Is there anything wrong with the U.S. Health Care/Insurance Bill?

The news is full of reports about U.S. health care reform. Congress and the President claim to have been working on this for a year. But I would argue that they haven't worked on health care reform at all. They've worked on health insurance reform, which is something else entirely.

If we were talking health care reform, we'd be looking at why a typical nursing home in Alaska -- Wildflower Court in Juneau -- charges a minimum of $15,000 a month for a single patient. We'd be looking at why the state-subsidized Pioneer's Home charges about $6,000 a month for an Alzheimer's patient. Is it the high salaries of the administrators? The mortgages on the buildings? The cost of malpractice insurance? In the case of private facilities, you can't find out -- they're almost all non-profits, and in most states, including Alaska, the books of non-profit institutions are closed to public review. Health care reform might start by requiring that for any health care institution enjoying the federal tax advantage of non-profit status, all costs, including line by line executive and employee compensation, be published as audited financial reports online.

But no, we're talking health insurance reform, the essence of which is to require all uninsured Americans to buy health insurance -- the very product the President has been criticizing as defective. I don't see how this does anything but exacerbate the problem. But more importantly, I don't see how it can possibly be constitutional. And that really concerns me.

We have a unique government, in which sovereignty is vested in the people; we cede certain powers to the states, and the states in turn cede certain powers to the federal government. It matters that the President and Congress act within the terms of the delegated powers. Every piece of federal legislation needs to be examined in that light. If Congress and the President only pay lip service to the Constitution, then we don't live in a democracy any more. And I may be old-fashioned, but I think that matters. I think it matters more than health insurance.

What's wrong with requiring people to buy health insurance?

1. Doesn't Congress have the power to regulate interstate commerce? This is the usual argument for Congressional authority. But the Supreme Court -- the umpires -- have always held that to be subject to the reach of Congress, an individual must have chosen to engage in the activity that Congress chooses to regulate, and that that activity must have a real effect on interstate commerce. Those who choose not to buy health insurance don't currently affect interstate commerce at all, because a federal statute prohibits the interstate purchase of health insurance, and there is no black market in this area. If this was changed so that there actually was an interstate health insurance market, the choice to not engage in the activity of buying the product at all would seem to be an absolute bar to Congressional regulation. They can regulate an activity voluntarily engaged in; they cannot constitutionally compel participation in it.
2. Doesn't Congress have the power to promote the general welfare of the United States? This is another argument sometimes used to support Congressional authority. But far from an absolute grant of power, this provision is in fact an introduction to the list of limited enumerated powers, such as the power to regulate interstate commerce. To be any broader would be difficult to square with the 10th amendment -- powers not delegated are reserved to the states or the people. If it really meant welfare in the sense of Welfare, there would be no limits on the power of Congress. But we know for a fact that the founders intended a system of limited federal power. In fact, if 'general welfare' was taken without the context of the list of limited enumerated powers, we could do away with the Supreme Court, because nothing whatever would be beyond the power of Congress. We wouldn't live in a democracy any more. Congress would have absolute power, and the states and the people would have no rights except those granted by Congress. But that's the British model -- you know, the ones we fought a revolution against?
3. Doesn't Congress already have the authority to take our money and spend it? Well, yes, the 16th Amendment clearly authorizes the federal income tax, notwithstanding those who frivolously claim otherwise. But a U.S. federal income tax is owed to the U.S. Treasury. The legislation at hand doesn't require citizens to pay a tax to Uncle Sam, who could turn around and buy health insurance for them. Instead, it requires citizens to send their own money to non-government entities -- health insurance companies. That simply doesn't qualify as an income tax. Congress seems to have lost the ability to distinguish between private business and government. That is actually frightening. Here's a bit of definition worth paying attention to:

   "... typically through the merging of state and business leadership ....

   This is part of the definition of fascism from the American Heritage Dictionary. The inability of Congress to distinguish government from business interests, in this case health insurance, is, in a word, terrifying.
4. Doesn't Congress have the authority to seize private property for public purposes? Well, yes. The fifth amendment clearly recognizes the power of Congress to seize private property for public purposes. That quite obviously includes money. But there is a condition: Congress must provide just compensation. Not insurance companies, mind you, but Congress. It is hard to see how the seizure of, say, $4,000 a year of your own money, in exchange for a private insurance policy with a $5,000 deductible, $10,000 out of pocket annual limit, can possibly qualify as just compensation for the seizure. The mere hypothetical that you might need hospital care so it's worth the amount hardly qualifies as actual, in fact, present day compensation.
5. Isn't your real objection that you're too lazy to work for a living so you don't have enough money to pay for insurance? Well, a lot of work in this country is uncompensated. If you are a spouse caring for the kids at home, your work is probably uncompensated. Of course, there aren't many cases of that now that average rents have reached $1,500 to $2,000 a month. But if you're a little older, you're probably having to care for elderly parents. When Alzheimer's enters the picture, that is a full time job; it does not allow for 'real' work. And it's not compensated. Not unless the parents are compos mentis enough to understand that you need some help to continue providing care. Suppose they pay $20,000 a year for your help. That may be a bargain compared to the $20,000 a month a nursing home might charge. But it's an uncertain gift. And it's not income. If you suddenly are required under penalty of law to pay $6,000 a year to buy health insurance you can't afford, what happens to the elderly parents you can no longer afford to help? Do they have to go a nursing home? I think I already mentioned costs in Juneau: $72,000 a year at the state subsidized Pioneer's Home, or a minimum of $180,000 a year at Wildflower Court, the only nursing home. So you can't care for your parents any more. The taxpayers have to pick up the $180,000 a bill (each), and you have to get a job to buy the mandatory health insurance, and a happy family is torn asunder. I would call that outrageous. And that doesn't even consider the situation of many Alaskans, who live a subsistence lifestyle, with quite literally no cash income, and with the nearest hospital over 1,000 miles away, accessible only by light plane. You're saying that's now illegal, and they are required under penalty of law to move to a city so they can get a 'real job' and buy health insurance?

   But more to the point, I would argue that being compelled to work for an income under penalty of law, to buy that mandatory insurance, is a violation of the 13th Amendment, which expressly bans involuntary servitude. This is being forced to work to benefit other people under some form of penalty. A better description of mandatory health insurance could hardly be imagined. See involuntary servitude in Wikipedia.

   I don't believe that the hypothetical availability of subsidies to help pay for insurance is relevant. I think the entire concept of compulsory health insurance under federal law is the most clearly unconstitutional federal legislation that has ever been proposed. I am crushed that President Obama is in favor of this. And for the record, I am a registered democrat, practically a socialist, and have been voting that way for decades.

This is a situation in which the Republicans are correct. The proposed legislation is completely outside our system of government. I fear it will pass. And I believe it it will cause catastrophic harm. There is room for health care reform, but individuals must retain their sovereign authority over their own affairs, in particular, the right to refuse to enter an insurance contract. In short, we should have the absolute right to make our own decisions, even if the government thinks they are bad ones, and even if the government is correct. That's the essence of a free people. And that is what the President and Congress are sworn to protect. Not our safety. Not our health. But our right to choose.

It just seems to me that however laudable the goal, a federal statute that is completely outside any reasonable reading of the Constitution should not be upheld. If the legislation passes, I hope that the U.S. Supreme Court hears an appeal as soon as possible. A unanimous decision that this is outside the authority of Congress and reaffirming that their power is limited in actual fact would be the best outcome possible. But you never know. Should they uphold it as constitutional, I hope that their decision explains this in a way that any American who actually reads the decision with an open mind can understand.