58 thoughts on “The Mandate Is In Trouble

  1. ken anthony

    “it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

    …accumulation of power in any one source is, in Madison’s words, “the very definition of tyranny.”

    These are great quotes that everyone in government should have a daily dose of cluebat beatings with.

    1. Schteveo

      Ken,
      does that include so voluminous and incoherent that the guy arguing FOR it can’t keep it straight?

      I’ve never heard laughter recorded during a SCOTUS case before. It’s funny, but scary just how convoluted this is.

      1. ken anthony

        One thing I’ve noticed with people is most do not appreciate the power of simplicity. When I worked as a programmer, I would often have to untangle some code written by brilliant people that had no concept of elegance. It’s not something you can teach. The result was less code with more flexibility and fewer bugs.

        People create these Gordian knots constantly and few know how to weld the knife. Truth is much simpler than that. It’s one of the reasons I love the beauty of physics. Simple truth can have profound results. Our constitution in many ways is another example, but they didn’t keep it simple enough.

        Look at the havoc they’ve done with the commerce clause. Better they never included it. Of course, people find something else to abuse for the same purpose, but you don’t want it to be too easy for them.

  2. MPM

    Madison’s scheme, which is the best architecture for self-government yet devised by man,

    Not self-evident. The US Founding Fathers did not invent democracy ex nihilo.

      1. MPM

        Fair enough, but I think my general point stands. I see little evidence that the American system of government is superior (or inferior) to that in other highly developed countries.

          1. MPM

            Seriously? Do you think the US system is superior to that in say Switzerland in most respects?

          2. Rand Simberg Post author

            That depends on what you mean by the “US system.” The one given us by the Founders, or the current mess? Also, both the US and Switzerland have some unique cultural and geographical attributes that might not work out very well if they were to swap political systems.

          3. Karl Hallowell

            Seriously? Do you think the US system is superior to that in say Switzerland in most respects?

            I don’t know enough about Switzerland to say. But as the democracy with the oldest active constitution, the US has some surprising advantages. First, it has strong protection of rights that are genuinely rights, such as freedom of speech and the right to bear arms (an extremely rare right in the world today). And it doesn’t grant rights to entitlements (eg, a “right to health care” or a “right to social security”).

            The US created several innovations such as divisions of power, judicial review, and the federal structure that most modern democracies copy to some degree (usually poorly).

            Nor has it needed a lot of revision. There have been about 20 changes to the Constitution since the Bill of Rights (which should be considered part of the original Constitution since it was created as part of the deal that led to approval of the Constitution in the first place.

            It is rather surprising how well it’s held up. Even now, though long in the tooth, the Constitution compares well to rival constitutions even modern ones.

        1. gbaikie

          “Fair enough, but I think my general point stands. I see little evidence that the American system of government is superior (or inferior) to that in other highly developed countries.”

          First the obvious: the US is 50 states and Switzerland is one state.
          The world would not unravel with the disappearance of one of the US, say, Georgia or the country of Switzerland.
          But what would the world do without the US?
          American system of government is not superior [it wasn't the plan] but it’s people are still free.
          And that’s the whole point.
          And the rest of the world are free loaders.

          The question is who was the Soviet Union’s greatest enemy?

          The Soviet Union, Nazis Germany, North Korea, Iran- these disfigured creatures are examples of what most people should not want.

          So unless a government can defend the world against such threats to human dignity and liberty, what value can be assign to it in terms of it being superior?
          Now, Switzerland may or may not be doing swell job in helping world by being a “third party” in a conflict. As in: we want to keep Iran from getting nuclear weapons- and that country then using them.
          Nor is point how much Switzerland has done to help thwart various tyrannies of the past. Nor isn’t how lovable the people or the government of Switzerland are.

          The issue is who do these various thuggish regimes always see as their ultimate threat.

  3. MPM

    Is there anything in the US Constitution that would prohibit individual states passing a universal mandate within their own jurisdiction? How about state constitutions? It’s always good to remember that constitutional and good aren’t synonymous.

    1. Thomas Matula

      MPM,

      [[[Is there anything in the US Constitution that would prohibit individual states passing a universal mandate within their own jurisdiction?]]]

      If there were anything in the U.S. Constitution then Massachusetts wouldn’t have Romneycare.

        1. Karl Hallowell

          Romneycare hasn’t been contested unlike Obamacare. So I’d say that it’s a demonstration that states can pass constitutional valid mandates of this sort.

    2. Pro Libertate

      The unconstitutional part of the mandate is based on it exceeding the scope of federal power. States aren’t as restricted in what they can do, though that varies considerably by state. States are, of course, limited by their own constitutions, but they are viewed as having general police powers, which the federal government does not have. At least, not under the Constitution as written.

    3. Titus

      The simple answer to your question is, “no.”

      The States have plenary powers. The Feds, enumerated. However, the individual retains certain rights under the US Constitition which even the States may not violate.

      The potential (perhaps unlimited) expansion of the Commerce Clause is what makes this, “a Big F@#&!^% Deal.”

    4. George Turner

      I think there would be limits on state mandates, as forcing someone to enter into a contract renders a contract invalid. I think George Will mentioned this the other day. All contract law is based upon entering into it willingly and without coercion, so by its nature it can’t allow for government mandated contracts.

      To stretch the point to absurdity, I’ll reuse an example I’ve used before. Suppose Alabama mandated that blacks have to enter into a contract to provide free labor to cotton farmers in return for room and board?

      You are forced to pay a private insurance company for a product you don’t want, but can’t through any change in behavior (unlike driving a car) avoid. You must enter into a contract to provide them money that’s not already owed (unlike paying a debt) until you die, and this obligation will likewise fall on your children and grandchildren, in perpetuity. Even if you are unemployed and have no source of income, you must pay. Even if you are disabled, you must pay. At what point does this cross the line into being a company’s slave, a company that doesn’t even employ you?

      1. Titus

        1. Applying the law exclusively to blacks would be a clear violation of civil rights and thus be void.

        2. Removing the above difficulty, it creates an interesting position — such a de facto slave could effectively “breach” the contract at-will and then argue that the contract was void on the grounds that it was entered into under duress if the company had the audacity to sue.

      1. Thomas Matula

        Rick,

        [[[the government isn’t]]]

        Last I looked the Supreme Court was one of the three branches of government.

        1. ken anthony

          When people abandon the principles on which the rules are based; it doesn’t matter if the supreme court is part of the govt. or the rules are being obeyed.

          This really isn’t that hard to figure out Thomas.

        2. Gregg

          TM

          Hard as this may be for you to comprehend:

          The government isn’t the Constitution and the Constitution isn’t the government.

          Just because a constitution exists, doesn’t mean the government is following it in the least little bit.

    1. Schteveo

      The Constitution is still working.

      If it wasn’t, Mr Obumble would have been crowned Emperor of the Universe by his acolytes, Congress would be abolished and in chains, and the SCOTUS building would have a new sign, and it would be re-spelled to SBARRO!

      But luckily, Mr. Obumble doesn’t have THAT much flexibility.

      Yet.

  4. Karl Hallowell

    For me, one of the most reprehensible aspects of Obamacare is the fact that they could have implemented the core laws in a more constitutional manner. But if they did so, then it would cost more, a lot more. They pay a good portion of the cost for this abomination by trampling on our freedom. Freedom shouldn’t be sacrificed for the convenience of the state, particularly to make a disastrous policy a little cheaper.

    1. Jim

      But if they did so, then it would cost more, a lot more.

      How so? If Obamacare’s mandate was framed as a tax-and-tax-credit it’d be undoubtably constitutional, and have exactly the same cost.

      1. Titus

        You either didn’t listen or read the transcripts or are just trying to be cute. That scheme would also amount to an illegal direct tax. They covered that.

  5. Titus

    Scalia’s comments are damning:

    By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it, and that’s — that’s different from regulating in any manner commerce that already exists out there.

    1. Larry J

      Finally! It’s so annoying to hear all the brather about “health care reform” when what they’re really reforming more than anything is how to pay for it. It’s health insurance reform, not health care reform. Health care is what you get when you go to your doctor or hospital. Health insurance is the distorted system we have for paying for health care.

      The closest thing to health care reform is all of the bureaucracy the legislation enacted, primarily to restrict health care choices. They did that for financial reasons more than anything else.

    2. Gregg

      Yes finally! The left has very deftly transformed the mental concept into health *care*. This carries with it images of babies and old folks, sick and lame, etc. It gives the impression that if you vote against the lib position, you are denying health *care*.

      Everyone – even many on the right, have bought into this because they use the term “health care”.

      It’s insurance we are talking about.

      I was listening to John Stossel last night and he pointed out a solution to one problem I’ve chewed on:

      You can make sure that an insurance company does not drop you the instant you get sick – that’s basic contract law.

      But what happens when the yearly insurance policy expires? The insurance companies no longer have to accept you because the contract has ended. Libs want to force them to take you but that turns it from insurance to health care.

      Stossel’s idea was for insurance companies to issue long term and short term insurance and YOU get to decide which to pick. Pick the short term yearly thing when you are young – it will be cheaper. decide when to move to the long term policy – it will be more expensive but that’s only logical.

      1. Titus

        The unexplored solution would be like a Universal Life policy (or even VUL). The incentive, of course, would be to get in young, ideally when you start working, to get the lowest rate and build-up equity to pay for expenses later in life. You could even set the value such that after 30 years preimums are paid from the interest on the equity thus avoiding paying premiums during retirement. I could imagine such policies being as popular as the 30-year mortgage.

        1. Gregg

          Very good idea. I’m sure you can think up others and so can other people if they put their minds to it.

          Just goes to show that when allowed to use their heads, the People can come up with solutions.

      2. ken anthony

        Titus has the right idea. Basically create an annuity, with limited term payments, that fully pays your health insurance for life. Another that doesn’t quite work the same way is just to include a perpetual renewal option that the insurer can’t deny.

  6. Paul Breed

    To me the obvious solution is no insurance and no $$ to pay, no treatment.
    It solves the problem. Now if you want to make some kind of minimal safety net insurance available do so, but require that people actually sign up for it and pay something.

    1. ken anthony

      Or you could let free enterprise handle it just as they did when they figured out that some percentage of ships don’t get their cargo to port and the insurance industry was born (all without govt. help.)

    2. Daveon

      Yes, because sick people turning up at ER and turning away would play so well on the evening telly.

      Not sure if you people actually want to live in the world you claim to want to live in.

      1. ken anthony

        Yeah, that happens a lot, doesn’t it? /sarc.

        Perhaps families could be responsible for their own. Teaching their children right from wrong and personal responsibility. If someone is brought into the world in less than perfect health perhaps their parents and social group could step up?

        Perhaps we live in an imperfect world and no matter how much you want to fix everything you can’t. By not trying to fix everything in a tangled mess of regulations we can actually help more people and not less.

      2. MfK

        Yes, living in your ideal world would be so much better. There if you can’t afford something, you just get hold of the reins of government, and use force to make other people pay for it. The unlimited use of force in human relations…that’s the ticket to paradise.

    3. George Turner

      Actually what you’d need to cover that case is either charity or a loan. Prior to the establishment of Britains NHS, poor people got free health care. Doctors and hospitals would overbill wealthy patients to cover those who couldn’t pay. The NHS, being funded by taxes that are also paid by the poor, raised the health-care costs of the poor it was trying to provide for.

      In traditional private interactions, a person who cannot pay and doesn’t have insurance could still be treated, but would then owe the doctor or the hospital a debt. This makes sense to everybody because when you cry out for help and someone saves your life of their own free will, you are indebted to them. They might also forgive that debt if it is too burdensome.

  7. Daveon

    Excellent, perhaps now they can just go with single payer and be done with this ‘mandate’ nonsense and the US can grow up.

        1. Titus

          Maybe he’s from Europe, a land where men have been effectively abolished leaving behind two flavors of women and a third type of human that gets into drunken brawls at sporting events.

    1. mattm

      Excellent, perhaps now they can just go with single payer and be done with this ‘mandate’ nonsense and the US can grow up.

      I have never understood why the idea of having someone else take care of you is considered “grown up”.

      I always through that being a adult is to be independent and be able to take care of yourself. Also being an adult used to include the concept of being free to make your own decisions.

      I do not understand why a one size fits all federal system is better then being free to make your own decisions.

      “Sell not virtue to purchase wealth, nor Liberty to purchase power.”
      Benjamin Franklin

    2. MfK

      Yes, grow up and force others to pay for your [fill in the blank]. The first resort of all adults is to point a gun at whoever won’t submit, eh Daveon?

  8. MPM

    But as the democracy with the oldest active constitution, the US has some surprising advantages.

    Free speech is guaranteed in all western democracies and the right to bear arms is infringed in several US states to a level that isn’t much different than what’s allowed elsewhere.

    And it doesn’t grant rights to entitlements (eg, a “right to health care” or a “right to social security”).

    Not on a federal, constitutional level, but it hasn’t prevented these in ordinary law, nor at state level.

    The US created several innovations such as divisions of power, judicial review, and the federal structure that most modern democracies copy to some degree (usually poorly).

    Separation of powers is not an innovation, but an ancient concept. I don’t know about judicial review, but it isn’t universally considered a good idea. Federal and confederal structures have existed before, but you may be right the US was the first to codify detailed rules (not sure about that).

    It is rather surprising how well it’s held up. Even now, though long in the tooth, the Constitution compares well to rival constitutions even modern ones.

    I didn’t say it was inferior, I see no reason to believe it is, just that it isn’t obviously superior. That said, I’m not sure its strong presidency has served the US well.

    1. Gregg

      “Separation of powers is not an innovation, but an ancient concept.”

      Absolutely. The Roman Army understood it:

      food was shared by two soldiers. One soldier cut the piece of bread in half. The other soldier got to choose which of the two pieces he wanted.

      1. Karl Hallowell

        It’s worth considering that if the Roman Republic had similarly maintained their balances of power (such as Senate versus Consuls or wealthy landowner versus lower class free citizen), they might still be around.

    2. Karl Hallowell

      Free speech is guaranteed in all western democracies and the right to bear arms is infringed in several US states to a level that isn’t much different than what’s allowed elsewhere.

      Except for speech that doesn’t make the cut. For example, Nazi rhetoric and symbols are banned in a number of European countries, but not in the US. And a portion of the country infringing on the right to bear arms is far less serious than the whole country doing so.

      Not on a federal, constitutional level, but it hasn’t prevented these in ordinary law, nor at state level.

      Ordinary law doesn’t grant rights since one can always pass a law to revoke the old law. And states are run by their own constitutions.

      Separation of powers is not an innovation, but an ancient concept. I don’t know about judicial review, but it isn’t universally considered a good idea. Federal and confederal structures have existed before, but you may be right the US was the first to codify detailed rules (not sure about that).

      Hence, why I said it was an innovation. Yes, there are earlier examples, usch as the Magna Carta, which created a crude, de facto division of power between the King of England and the nobles. The difference is that the US institutionalized these divisions of power as a fundamental part of the US and its government with the intent to limit the power of its government from the very beginning.

      I didn’t say it was inferior, I see no reason to believe it is, just that it isn’t obviously superior. That said, I’m not sure its strong presidency has served the US well.

      That depends on the metric doesn’t it? For example, by longevity, compactness of the constitution, or number of revisions, the US is extraordinarily stable with a remarkably small constitution. As to the “strong presidency”, I don’t see that as much of as problem as the decay of federalism. All branches of the central government are unusually powerful right now.

      1. MPM

        For example, by longevity, compactness of the constitution, or number of revisions, the US is extraordinarily stable with a remarkably small constitution.

        On the other hand, the fact that your constitution is so difficult to change may be part of the reason it has been subverted instead. Not sure if that’s better or worse than having a constitution that is more easily changed.

        As an aside, the French Fifth Republic has suffered from an overly strong presidency and a weak parliament. As a result many political decisions have in fact been made by mob rule, when mass strikes and protests have blocked reform measures.

        1. ken anthony

          Not sure if that’s better or worse…

          Let me set your mind at ease. It’s better. Control mechanisms should always ‘under steer’ as long as they have enough to get on track. ‘Over steer’ carries the danger of whiplashing you into a crash. It may actually be too easy to change the constitution in its current state.

          The problem today is they ignore the prescribed method of change and just rule the changes anyway.

  9. Schteveo

    The dialogue between the Solicitor General and the Justices has been enlightening. And it’s the first time in MY memory, in any hearings or motions at SCOTUS, where the gallery laughed at the lawyer(s) appearing before the court.

    Doesn’t it give the Left a clue as to the weakness of their case that there’s laughter in the gallery, and the Liberal judges are ‘coaching’ the SG through this nightmare? And the explanations of their case.

    OY!?

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