A Note of Apology

[anvi]

Doesn't France have its own unique form of mandates?  Employer and employee contributions to the national insurance funds are required by statute, aren't they?      

[Senator Sbane]

Aren't Medicare and Social Security taxes mandatory in the US?

[anvi]

Yes, of course.  But the French national funds are for everyone, not just pensioners. And so, effectively, the French tax system forces its citizens to buy coverage for themselves through mandated contributions adjusted to income levels, and covers citizens who can't pay at all.  I don't think the national sickness funds featured in Bismarck systems like France's will ever exist in the U.S., especially when even Democrats shoot down an analogous public fund with a low income eligibility cap, vastly limiting enrollment.  We've made the choice to use for-profit insurers in the U.S. (not my idea either), and so any universal coverage scheme in our country will require purchases of their coverage for the majority of citizens.  But, as noted, SCOTUS is about to lock that door too.     

[Torie]

What is wrong with private insurers competing for business, with subsidies on a means tested basis for the premiums? 

[Senator Sbane]

Because if you then mandate people buy from those private companies, they tend to get pissed off. And then the wonderful supreme court rules it unconstitutional!

[Torie]

Because if you then mandate people buy from those private companies, they tend to get pissed off. And then the wonderful supreme court rules it unconstitutional!

You forgot about the Torie finesse already?  Given that memory is the second thing to go, unless you are on the Torie regimen (which I assure you "works"), you are in trouble man. Seek help! 

[Senator Sbane]

Oh I remember it but it should be wholly unnecessary. It should have been done that way at the start but it wasnt and now the consequence of the supreme court striking it would be that nothing gets done. The Torie finesse, nor anything else for that matter, will get passed. Not in the short term at least and those with pre-existing conditions get thrown back to the sharks. I doubt anything gets done until the Democrats get full control again. The Republicans are too far gone to pass anything. I hope I am wrong.

[anvi]

What is wrong with private insurers competing for business, with subsidies on a means tested basis for the premiums? 

As I noted above, private insurers are the predominant payers in this country, so any solution that's going to work here has to work for them.  There's nothing wrong with the Torie-plan by me.  But you have to get Congress to pass it.  I genuinely wish you luck with that.

[Torie]

Well, with the Torie finesse having been available, one cannot blame SCOTUS for shutting down the concept of mandatory insurance (effectively). Congress gets the blame for going the disingenuous route for marketing purposes, in order to claim that no "taxes" were involved. Obamacare ironically was packaged as a cost saving measure. Who knew?

Don't be sad however. This issue has to be fixed. There is no other option to avoid the abyss. Be patient (quoted from Sam without copyright permission).   One thing that will force the issue is that I don't think the Medicaid all or nothing part of Obamacare packcage vis a vis the states getting Fed money will be struck down (if it is, that would indeed be a case of SCOTUS gone activist and rogue). That provision alone should cause enough fiscal chaos to get the ball moving again - in a hurry.

[anvi]

I guess what saddens me about this issue, Torie, is where our national priorities are in this debate.  We've got tens of millions of people, fellow citizens, in our country who lack health insurance entirely, and we have many thousands who die from treatable diseases every year because of long-term lack of insurance--these are facts.  And, laudably enough, you saying that we have to do something about it indicates that you are sensitive to that problem.  But, instead of being upset enough about that problem to do anything immediately, we are most upset about whether something is called a "penalty" or whether it's called a "tax," or whether something is called a "mandate" or a "requirement," ect. ect.  Don't get me wrong; I understand what you are saying about Obama's lack of political candor, and I agree with your derision of it, I really do.  But, if we're going to be so high and mighty about how "disingenuous" the Obama team was about their reticence to call penalties for the lack of insurance taxation, then just wait until your GOP friends in Congress hear the news that the subsidies needed to pay for poor people's premiums, especially in the environment of uncontrolled health care cost inflation, are going to need to be financed through higher taxes, and see what they say to the Torie plan then.  If we cared a tenth as much for our fellow citizens as we do for the labels we give to statutory tax provisions, I think we'd be a much better country.  That's what saddens me.         

[Torie]

I didn't write the Constitution, and I am not the one who has much if any interest in states rights anyway really anvi. But I am a lawyer, and I think per the law, SCOTUS really should strike down the mandate. Otherwise, the interstate commerce clause for the reasons I have outlined, has swallowed federalism alive (of which I approve as a policy matter), but that is not the job of SCOTUS. For that, one needs a Constitutional amendment - which I would support. So there you go.

[anvi]

I appreciate your comments, Torie.  You are a lawyer, and I'm not.  But is it after all fair to say that there is only one cogent legal view of this matter?  There are, after all, at least four expert jurists on SCOTUS who will probably vote to uphold the mandate.  With several hundred years of legal precedent regarding the Constitution, and with many different interpretations of what comports with the Constitution and these precedents, the members of SCOTUS, no matter who is in the majority, can probably come up with a legally viable defense of practically any decision they make.  On top of that, unless my ears deceived me entirely, Scalia made a number of overtly political comments in the remarks he made during oral arguments in this case.  SCOTUS too is a political body, not just a deliberative body, and its deliberations are often used to serve the purposes of the members' respective political orientations.  That's why confirmation processes have become as charged as they have, no?  This isn't anything new.  The day I think that any of the federal government's three branches is exercising actual unbiased deliberation in the service of solving a problem, I'll tune back in.   

[Torie]

Well in the sense it is not obvious what the interstate commerce clause means exactly in a modern complex interconnected world economically and every other way, that often requires common rules that "require" coverage of a larger and larger swath of this planet, anvi, sure, informed opinions can differ. But with the cross subsidy aspect of the mandate, and a lack of a clear limiting principle as to that piece, upholding the mandate would effectively gut federalism, and the notion that states can do some things the feds cannot.  That is a pretty big step - and an unnecessary one given the readily available finesse. Why should SCOTUS wrench and stretch the Constitution when the proponents of something just don't have the votes to do it right?

Anyway, that is why the mandate is one legal life support at the moment, with the real prospect that the plug will soon be pulled.