCOTUS should simply throw up its collective hands and say “whatever”?
This article raises no valid legal points whatsoever. Scalia’s hypothetical is on point because it would be the same type of individual purchasing mandate under the same asserted Constitutional authority – the Commerce Clause. The author’s examples are not on point because they were conducted under different asserted Constitutional authorities, at least one (being property of another) is unconstitutional, and the Presidential election example (“without regard to the… Constitution”) is a political characterization, not fact.
The Lockean view of government is not the limited authority conferred to the United States government by the Constitution and its people. It is not relevant to any legal case for or against the Affordable Care Act. The proper role of the Supreme Court is to decide cases on whether or not laws are Constitutional, which is what it is doing.
I don’t know which is more shocking – that the author of this article is a practicing attorney or a director in RI government. His arguments are totally irrelevant to anything, except perhaps the drunken bar discourse he initially mentions. These arguments would be rightfully dismissed in any court of law.
I have to agree with above comments, I see no point to this post (perhaps failed Aptil fools humor??) as Scalia’s point should indeed concern everyone about the limits of gvernment power. While sometimes we do need to mutually agree on some level of coercion (thru elections, Congress etc) to solve some problems for which freedom leads to ruin for all (as explained in essay “Tragedy of the Commons” – which is why we agree to coerce stopping at red lights, or a more appropriate example, o tcoercing fishermen to limit their catch or else the fisheries would be ruined for all) I am troubled by the constitutional issues on the health care law. If overturned, I hope we will consider a single-payer system similar to most of the civilized world. To allow just a free market as much of the GOP advocates, even if some emergency care is provided, that would doom many to totally inadequate medical care. Talk about death panels!!
So, if it is ok to coerce fishermen to limit their catch for the greater good, why is it not ok to require all who use our limited health care resources to contribute to a system that ensures that everyone can get adequate and affordable health care? (As an aside – why can’t fishermen be paid not to fish, like farmers are paid not to plant certain crops as a ‘price support’ mechanism? Just thinking)
The broccoli argument is a straw man – nobody is seriously considering anything remotely like requiring everyone to eat (or buy) healthy foods, or to stop eating unhealthy foods. If the Congress determined that it was essential for adequate regulation of interstate commerce that everyone own a mobile phone to allow instant communication of emergency notices nationwide, how does the Constitution prohibit that? If Congress determines that everyone must own and maintain a working firearm for self-defense and for use as part of the militia, would that be unconstitutional?
These are political questions, not questions of constitutional law. The commerce clause is worded very generally and grants very broad authority to Congress to enact laws necessary to adequately ensure that such commerce – including provision of health care – operates smoothly and fairly and for the benefit of all the people. This is part of the preamble’s mandate that government “promote the general welfare” – or are we to assume that those words mean nothing?
When the country needed a strong military to fight in the world wars, the federal government coerced all able-bodied males to register for the draft. They weren’t required to buy something, but they were required to contribute their bodies, their services and potentially their lives for the greater good. At the same time, the federal government instituted rationing of essential materials – limiting or prohibiting people from buying commodities – also for the greater good.
A single-payer system would accomplish the stated goals of the ACA far better than what was passed, but the Republican Party steadfastly refused even to consider that option. The insurance mandate was originally proposed BY the Republicans – namely, President Nixon. (www.mcclatchydc.com/2007/11/28/22163/democrats-health-plans-echo-nixons.html)
The point of Mr. Cosper’s article, I think, is to point out the fallacy of the ‘broccoli argument’ as well as the obvious (but often forgotten) coercive nature of all governmental powers.
These are much better arguments than the original article, which didn’t contain much of a real argument at all. Some of your points are better than others though.
Your argument that health care resources are “limited” is kind of silly, because by that metric all resources and services are limited in an economic sense. The real problem with over-fishing isn’t that fish supplies are “limited,” it’s that the populations need time to recover and can easily be fished to extinction. The parallels to health care really aren’t there.
Scalia’s broccoli hypothetical isn’t a straw man at all. A straw man argument is when you are misrepresenting another person’s argument in order to attack it more easily. Scalia never asserted that a health food mandate was being pushed by the Administration. His broccoli example is a legitimate and on-point hypothetical to tease out what the limits on Congressionally mandated purchases should be.
Your question “How does the Constitution prohibit that?” is backwards. The Constitution grants limited powers to the Federal government, and all other powers are retained by the States and the People. So the real question is “Does anything in the Constitution permit this?” I think the answer is no. The Administration argues yes. Both are legitimate arguments on which reasonable minds can differ.
This is not in any way a “political question.” That has a more specific meaning in the law, and usually (but not always) it has to do with the interaction between the branches or affairs that are internal to a branch of government. Determining the Constitutionality of a law passed by Congress is in no way a “political question.” It is within the proper role of the Court to decide this case, and has been true for two centuries of jurisprudence.
The preamble to the Constitution is not binding and does not confer any specific powers to Congress, so the “general welfare” language in it is not relevant to the case. There is a separate “General Welfare” clause in the Constitution, but that has to do with taxing and spending. This case involves neither, which the Administration has already acknowledged.
I disagree that the Commerce Clause is carefully worded. I don’t think the framers of the Constitution foresaw anything near what it would later be interpreted as permitting – certainly not a general police power, which is close to what it is in effect now. The early cases were about ferries that traveled between states and limited things of that nature.
The military draft argument is a decent analogy and probably your best argument. I’d never argue in favor of a military draft or its Constitutionality, but there are certainly philosophical parallels there. I worry about it being used as a blanket justification.
I’ll go out on a limb and suggest that a lawyer working for state as a legal advocate for the mentally ill doesn’t have a clue how to make arguments before the US Supreme Court. You don’t think the administration beat this case to death before it went before the court? Sometimes it’s hard to admit when there is no argument. Their choices were to agree with Scalia or be ‘Struck Dumb’ as you so eloquently put it. The former would subject them to the wrath of their boss. The latter must have been more palatable.
RightToWork: I appreciate your points, but you missed on a couple of them
Health care resources are limited – there is a definite limit to the number of doctors, nurses and other personnel who can provide care, as there is to the amount of medications, time available for use of diagnostic machines and so on. Some of these resources (maybe all of them) are replaced as or after they are ‘used’ but they are still limited. These resources are also essential to the well being of the people of the US.
Perhaps the term ‘straw man’ was inapplicable, but I still believe that Scalia’s argument-question about what would stop the government from mandating purchase of broccoli is a fallacy. Nobody is making a proposal remotely similar to that, and in fact the mandated purchase of health insurance to preserve limited health care resources could be seen as exactly the opposite of requiring the purchase of a different limited resource. In any event such a proposal would be politically impossible, so it becomes a non-issue. The Justice’s hyperbolic analogy (?) supports my point that this is more of a political question than a Constitutional one.
The SCOTUS is clearly deciding the Constitutionality of the ACA. I understand that and certainly agree that doing so is the province of the Court. My point about this being a political question is based on my view that this is clearly within the power of Congress within the commerce clause as well as the general welfare clause and the necessary and proper clause, all within Article 1, Section 8 of the Constitution. How can it be argued rationally that the ACA is not within the power of Congress to “provide for … the general welfare of the United States,” or “to regulate commerce … among the several states, and with the Indian tribes”? One may disagree with the means chosen, but goals are clearly legitimately within the powers specifically granted to Congress. Whether the ACA is ‘necessary and proper for carrying into execution the foregoing powers’ is a political question, not a question of constitutional law.
The ‘general welfare’ clause within article 1, section 8 states: ”The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.” This is not limited to the taxing power, as it is expressed within the same sub-clause as providing for the common defense. Whether the Administration has abandoned that line of argument does not render it ineffective or inappropriate
I never claimed that the commerce clause is “carefully worded” – in fact, I wrote that is it “very generally worded” and by that I meant that it was intended to be flexible enough to accommodate changes in the world that were unforeseeable to the drafters. In this sense I both agree and disagree with your point about it. The drafters did not foresee exactly how it would later be interpreted, but I do believe that they knew and intended that it would be flexible enough to accommodate changes in philosophy, technology and politics that they knew they were unable to foresee at that time.
“Health care resources are limited”
That a resource is limited (which is true for nearly any resource) is not justification for the gov’t to enter that market and attempt to regulate either the supply or the price. Electricians are a limited resource. Should the gov’t regulate the supply and/or price of that market?
“Nobody is making a proposal remotely similar to [forcing people to buy broccoli]”
That’s true at the moment, but Scalia is simply taking the gov’s argument to its logical conclusion, and there are countless examples in the past of laws being expanded beyond what anyone was arguing for at their outset. It was argued the language of the PATRIOT Act could allow spying on Americans. It didn’t matter that the supporters weren’t arguing for such power. At this point few would question you if you told them the gov’t was spying on us.
“How can it be argued rationally that the ACA is not within the power of Congress…”
Because Article 1 Section 8 does not empower the gov’t to force an individual, under threat of penalty, to enter a contract with a private company (health insurance), no matter how likely it is that they’ll enter a related market (health care) in the future.
jgardner: The limited resources argument was a response to an earlier post in which a poster (“Barry”) stated that government does (as Mr. Cosper stated in his article) operate through coercion and that “we agree to coerce stopping at red lights or … coercing fishermen to limit their catch or else the fisheries would be ruined for all.” Although it may not be the strongest argument, it remains a valid point with regard to justification for certain regulations instituted by government to protect markets or resources.
I never liked the PATRIOT Act, as I believe that it does go too far in removing judicial oversight from law enforcement (among other problems). The SCOTUS has, however, upheld significant portions of that law despite the obvious potential for abuse and ‘stretching’ of authority. It appears that it is ok for Congress to be ‘expansive’ with regard to laws dealing with security, but not so with laws dealing with commerce. The broccoli argument remains ridiculous hyperbole that flies in the face of practical political reality – now and in the future.
Your final statement is simply your opinion regarding what the various portions of Article 1 Section 8 empower Congress to do. Nothing in the language of the Constitution says that Congress can’t coerce citizens do to something that it ‘necessary and proper [to execute its powers] … to regulate commerce among the several states [or] to … provide for the general welfare of the United States.’ Those powers are specifically granted to Congress, and the means of executing those powers is limited only to what is ‘necessary and proper’ to do so.
Coercion is the primary instrument of government powers – if a person violates a law, that person is charged or sued and punished for the violation. Alternatively, coercion can be in the form of incentives to take actions that further the goals of the government, such as ‘price support’ payments to farmers not to grow certain crops, or tax deductions or credits for creating certain jobs. But for the coercive power of government, its laws would be meaningless ‘suggestions’ with no teeth. Where in the Constitution does it state that Congress can’t require the purchase of anything? Congress is limited only to methods or means that are ‘necessary and proper’ to carry out its authority, and that can include payment of taxes and duties – why can’t it include payment to third parties who provide a necessary service?
“Your final statement is simply your opinion regarding what the various portions of Article 1 Section 8 empower Congress to do”
As is yours.
“Alternatively, coercion can be in the form of incentives to take actions that further the goals of the government”
Coercion and incentives are not analogous. Incentives are ‘suggestions’, meaning there are no penalties for not donating to charity, whereas there are obvious and real penalties for not paying your taxes.
“why can’t it include payment to third parties who provide a necessary service”
Why must I be forced to buy insurance if I don’t want to? Insurance should be about risk. If I want to take on 100% of the risk, then that should be my choice and I should live with those consequences. That we have a system in which others are forced to pay for my mistakes to the extent that they are is a function of terrible gov’t policies.
Additionally, I fail to see how Congress is “regulating commerce between the states” when health insurance is sold and delivered from within state lines.
“Additionally, I fail to see how Congress is ‘regulating commerce between the states’ when health insurance is sold and delivered from within state lines.”
Have you ever seen a provider outside of RI? Which insurance company did they bill? Not to mention that many providers in CT and MA are in network to begin with.
You’re conflating health care with health insurance. I must purchase my health insurance from a RI company. That is the activity the gov wants to regulate under the ACA, but that transaction does not cross state lines, leaving a very arguable position that there is no “interstate commerce” to regulate.
“If I want to take on 100% of the risk, then that should be my choice and I should live with those consequences.”
There is no chance American society will ever work this way when it comes to health care.
If you suffer a life-threatening illness or injury, then you will be treated for it, one way or another, unless you crawl off to die in a dark corner somewhere, which you will not do.
If your assets cannot cover the costs of your treatment, then your society will, either directly or through bankruptcy.
There is simply no way to assure that anyone live (or die) with the consequences of going uninsured.
But what you decide for yourself is irrelevant anyhow.
The question before us is: what will we do with other people who suffer catastrophic illness or injury and who have no insurance?
The answer is always the same: we will pay for their treatment, one way or another.
Which leads necessarily to the question: what is the best mechanism for us to use to pay for the treatment of uninsured people?
The best answer is: single-payer. But that’s off the table.
So?
It is unrealistic to think we could remove all negative externalities and have people bear 100% of the consequences of their actions. I understand completely. But what if someone’s house burns down, or an condo complex burns down? What do we do with those people who didn’t carry homeowner’s insurance? Is the solution to have a single payer system for homeowner’s insurance so that we can pay for those uninsured? Should there be a mandate that everyone, even those who don’t currently own a home, purchase homeowner’s insurance? After all, some day they’ll own a home, and their current lack of activity in the housing market affects the price and supply of homes.
Irrelevant.
There is either a moral imperative to provide everyone with health care, regardless of their means, or there is not.
Analogies with housing have no bearing on the question.
“There is either a moral imperative to provide everyone with health care, regardless of their means, or there is not.”
Consider your statement from the other direction. Somebody has to provide that healthcare. Therefore, either a moral imperative to take goods and services from doctors and hospitals exists, or it does not.
Incorrect.
The care is never simply taken from providers. It is always paid for and always, ultimately, paid for by your tax dollars.
If you want to claim that uninsured people who receive health care they cannot pay for are stealing from you, that is very well.
Deny them that care then. Advocate for the practice of denying care to those who cannot afford it. Display some moral courage by advocating for the practical consequences of the position you actually hold.
Frankly, I think neither you, nor anyone else who thinks as you do, has the guts to come out and say what they believe.
“The care is never simply taken from providers. It is always paid for and always, ultimately, paid for by your tax dollars.”
Even if that were true, how does that make the action moral? When someone skips on paying their MD bills, the hospital does not submit the bill to the gov’t for reimbursement. They write it off as bad debt. When calculating future pricing for their services, they take the % of bad debt into account and adjust their pricing accordingly. That means it’s not tax revenue that funds it, but anyone who uses the services of a hospital.
“If you want to claim that uninsured people who receive health care they cannot pay for are stealing from you, that is very well.”
How is that not stealing, but it is stealing if I walk into a grocery store, fill a shopping cart full of food and then walk out?
You say I don’t have the guts to say what I believe (despite the fact that I have said here exactly what I believe), and yet you pretend like stealing from a hospital is somehow different than stealing in any other circumstance. Why don’t you show some stones and at least call it what it is you support — legalized theft?
No.
There are myriad ways in which the government covers the debts incurred by hospitals, precisely because hospitals are crucial to public health.
But even if this were not true, the mechanism you offer still leaves you holding the bill. The hospital raises its prices, then the insurance companies raise their prices, then you pay more for insurance.
Also, no; this is not theft. A civilization owes itself the best health care it can provide. To deny anyone health care because he cannot afford to pay for it is immoral and dishonorable.
And a further no: you have not said that we ought to deny care to those who cannot pay for it. You have suggested that to require that they receive care is theft, but you have not endorsed the consequences that position entails.
So let’s see you say it: make a statement like ‘emergency rooms should means-test their patients’. Or ‘a person with a life-threatening injury or illness should be left to die if he cannot pay for his treatment’.
There are children on Medicaid who would die without the treatment they are receiving. Let’s see you say that those children should die because their parents are poor.
You will never say things like this.
We won’t say “it” because “it” is a false dichotomy. Just because somebody doesn’t receive government-provided healthcare doesn’t mean they will die. There are free clinics and charities, and there would be far more if government hadn’t taken over their roles.
Are there no clothes for poor people? No cars? No cellphones? No food?
Irrelevant.
The issue is healthcare.
I said nothing about government-provided health care. I said ‘health care’.
You have two choices: 1) require that everyone receive health care, regardless of ability to pay; 2) allow health care providers to deny treatment to people who cannot pay for their treatment.
If you choose 1, then, ultimately, the society will bear the cost of that care.
If you choose 2, then, yes, people will die, because they cannot pay for health care.
Relying on charities is 2.
“Also, no; this is not theft.”
Then tell me what it is then, and how it’s different from the grocery store example I offered before.
“A civilization owes itself the best health care it can provide.”
As civilization is nothing more than a collection of individuals. Collectives don’t have rights, only individuals have rights, and I don’t have a right to the labor or resources of another individual without just compensation. To say otherwise is to advocate for the forced servitude of those who would provide you with said labor or resource (either the MD directly or other individuals indirectly through whatever funding mechanism you can dream up).
“To deny anyone health care because he cannot afford to pay for it is immoral and dishonorable”
Would it also be immoral and dishonorable to deny anyone food or shelter or clothing or any other good which someone can claim to need, but can’t or won’t pay for? What about the rights of those who have their resources taken? To you, it must be moral and honorable, then, to take by force the resources of some to give to those who can’t or won’t for themselves, correct?
“So let’s see you say it: make a statement like ‘emergency rooms should means-test their patients’.”
How about this — it’s wrong and immoral to steal — whether it’s from a hospital, a grocer or my neighbor, no matter how much I may need it. To tolerate, much less legalize, such behavior is damaging to individual rights. Of course, inability to pay doesn’t guarantee I’ll be denied help, as there are many generous people among us, and there are hospitals and doctors who will will donate their resources to help others. Of course, we we’ll never know because we don’t give them an option to be generous, we force them to be.
You are still weaseling.
You do not have the courage to say flat out that people who cannot pay for health care should not receive it.
If you do summon up the courage to make this statement, please put it as close as possible to your profile picture.
“You do not have the courage to say flat out that people who cannot pay for health care should not receive it.”
Because that’s not what I believe. If I can’t afford to compensate the seller, I do not have a moral right to force the seller to give it to me. That doesn’t mean I can’t or won’t get it (again, that whole charity thing).
And why do you keep “weaseling” on my questions?
I’m going to help you out.
Please cut and paste the following statement into a reply:
“when there is a terrible car accident, in which people are bleeding to death, we are under no obligation to give them treatment. We can simply let them die on the side of the road.”
If you are unwilling to claim this statement as entailed by your beliefs, then you do not have the courage of your convictions.
Charities are irrelevant. They are under no obligation to provide care. Which means that, again, you must either subscribe to the statement above, declare yourself a moral coward, or admit that you support socialized medicine, one way or another.
This entire argument is so stupid. You keep mistating our position as a false dichotomy between socialized medicine and “letting poor people die” and then accuse us of being cowards for not parroting the mischaracterization back to you. But we’re never going to adopt a statement we don’t agree with and that has nothing to do with “cowardice.”
It’s *really* not a difficult distinction if you’re being intellectually honest:
-People morally should help others and typically do in absense of government coercion
-But they should not be forced to help against their will
Just because something is the moral choice doesn’t mean we should force everyone to do it. There, that’s it. No more discussion necessary.
You do not have the courage to embrace the practical consequences of your position.
“Just because something is the moral choice doesn’t mean we should force everyone to do it”
When it comes to life and death, illness and health, yes, we should force everyone to act morally. And, in fact, we do. And, in fact, we always will.
“People morally should help others and typically do”
Here is where you are making your moral position clear. You are saying that there is no moral imperative to provide health care to those people dying in a car wreck on the side of the road. You believe that, typically, someone will help them, but you don’t care if anyone does actually help them.
I understand completely why you are afraid to admit that this is your position, but neither will I release you from the fact that it is your position.
You are the kind of person who thinks this way. There is no escape.
You don’t understand our position at all because you keep mistating it. We are disagreeing with you over what the true outcome of a free market in healthcare would be. If you want to calling us names and presenting us with false dichotomies, the discussion will never go anywhere. If you want to actually listen to our position, then maybe there is room for a discussion. It doesn’t involve “letting people die.”
Untrue.
You both agree that the outcome of a fully privatized health care market would be that health care professionals can deny care to people who cannot afford it.
The practical consequences of this regime would include the denial of health care to people who cannot afford it.
The denial of health care would result in suffering and death.
These conclusions are inevitable. You simply don’t wish to admit that you are not only someone who accepts such conclusions, but desires them.
RightToWork: ”Just because something is the moral choice doesn’t mean we should force everyone to do it. There, that’s it. No more discussion necessary.”
Right – so morality has nothing to do with law? Does that mean we can repeal laws regarding fraud, theft and bribery? Oh, wait – that’s not “forcing” people to act morally, it’s punishing them when they don’t. Very different thing, right? How about consumer fraud laws that require disclosures before selling a product – sin’t that ‘forcing’ the seller to act morally?
Mr. Cosper wrote in the article that started this series of comments: “This is how John Locke describes government: Government is the power of coercion, up to death, to compel citizens to act for the common good.” That is the very essence of civilization and government, the only variables revolve around the means of coercion and defining the “common good.”
@Watchemoket
“so morality has nothing to do with law?”
Not in every instance, no. Some morality is more or less universal because an individual’s natural rights were violated, and gov’t involvement there is morally justified. In other cases it’s just some people’s preference for living being enforced on everyone. For example, some might consider it immoral to get a tattoo, but it’s not illegal to do so. In the opposite case, some might consider it immoral to consume marijuana, and it is illegal to do so. In both cases there is no moral justification for gov’t involvement.
@turbo
I’m going to help you out.
Please cut and paste the following statement into a reply:
“If I enter a place of business and consume goods/services and then leave without justly compensating the seller (or coming to a compensation agreement with the seller), I have committed theft. It is immoral and dishonorable, but I don’t care because I think it should be allowed. My ends justify my means and I don’t care whose rights I trample in the process. I support legalized theft.”
“Theft”
Nonsense. There can be no theft where there is a duty to save lives and alleviate suffering.
Nor can there be theft when an individual freely places himself in a position where he has an obligation to provide his services.
Nor can there be theft when a person is paid for the services he is obligated to provide.
Health care professionals live in a society that legally mandates certain kinds of care, a society that makes it clear that to take on this kind of work is to take on this obligation, and a society that compensates those people who are obliged to provide these services.
Theft is simply impossible under these conditions. Your position is tantamount to saying that it is murder to order a soldier who freely enlisted in the army to fight in a battle that leads to his death.
You have no argument, whatsoever.
“it’s wrong and immoral to steal — whether it’s from a hospital, a grocer or my neighbor, no matter how much I may need it. To tolerate, much less legalize, such behavior is damaging to individual rights. Of course, inability to pay doesn’t guarantee I’ll be denied help, as there are many generous people among us, and there are hospitals and doctors who will will donate their resources to help others.”
It seems to me there’s another issue you’re not addressing here. Aren’tthose hospitals and doctors helping at your expense? Meaning, the cost is going to be passed on to those who do pay – and thus they’re stealing from YOU.
I do think Turbo has a point that you’re not following through to the final conclusion. Just as stealing is against the law, so is “abetting”. It seems a bit naive to think that someone else will just take care of those who need help, and not see that you’re being charged for it anyway. A doctor may decide to help, but who pays for the operating room, the nurses, the lab techs, the cleaning crew, the electricity, etc, etc, etc? In an emergency, it’s likely not even possible to get advance consent of everyone involved to work for free.
“Meaning, the cost is going to be passed on to those who do pay – and thus they’re stealing from YOU. “
That’s to say, then, that all charity of any kind is paid for by the business’ customers. While that may be the case in some instances, that’s certainly not the case in all instances. Additionally, if I agree to pay the prices charged by the business that is performing charity, then it’s not theft.
“but who pays for the operating room, the nurses, the lab techs, the cleaning crew, the electricity, etc, etc, etc?”
I think you’re making it more complicated than it really is. You don’t need the consent of all those parties if the person who has agreed to perform the charity is in a position to make such a decision (and therefore willing to absorb the costs down the chain).
[...] care and broccoli there’s a real problem,” he said this morning at RIC, referencing Justice Antonin Scalia’s line of questioning as the court debated Obamacare last [...]
Interesting take on this in the NEJM…
“The Irrelevance of the Broccoli Argument against the Insurance Mandate”
Legitimate legal arguments. I don’t personally find them that persuasive since most of them are analogies or ‘economic equivalence’ arguments that don’t usually carry much weight. Lots of things are “equivalent” to a tax, and the economist in me is sympathetic, but that doesn’t exactly make them a tax in a legal sense. I’m not as confident as the author that just throwing in some “Anyone who engages in commerce” wording would solve the problem. Courts look at substance over style and that does nothing to address the substance of the issue. Seems kind of amateurish to even suggest it.
What that piece is doing in a Journal of Medicine is beyond me. It would be much more at home in a Law Review Journal, which everyone knows only white-haired law professors read. Come to think of it, maybe that explains it.
“Courts look at substance over style and that does nothing to address the substance of the issue.” That’s kind of one of the points made, that the arguments against are basically objections of style over substance because the penalty is not called a tax: — quote — The objectors respond that the new insurance mandate was not called a “tax.” But why should mere phrasing trump substance? Both Medicare and the new mandate entail obligations to pay money for health insurance. That is what matters, not the labels chosen to describe this reality. Because the objectors’ tax–nontax distinction turns only on phrasing, like their activity–inactivity distinction, it similarly fails to prevent the feared power to force purchases. Even without Commerce Clause authority, Congress could achieve precisely the same result with its taxing power by requiring us to pay a “tax” whose revenue will go to buy health insurance — or broccoli — for ourselves. — end quote — I think that’s fairly persuasive, unless you’re someone who would suggest likewise scrapping Medicare, etc.
[...] It is therefore clear that mandatory insurance will have a substantial effect on interstate commerce in any number of ways. Accordingly, the Patient Protection and Affordable Care Act is constitutional – despite its detractors’ ridiculous analogies to buying broccoli. [...]