ObamaCare Is On The Ropes

Richard Epstein explains:

The government finds itself here in a real pickle. Virginia has drawn a clear line that accounts for all the existing cases, so that no precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to bicycles, because there is always some good that the coercive use of state authority can advance. The ironic point is that this is not a commerce-clause argument as such, for in my view any state statute would be subject to the same objection even though the state has plenary police powers.

Read the whole thing.

I think that this also demonstrates the constitutional ignorance of the Democratic leadership and its counsel, and legal incompetence of the Holder Justice Department (not that it was really a winnable case).

I would also add that, as he points out, that this is a demonstration of why state requirements for the purchase of auto insurance don’t lie with the fact that the are states, but with the fact that driving on public highways is a privilege, not a right, and that auto insurance mandates are to protect others from the externalities of your driving, not to protect you from yourself (as health insurance is).

66 thoughts on “ObamaCare Is On The Ropes”

  1. I don’t think the comparison of the new healthcare law and the individual state’s requirement to demonstrate proof of financial responsibility is the best analogy that can be made. Let me demonstrate one that I think is better. The U.S. is allegedly ranked 37th in healthcare, (which I addressed in a previous comment). And yes, we allegedly spend more for worse results than any other western country. Let us for a moment look at the U.S. education system. The three-yearly OECD Program for International Student Assessment (PISA) report, which compares the knowledge and skills of 15-year-olds in 70 countries around the world, ranked the United States 14th out of 34 OECD countries for reading skills, 17th for science and a below-average 25th for mathematics. According to the Dept. of Education, 14% of U.S. adults lack basic literacy. Clearly this is a crisis in education. I propose the following solution: We need a public option for education. This should probably be implanted with some sort of cabinet level agency to provide national oversight, and state agencies to oversee implementation in each state. We could call this public option “Public School”.

  2. Bob: Stop conflating governments. As has been pointed out several times, there are differences between the powers enumerated for the federal government, and the powers reserved for the states.

    There is also a mechanism by which all of these powers can be changed to be whatever you like. Said mechanism has been used to resolve a number of specific issues over the years, from ending slavery to allowing the federal (not state; those currently are allowed or disallowed separately!) taxation of income.

    The rules allow for you to change the rules; try following that process, rather than simply changing them by decree.

  3. Also, I should have added: folks, society != government! Until the advent of 20th-century utopian systems of government (all of which have failed miserably at their official, declared goals of equality and justice), there was a recognized difference between the desires of the rulers, and those of the common man.

    “The King is the Land, the Land is the King” appears to be the new Progressive refrain, while to the rest of us, it sounds more like, “It’s good to be the King.”

  4. Mr. Anthony: Thank you for your polite reply. My argument stems from the fact that no such thing as an “individual right” exists. The entire notion of “rights” from which the liberal project emanates is philosophically flawed; it assumes that the individual, atomized human being is the basis of society, and creates “rights” for such beings ex nihilo. This not only flies in the face of human nature but of logic: if man had any rights, they cannot be intrinsic to man qua man (since we frequently see men who do not enjoy said rights), but can only be those granted by a Higher Power (as Locke recognized). Of course, we men of the West are far too learned and too smug to admit that any power beyond our own will exists; therefore, any “rights” that may exist are those we create for ourselves, at bayonet point.

    And the natural human family, not the individual, is and has been the basis and model for all human society since time immemorial.

    I think the kind of “liberty” bandied about as a priceless treasure so frequently in our society is an illusion. Every human being on earth is subject to the whim of some other human being or power structure; only the degree of subjection differs. The closest any man can come to being free is to submit his entire will to the Will of the Deity, thereby “syncing up” with Reality as it is and attaining freedom from the god of Self and from servitude to our physical appetites. This is what Christ means when He points out that the only way to save one’s life is to lose it; this is what the Buddha was striving for when he counseled us to free ourselves from desire.

    But this is all beyond the scope of the topic at hand. To sum up: my position on this issue is based upon a rejection of the metaphysics of the “enlightenment” and an affirmation of the traditional Western worldview regarding the individual human person and his relationship to society. Thank you for your kind attention.

  5. Karl, is taxation with representation “blatantly undemocratic”?

    Given that the majority of voters don’t pay the majority of taxes, it’s not taxation with representation. Recall at one point the Democrats were trying to create a tax system where the majority of voters didn’t have to pay taxes.

    Dear Mr. Hallowell: please can the hard-ass, cape-and-gold-brooch Ayn Rand schtick. It’s embarrassing on a teenager; on an adult such a pose is ludicrous.

    No offense, B. Lewis, but you don’t seem to have gotten past those years. I’m not channeling Ayn Rand, but rather pointing out the obvious. Chris doesn’t have to pay for his beliefs with his own money.

    Only liberals, whose social philosophy revolves around the whimsical notion of “rights”, object to being “robbed” in order to pay for the health care of others. Conservatives, who reckon human nature in terms of duties and obligations instead of rights, know that we each have a duty to see to the basic well-being of our fellow men, and pay willingly.

    In other words, “liberals” are concerned with freedom and other concepts that made the US great while “conservatives” are concerned with feigned morality using Other Peoples’ Money. Please keep in mind that real conservatives use their own money to fulfill that duty above.

    If you don’t like it, tough — lobby for a repeal of Medicare, Medicaid, and the rest of it. I’ll back you; the only people who should receive any sort of government cash are military veterans. But until you do that you will please spare me the indignation over taxation. We voted to let them rob us; it is therefore our duty to allow ourselves to be “robbed” for the sake of the poor.

    That characterization of my vote is incorrect. And I am lobbying for the repeal of Medicare, Medicaid, etc. So are you going to “back” me or find a new reason to insult me?

  6. Walking and traveling down public roads are rights not priviledges evolved from the common law practice of allowing travelers to walk along boundaries between properties or even walking through properties. It is still a recognized right in most states to cross private property in most circumstances. The idea of public roadways derives from that common law practice. Roads as dedicated arterials for motorized vehicles is a new, early 20th century, phenomenon. All this arguing about roads and insurance reflects a basic ignorance about those historical facts.

  7. My argument stems from the fact that no such thing as an “individual right” exists. The entire notion of “rights” from which the liberal project emanates is philosophically flawed; it assumes that the individual, atomized human being is the basis of society, and creates “rights” for such beings ex nihilo.

    B. Lewis, the obvious counterexamples of modern democratic societies void this argument. For example, the US has had recognized individual rights for over two centuries. The rights exist despite whatever authority grants those rights. Since your argument is wrong from basic principles, do you have a real argument to make?

    But this is all beyond the scope of the topic at hand. To sum up: my position on this issue is based upon a rejection of the metaphysics of the “enlightenment” and an affirmation of the traditional Western worldview regarding the individual human person and his relationship to society. Thank you for your kind attention.

    Which traditional Western worldview? The “enlightenment” is itself such a beast.

    This is not to say that man has no individual existence; a human being is not a hive animal like a bee or an ant. But neither is he an atomistic, autonomous Randian Self. Aristotle points out that it is impossible for a human being to “never live for the sake of another man, nor ask another man to live” for his own sake. “Man is essentially, or by nature, a ‘social animal’, that is to say, he cannot attain complete happiness except in social and political dependence on his fellow man. This is the starting point of political science.”

    Well, what does “atomistic” mean? It means merely consisting of disparate elements. As far as society goes, it makes no sense to speak of things smaller than the individual. My liver or my education can’t be spoken of as separate things from the rest of me, socially. Nor does it make sense to ignore that society is made up of people. Society is as a result atomistic by definition, a result which is independent of your choice of belief system.

    As to your caricature of Objectivism philosophy, even they recognize that people interact with each other. Objectivism autonomy still has human interaction.

    Finally, we’re left with the non sequitur of claiming that autonomy (described by you, B. Lewis in the language of “rights”) is illusionary as a rationalization for intrusive government action. One simply has to note that the government in question has socially imposed constraints on its activities, and that the approach of Obamacare is inconsistent with those constraints and their underlying purposes. One also ignores the difference between capability and morality. Just because something can be done, such as imposing a flawed and perhaps self-serving code of morality on hundreds of millions of innocent people, doesn’t mean that it should be done.

  8. Dear Mr. Hallowell: Thank you for your response. Meaning no disrespect, but the late Ms. Rand was a poor writer and an even poorer philosopher, and I question her validity as a source of ideas for serious people. Scour the texts as much as you like, but you will not find her soi-disant philosophy of objectivism counted among the serious schools of philosophic thought; meanwhile, her bēte noir, Immanuel Kant, looms ever larger in the annals of philosophy.

    As for the so-called enlightenment: it is part of Western history, but not of the Western philosophical and spiritual tradition. Its fundamentals — materialism, positivism, and atheism — would have seemed whimsical to Socrates, repugnant to Plato, laughable to Aristotle, pathetic to Augustine, and unreasonable to Aquinas. Its ethic — liberty, equality, and fraternity – stands in opposition to the traditional ethic of the West (e.g. tradition, family, private property). Far from being a natural outgrowth of the tree of Western thought, it represents rather a grafted-on branch of rebellion against tradition — a branch that has borne much poisonous fruit over the past five centuries.

    This discussion, however, has now drifted far enough from the topic at hand that I no longer feel inclined to continue it in this venue. Please feel free to contact me privately should you wish to converse further in this vein. Thank you again for your reply.

  9. Dear Mr. Hallowell: Thank you for your response. Meaning no disrespect, but the late Ms. Rand was a poor writer and an even poorer philosopher, and I question her validity as a source of ideas for serious people. Scour the texts as much as you like, but you will not find her soi-disant philosophy of objectivism counted among the serious schools of philosophic thought; meanwhile, her bēte noir, Immanuel Kant, looms ever larger in the annals of philosophy.

    I find your description of Ayn Rand to be more than adequate. Even poor philosophy often has some true parts to it. I wasn’t defending Rand, but criticizing your post.

    Far from being a natural outgrowth of the tree of Western thought, it represents rather a grafted-on branch of rebellion against tradition — a branch that has borne much poisonous fruit over the past five centuries.

    A Western belief system that has been around for five centuries? You aren’t making an argument against calling Enlightenment a traditional Western worldview.

  10. we can simply write the law such that anyone who wants the privilege of traveling down a public road must purchase medical insurance.

    Why stop there? Vegatables are good for you, so anybody who wants to travel on a public road must purchase 3 servings of vegatables per day. Exercise is good for you, so anybody who wants to travel on a public road much purchase a gym membership. Unprotected s3x is bad for you, so anybody who wants to travel on a public road must purchase a condom every day……

  11. Rob, I think you’ve nicely filled out the picture. Although, please recognize that three servings of vegetables would not be required to benefit the driver, but to benefit the taxpayers, who would save money due to the driver’s superior health.

    So, lets go back to Rand’s original comment: “this is a demonstration of why state requirements for the purchase of auto insurance don’t lie with the fact that the are states, but with the fact that driving on public highways is a privilege, not a right, and that auto insurance mandates are to protect others from the externalities of your driving, not to protect you from yourself (as health insurance is).”

    Given that this sort of reasoning leads to requiring thee servings of vegetables a day, doesn’t Rand’s formulation seem horribly wrong to you now?

  12. no such thing as an “individual right” exists

    In an absolute sense, probably not, although our founders considered certain rights to be given by god. The first right seems to be of thought. Many but not all would consider it wrong to tell another person what they must think.

    What rights we have are defined by what we are willing to defend. I consider liberty and property foundational rights that I would give my life to defend.

    Rights are taken by force. This is the problem. Our government has too much power to take away rights (justification is after the fact.) We must absolutely fix this.

    I’m sorry, but I will continue to fight for my mythical individual rights.

    A privilege must be asserted.

    I think I’ve made it clear that a right must also be asserted (if not by the individual that may lack the power, but by society that recognizes the individual to retain the right) and a privilege really is just a right restricted to a certain class.

  13. The idea that privilege is somehow different from a right because it’s given misses the question of why does anybody have the authority to give privileges.

    If I have an absolute right to my property I can give a privilege by allowing certain people to use my property.

    The government doesn’t own any property (public property is not owned by the government.) So do they actually have any authority to grant privileges about it’s use? Not really, they just do and it becomes fait accompli. This does not make it right even when the result is beneficial.

  14. Given that this sort of reasoning leads to requiring thee servings of vegetables a day, doesn’t Rand’s formulation seem horribly wrong to you now?

    Only in the sense that I think driving on a public highway is in a right, not a privilege and disagree that requiring health insurance is to protect the individual from himself, but to rather to protect the government from itself. The government wants to guarantee a certain level of health care to all it’s citizens, but can’t afford to pay for it. Requiring people to buy insurance is an attempt by politicians to have their cake and eat it. The problem is, it won’t work because, health insurance =/= health care. Health insurance only works if the health care providers are willing to accept it for payment, if they don’t the whole system falls apart, which is why I raised the question about whether the government also has the right to mandate that doctors treat patients.

  15. but to benefit the taxpayers, who would save money due to the driver’s superior health.

    Taxes don’t go down because someone uses less government services somewhere. There’s too many other parasites out there to take up any slack. So I don’t see any savings to taxpayers.

    Also, an externality is a cost imposed on a party which didn’t agree to a transaction. This isn’t the case with health care costs. All such costs are willingly accepted by government.

  16. As for the so-called enlightenment: it is part of Western history, but not of the Western philosophical and spiritual tradition. Its fundamentals — materialism, positivism, and atheism — would have seemed whimsical to Socrates, repugnant to Plato, laughable to Aristotle, pathetic to Augustine, and unreasonable to Aquinas. Its ethic — liberty, equality, and fraternity – stands in opposition to the traditional ethic of the West (e.g. tradition, family, private property).

    Sadly these mystics were the real usurpers/coat-tail riders to genuine Western thought. Unfortunately, history is written by the “winners.”

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