Obamacare punishments as a tax

Thanks to Todd, who helps me with the technical side of this blog, for stepping in with the news emergencies while I was away.  You’ve discussed how the Supreme Court upheld Obamacare in its insurance purchase mandate.  Litigation on other Obamacare issues is getting under way.  (There are now 23 lawsuits against the contraception and abortifacient mandate.)

What do you think about conservative Chief Justice Robert putting the best construction on Obamacare by construing its penalties as a tax?  The reasoning was that people who refuse to buy health insurance will face a penalty, but it is being collected not by a court, as with a fine, but by the Internal Revenue Service.  Therefore, it is as if a tax has been imposed, which you can get out of if you buy health insurance.

The bill itself never calls the penalties a tax, nor did its authors or President Obama himself (who specifically said it was not a tax).

Is this logical?  Is this a proper function of a court opinion, to construe a bill despite its wording so that it can pass constitutional muster?

Some people are praising Justice Robert for his Solomonic compromise.  Some conservatives are saying that at least he ruled against the overly-broad application of the Commerce Clause, which can subject just about everything to government supervision since just about everything has economic implications.  This was, in fact, the basis of the administration’s defense of Obamacare, that Congress can make laws regarding interstate commerce.  The court ruled that forcing people to buy something is not commerce, as such.  But since that argument was found specious, Justice Robert kindly supplied an argument of his own that he could accept, even though the administration’s lawyers didn’t make it.   Some Republicans are saying that, at least, defining Obamacare as a tax can allow them to score political points by attacking President Obama and the Democrats as having raised taxes.

But this strikes me as a very dangerous ruling.  What other behavior could the Executive Branch require using the tax code to enforce fines apart from the safeguards of the Judicial Branch?  Could General Motors get bailed out by imposing a tax on everyone who does not buy a Chevy?

Also, does anyone know whether the Affordable Health Care Act was initiated in the House of Representatives, rather than the Senate?  Tax bills have to begin in the House.  Maybe this bill did, coincidentally, have that origin, even though it was never presented as a tax bill.  If not, since the Supreme Court declared it a tax bill, I’d think it would have to have been.

At any rate, this strikes me as a crisis not only with the Constitution–with the executive, legislative, and judicial branches all mixed up and infringing on each other–but with language itself, creating new meanings (“tax”) for existing words (“penalty”).

The Wall Street Journal: A Vast New Taxing Power – WSJ.com.

We are a little world made cunningly

The ancients talked about the human body as a microcosm, as a little world.  Now scientists have shown just how true that is, how each of us is a world with millions of inhabitants:

They live on your skin, up your nose, in your gut – enough bacteria, fungi and other microbes that collected together could weigh, amazingly, a few pounds.

Now scientists have mapped just which critters normally live in or on us and where, calculating that healthy people can share their bodies with more than 10,000 species of microbes.

Don’t say “eeew” just yet. Many of these organisms work to keep humans healthy, and results reported Wednesday from the government’s Human Microbiome Project define what’s normal in this mysterious netherworld.

One surprise: It turns out that nearly everybody harbors low levels of some harmful types of bacteria, pathogens that are known for causing specific infections. But when a person is healthy – like the 242 U.S. adults who volunteered to be tested for the project – those bugs simply quietly coexist with benign or helpful microbes, perhaps kept in check by them. . . .

Already the findings are reshaping scientists’ views of how people stay healthy, or not.

“This is a whole new way of looking at human biology and human disease, and it’s awe-inspiring,” said Dr. Phillip Tarr of Washington University at St. Louis, one of the lead researchers in the $173 million project, funded by the National Institutes of Health.

“These bacteria are not passengers,” Tarr stressed. “They are metabolically active. As a community, we now have to reckon with them like we have to reckon with the ecosystem in a forest or a body of water.”

And like environmental ecosystems, your microbial makeup varies widely by body part. Your skin could be like a rainforest, your intestines teeming with different species like an ocean.

Scientists have long known that the human body coexists with trillions of individual germs, what they call the microbiome. Until now, they’ve mostly studied those that cause disease: You may recall health officials saying about a third of the population carries Staphylococcus aureus harmlessly in their noses or on their skin but can infect others.

But no one knew all the types of microbes that live in healthy people or where, and what they do. Some 200 scientists from nearly 80 research institutions worked together for five years on this first-ever census to begin answering those questions by unraveling the DNA of these microbes, with some of the same methods used to decode human genetics. The results were published Wednesday in a series of reports in the journals Nature and the Public Library of Science. . . .

Our bodies are thought to be home to about 10 bacterial cells for every human cell, but they’re so small that together microbes make up about 1 percent to 3 percent of someone’s body mass, explained Dr. Eric Green, director of NIH’s National Human Genome Research Institute. That means a 200-pound person could harbor as much as 6 pounds of bacteria.

There are about 22,000 human genes. But the microbes add to our bodies the power of many, many more – about 8 million genes, the new project estimated.

Those bacterial genes produce substances that perform specific jobs, some of which play critical roles in the health and development of their human hosts, said Dr. Bruce Birren of the Broad Institute of MIT and Harvard, another of the project’s investigators. Genes from gut bacteria, for example, lead to digestion of certain proteins and fats. They also produce certain beneficial compounds, like inflammation-fighting chemicals.

Another surprise: There isn’t one core set of bacteria that perform those functions. A wide variety can do the same jobs, the researchers found.

That’s fortunate considering people carry a customized set of microbes, one that varies dramatically depending on where you live, your diet and a host of other factors. Your microbial zoos also can change, such as when taking antibiotics that kill infection-causing germs as well as good intestinal bacteria that may be replaced with different but equally effective bugs.

“We don’t all have the same bacteria although they all seem to have been organized to do the same things,” Birren said. It may be that our lifestyle and environment “induces each of us to have arrived at a solution that works for us.”

With this first snapshot of what normal looks like, studies now are under way to see how the microbes differ in people with certain diseases, in hopes of learning how to prevent or treat the illnesses.

via News from The Associated Press.

Yes, this could be considered disgusting, but I agree with the researcher who finds it awe-inspiring.  So even individual human beings are actually a community of separate creatures.  Reminds me of the co-inherence of the Trinity.

P.S.:  Who can identify the allusion in the title to this post?  Without Googling it?

The new prohibition movement

The old prohibition movement sought to ban alcoholic beverages.  The new prohibition movement seeks to ban soft drinks.

New York City is considering banning large portions; Cambridge, Massachusetts, is considering banning soft drinks altogether.  See City Of Cambridge – CITY CLERK OFFICE, CAMBRIDGE MASSACHUSETTS.

What about diet soda?  Is it necessary to ban those, even though they do not contribute to obesity and diabetics?  If so, then I’m thinking the health reasons are just a pretext for some other agenda, I guess the impulse to ban things.  But it seems odd that the wave of the moment is to ban soft drinks.

A 12 oz. can of Coke has 140 calories.  A 12 oz. can of Budweiser has 145.  The good stuff has more than that, with Big Sky I.P.A. having 195.

A 5 oz. serving of red wine has 106 calories, which makes it much more fattening, ounce for ounce, than soda.  Distilled liquor has 105 calories per 1.5 oz., far, far more than soda.  So why doesn’t Mayor Bloomberg challenge the consumption of alcohol?  Why doesn’t the city of Cambridge, that ultimate college town, ban beer, wine, and booze if it is so worried about obesity and diabetes?

To be sure, the prohibition of alcohol didn’t work very well.  So why do governments think it will work so much better with soda pop?  (Can’t you just imagine the speakeasies and home-made seltzer operations that would open up, serving primarily 10 year olds?

There are other examples of people straining at gnats while swallowing camels when it comes to health issues.  There are those who would like to hound the tobacco industry out of business who also favor legalizing marijuana.  There are those who demand that their food be free of chemicals while they themselves use recreational drugs.

Testing unborn babies for 3,500 genetic disorders

Medical researchers have developed a non-invasive test that can potentially identify not just Downs but thousands of other genetic disorders.  That could mean thousands of other excuses for abortions.  And thousands of reasons for a government-run health care system to–someday–require them.

A team has been able to predict the whole genetic code of a foetus by taking a blood sample from a woman who was 18 weeks pregnant, and a swab of saliva from the father.

They believe that, in time, the test will become widely available, enabling doctors to screen unborn babies for some 3,500 genetic disorders.

At the moment the only genetic disorder routinely tested for on the NHS is Down’s syndrome.

This is a large-scale genetic defect caused by having an extra copy of a bundle of DNA, called a chromosome.

Other such faults are sometimes tested for, but usually only when there is a risk of inheriting them from a parent.

By contrast, the scientists say their new test would identify far more conditions, caused by genetic errors.However, they warned it raised “many ethical questions” because the results could be used as a basis for abortion.

These concerns were last night amplified by pro-life campaigners, who said widespread use of such a test would “inevitably lead to more abortions”. . . .

As well as testing for thousands of genetic defects, the scientists said their test could give a wealth of information on the baby’s future health.However, they warned: “The less tangible implication of incorporating this level of information into pre-natal decision-making raises many ethical questions that must be considered carefully within the scientific community and on a societal level.

“As in other areas of clinical genetics, our capacity to generate data is outstripping our ability to interpret it in ways that are useful to physicians and patients.”

Josephine Quintavalle, founder of the Pro-Life Alliance, put it more baldly.

She said: “One always hopes, vainly, that in utero testing will be for the benefit of the unborn child.

“But, whilst this new test may not itself be invasive, given our past track record, it is difficult to imagine that this new test will not lead to more abortions.”

via Unborn babies could be tested for 3,500 genetic faults – Telegraph.

HT:  Grace

Health care and “broken markets”

Here is a different argument for the mandatory insurance requirement in Obamacare from Donna Dubinsky:

The private insurance market does not function as a normal market. If you are not employed and you want to purchase insurance in the private market, you cannot unilaterally decide to do so. An insurer has to accept you as a customer. And quite often, they don’t. Insurers prefer group plans, with lots of people enrolled to spread the risk. Can you blame them? The individual consumer is a lot of work, is a higher risk and produces relatively little revenue.

The Government Accountability Office studied this problem last year and found a range of denial rates that vary by state and by insurer. On average, 19 percent of applications nationwide are denied. One-quarter of insurers denied more than 40 percent of the applications they considered. These denials are not limited to deadly illnesses but include many minor reasons. Expect to be denied if you have asthma, if you take just about any prescription medication, if you are more than 15 percent overweight. Expect to be denied if a doctor has recommended any procedure for you, no matter how insignificant. Basically, expect to be denied.

I’m astonished that this information was not laid out in oral argument and that no questions were asked about it. I believe that lawyers on both sides of this argument, and the justices hearing the case, have always been employed and always been covered by employer-provided health insurance. Perhaps it simply does not occur to them that if they were to try to purchase insurance, they might not be able to.

The justices repeatedly asked: If the government can require you to purchase insurance, what else could it require you to do? What are the limiting conditions to this breadth of control?

The government muffed its response. To me, the answer is obvious. There are two simple limiting conditions, both of which must be present: (1) it must be a service or product that everybody must have at some point in their lives and (2) the market for that service or product does not function, meaning that sellers turn away buyers. In other words, you need something, but you may not be able to buy it.

Let’s test the examples presented to the high court: Can the government force you to eat broccoli? This proposition fails on both counts. Nobody must eat broccoli during their lives, and the market for broccoli is normal. If you want broccoli, go buy it. Nothing stops you.

Can the government force you to join a health club? Again, double failure. You don’t need to join a health club. Maybe you should, but you don’t have to. And, if you want to join one, plenty of clubs would be happy to admit you. Indeed, can you imagine a health club turning people down because they are too fat, the way insurers turn people down because they are too sick?

How about burial services? While this example passes the first condition — it is a service that everybody will need — it fails the second. There is a clearly functioning market for burial services. If you want to purchase a burial or a cremation, no seller of those services will turn you away.

The health insurance market meets both criteria. Everybody will need health services at some point. And as long as the United States doesn’t provide national health care, the only reasonable method for most people to pay for those services is through insurance. But here, the market simply does not work. Sellers of health insurance turn away purchasers, and in great numbers.

Although the Affordable Care Act is huge and enormously complex, the point of the legislation is straightforward. It aims to fix the market for health insurance by prohibiting sellers of the service from declining buyers. Why did Congress not pass a simple law just requiring insurance companies to accept all applications? Because such a law would not repair the market and would probably make it worse. With only sick people seeking insurance — because healthy people would wait until they got sick, knowing that insurance was guaranteed — coverage would become overwhelmingly expensive and impossible for most Americans to afford.

The only answer is to expand the pool and spread the risk, which lets insurers have a rational business model. Short of government-provided health services or a government-sponsored national insurance plan, the Affordable Care Act is the next best shot at fixing this broken market.

via The case for Obamacare – The Washington Post.

Could you answer this argument for Obamacare?

Obamacare defenders taken by surprise

Even fans of Obamacare are admitting how poorly the administration lawyers handled the argument before the Supreme Court.  It is as if they didn’t anticipate the opposing arguments, much less prepare an answer for them.  It is as if they didn’t even conceive of how anyone could disagree with the goodness of the law.  From Rand Simberg (links to the quotes are in the linked article):

Having seen the transcripts of Tuesday’s hearing before the Supreme Court of the United States, I can only conclude that . . .testing their arguments against those of their political opponents. . .not only never occurred to the solicitor general or his defenders in the media, but that the very notion that their arguments had any flaws never crossed their minds.

In fact, even Mother Jones said that it was a judicial disaster for the government:

“Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

…Justice Samuel Alito asked the same question later. “Could you just -— before you move on, could you express your limiting principle as succinctly as you possibly can?” Verrilli turned to precedent again. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.”

The months leading up to the arguments made it clear that the government would face this obvious question. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything -— (say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him life lines, all of which a flailing Verrilli failed to grasp.

It apparently never occurred to him that he might be challenged on these issues. Why was he so unprepared?

For months we’ve been hearing from the usual suspects in the MSM about how ludicrous was the notion that it was unconstitutional for the federal government to compel someone to purchase a product, as though proponents of the proposition were advocating the legitimacy of slavery, or the notion that the government couldn’t prevent someone from growing wheat for their own use on their own land, or that it couldn’t prevent an individual from growing marijuana to treat her own cancer.

As evidence for their scoffing, they pointed out how that great constitutional scholar Nancy Pelosi was incredulous at the notion that there could possibly be an issue with it, or the more honest Democrat congressman (who somehow inexplicably later lost his election) who didn’t even think that it mattered. They also pointed out the sophisticated legal argument that it must be constitutional, otherwise its proponents would have actually put forth legal arguments supporting the case:

“That the law is constitutional is best illustrated by the fact that — until recently — the Obama administration expended almost no energy defending it.”

Could there be a more airtight defense? Perhaps, if one had a sieve.

All of this is evidence of the media/academic cocoon in which so many of these commentators live. It is a world in which it is unimaginable that Wickard v. Filburn may have been wrongly decided, in which there may actually be limits to federal power. It is unimaginable that the great solons on the Hill — Pelosi, Reid, Dodd, Frank — could possibly write a bill which might actually be unconstitutional despite its hundreds of pages that not one person read, and that we couldn’t possibly know what was in it until they passed it.

As a specific example of how completely gobsmacked they were, read “legal analyst” Jeffrey Toobin’s reaction to the hearing:

‘“This law looks like it’s going to be struck down,” he said. “I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.”’

Shocking, Jeffrey, we know. Just shocking.

Shocking, that is, to anyone completely unfamiliar with the founding document and the intent of the Founders. Sadly, this includes most people in the traditional media, on which too many continue to rely for their analysis. The White House could have avoided, or at least mitigated, this disaster by hiring the smartest opponents of the law to come in and do a moot court exercise against them, in order to prepare their advocate in advance. But, whether due to arrogance, incompetence, or both, it did not.

via PJ Media » The White House/Media Cocoon on ObamaCare.


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