What Conservatives And Liberals Miss In The Healthcare Debate


This week, the news has been abuzz over the oral arguments before the Supreme Court on the Affordable Care Act of 2010. Regarding the individual insurance mandate at the core of the bill, there are a two major misconceptions to clear up, one for our conservative friends and one for our liberal friends. As anyone who has compared Fox News and MSNBC coverage of any issue can attest, media has become increasingly polarized the past few years. Fox is the de facto Republican news channel, MSNBC is the de facto Democratic news channel. For those looking for a moderate news channel, CNN doesn’t much help: putting James Carville and Karl Rove on television together doesn’t magically make what comes out moderate and objective. On the contrary, the increasing sensationalism of CNN is laughable at best, dangerous at worst.

The current state of mass media aside, it’s not difficult to understand how when it comes to such a polarizing issue, there could be misconceptions about the personal mandate that fall on partisan lines. Conservatives have been trying to paint the picture that a personal mandate is a direct attack on liberty, and that health care is best approached through a free market system. However, it’s possible President Obama’s personal mandate is constitutional. Health insurance, as a product, most certainly goes across state lines, and thus could be regulated by Congress. The Supreme Court in Wickard v. Filburn has ruled that one’s inaction, if it affects the market, can be regulated: “it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

The big jump comes when considering whether or not forcing people to buy health insurance is constitutional. In nearly every state, citizens who drive are required to buy car insurance for the vehicle. One could argue that it’s fine to mandate auto insurance because not everyone has to drive: you can drive on your own property without insurance, and driving on government infrastructure (roads) allows the government to regulate such things. The same, however, does not carry over to health insurance. If you show up at the emergency room with a life threatening injury or ailment, the hospital is legally required to care for you, regardless of whether or not you have health insurance. If you can’t pay, the costs get passed on to the rest of us in the form of higher premiums. Enacting a personal mandate simply takes care of the free-rider problem that is already inherent in the system. Sure, there is a liberty argument that one shouldn’t be forced to buy a product. However, since everyone will eventually use health care, by failing to buy health insurance they are forcing others to buy their health care for them, and thus there is a common good argument as well (and one Justice Roberts recognizes). An individual has an impact on the health insurance market regardless of whether or not one purchases health insurance.

Additionally, forcing citizens to buy something through Congressional mandate is not entirely unheard of, nor an affront to the Founding Fathers. As the New England Journal of Medicine points out in an article published in defense of the health care law, “in 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.” In sum, I think conservatives need to realize that health care, as a product, is unique in that it affects everyone (as Justices Kennedy and Roberts conceded), and a reasonable case in favor of the personal mandate could be made. Anyone, of course, is welcome to disagree with that case, but it’s not as if making the argument is antithetical to the Constitution, nor does it make someone simply a liberal idiot.

On that note, however, liberals need realize why conservatives are concerned. Depending on how the Supreme Court interprets the personal mandate, it could fundamentally change the relationship between government and individuals. Without going so far, rhetorically, as Justice Scalia does in saying such a ruling could allow the government to force citizens to eat broccoli, it does open the door to the government taking a more involved role in our private lives. Justice Kennedy’s comments helped frame the issue well. Liberals need to understand that, if taken from the conservative perspective, the personal mandate fundamentally changes the relationship between the individual and government, and thus requires a very heavy burden in order to remain constitutional. I don’t believe the hyperbole that affirming the mandate would in turn allow the government to force us to do any number of absurd things. That being said, conservatives raise a very important point. If it were to be deemed constitutional, the ruling must be very deliberate in stating that the nature of health insurance makes it a very unique product in the free market, and because of its unique place in the market it is constitutionally permissible to mandate and regulate it.

22 comments on “What Conservatives And Liberals Miss In The Healthcare Debate”

  1. This depends on how you wish to view the constitution. Is it composed of words of inordinate significance? Is it composed of words that mean something? Our the rights and duties it provides absolute? Or is it some wishy washy “flexible” argument to fall prey to whichever etymological fallacy we wish to apply at any given time simply because “things change?” It is my opinion that constitutions are absolute. They are to be plain and easily understood by the people (as our constitution was intended.) Nobody should question what our rights are and the words should not lose meaning. They are to be as clear as possible so we don’t have questions such as these.

    If they are to be flexible, then we really have no rights at all – as is exemplified with Wickard v Filburn. The government has the power to throw them all away with a handful of catch all clauses whereby they can make us do whatever they damn well please: The commerce clause, general welfare clause, supremacy clause, and necessary and proper clauses can justify ANYTHING!

    If you go back and read your constitutional history, and of keen interest would be the Federalist Papers, you will quickly learn that the intent of the commerce clause is not to apply regulations to commerce, but to make commerce regular between the states. It is a product of the founding fathers observing the county system in Europe and looking to avoid trade wars. The purpose of the commerce clause wasn’t to tell us what we could and couldn’t do on our private property for self-sufficiency as judges rulled in Wickard, it was to allow South Carolina to transport its goods through North Carolina unmolested. Nothing more, nothing less. It wasn’t to order the State of South Carolina to produce less tobacco because it was effecting supply and commodity prices in North Carolina.

    The commerce clause, as it has been rendered in Wickard v. Filburn is completely debauched and stands against many of our other rights and the principles upon which our forefathers fought for independence. It is a result of judicial intimidation, the threat of court packing, and the views of people who, quite frankly, did not give a crap about the real words or meaning of our constitution in the first place. It was instituted and decided upon by people who simply wanted to impose their subjective will upon a populace at all costs, and viewed the proper mechanism for bringing about such changes – the amendment process – as an abhorrent inconvenience to pursuing progress. The antiquated judges who gradually changed their opinions from similar cases over time did so only via threat from the executive branch.

    To the people who ruled on W v F, the words of the constitution did not matter. And since that time period there has been ever growing tide of ignoring intent, and changing the meaning of words to conform with one particular agenda or another. To even go so far as to completely ignore plain language in the incorporation process. Rendering us all, and our states, with few if any tangible rights at all. They can all be thrown away due to the opacity of language the supreme court has produced through their precedents.

    Later you speak of a free rider problem. As cold as it may seem, the solution to the free rider problem is to allow the free rider to ride as he may through the result of his own choices and actions. If he chooses not to purchase insurance and has no assets or income to pay, the hospital should not be mandated by the force of government to treat that individual. One unjust law does not suffice to beget more unjust law.

    Healthcare does not explicitly affect everyone. Only through the laws of socialization does it begin to negatively impact the rights of others. Furthermore, health is largely a result of individual choices – the costs of which – should not, under any circumstance, be socialized. Whether it be through the application of a single payer system, or a mandate to purchase a commercial product. Smokers, drug addicts, alcoholics, people who are obese, teenaged mothers, welfare queens, prostitutes, the Duggards, racecar drivers, sky divers, people who drive too fast, X-treme sports enthusiasts, etc. These are all people who make conscious decisions to do things that objectively harm their individual health. These individual decisions and life choices result in their own individual negative health consequences. These consequences should not be passed on to the rest of us. Not in the form of overt socialization, nor in the form of mandates to spread load the costs they incur. The worst part about this is that once you socialize the costs, you immediately open the door to regulation of those behaviors. People should be able to live their lives as they want – with or without insurance – but they should have to subsequently pay for the choices that they make so that the rest of us are not taken down by their decisions. Freedom comes with the danger of making a bad decision.

    Your last comment is worded poorly is well. “I don’t believe the hyperbole that affirming the mandate would in turn allow the government to force us to do any absurd things.” Absurdity is subjective. It is absurd to me that any government would force its citizenry to purchase anything when viable mutually exclusive alternatives exist. To include healthcare. Wickard v. Filburn is an absurd court decision. In all reality its precedent, thanks to debauched viewpoints on what constitutions are, grants leeway for the government to perform such absurd actions prima facie. The allowance is already granted. So what you should say is that you don’t feel they will act upon that allowance. Telling someone that they cannot grow wheat on their private property for personal consumption because they won’t purchase it from other farmers and therefore effects interstate commerce is utterly absurd. In essence it says that everything you do within your property to be self-sufficient, that could be done by some other laborer, is open to government regulation as it, and its masters, see fit. It means that you’re only as free as Leviathan allows you to be.

    1. Your logic seems sound, but too simple. It fails to recognize that not all people who require healthcare result from choices they make. There are many high cost diseases (cancer, ALS, type 1 diabetes; to name a few) affecting many people who have made “right choices” and otherwise live “healthy lifestyles”. Then you also fail to recognize people who live “right” lives and due to circumstances beyond their control, cannot afford regular healthcare, let alone health insurance.

  2. I don’t have to recognize people who live “right”, but have pre-existing medical conditions. They lie independent of my arguments. They are not a bundled package. I think it is reasonable to presume that we can simultaneously address free rider problems, allow people to live freely without the socialization of costs associated with individual actions as they pertain to healthcare, and socially care for those who have no means of caring for themselves due to no fault of their own. Such as – an orphaned child with Down’s Syndrome, or kids with diabetes in poor households. The thing of it is, the more direct we are about addressing free riders and people who’s actions burden down the system, the better able we will be to treat people with pre-existing conditions and help the people in genuine need.

    I would be weary of an individual like Ezekiel Emmanuel, Donald Berwick, or Robert Reich using those with pre-existing genetic conditions as an excuse to socialize the entire the system in its totality. Once you socialize the costs of healthcare there are seemingly no limits to government impositions into our lives. It grants them a ticket (or a tyranny of the majority a ticket) to regulate whatever action or thing they want. Sugar? Soda? McDonalds? Red Meat? Extreme sports? Playgrounds? Mandated Exercise? Prohibition? “Sin” taxes? Limits on the number of children you can have? It becomes another Wickard V. Filburn. A license to do whatever Leviathan wants.

    1. the difference between mandating health insurance coverage and mandating something like exercise is that if you fail to exercise you don’t make it any more difficult for others to exercise. the same is not true of health insurance – if you are uninsured and get sick, everyone else has to pay for you. in this way, the individual mandate was the end of a massive entitlement program (which is why it was originally thought up by the heritage foundation and proposed by Newt Gingrich as an alternative to Clinton’s proposed reform). if everyone is covered, neither the government nor other insured people have to pay for the uninsured’s medical care through either higher taxes or higher premiums of their own. i’m with you that mandating broccoli consumption is ridiculous…but suggesting that upholding the individual health insurance mandate could lead to a broccoli mandate is just as ridiculous

  3. Actually, there is no difference between the two – you draw an irrelevant conclusion. If you don’t purchase insurance you can become a free rider and impose unnecessary costs to the system. Government wishes to force people to purchase insurance as a means of reducing costs to those that are currently paying into the system. If you do not exercise you put your health at risk, and whether you belong to the insurance pool, or reside as a free rider, you are increasing the costs of the overall healthcare burden and effecting (as nebulous as it is) interstate commerce. And just as government wishes to force people purchase insurance under the guise of reducing costs to those who pay by creating this mandate, they can also mandate you to exercise for the purpose of reducing the costs of those who are paying (which will be everyone.) In either case, not exercising increases you chances of getting sick, and everyone will be forced to shoulder the burden through either increased insurance premiums or increased costs at the point of administering the healthcare you need.

    There’s no point bringing up the fact that Heritage and Newt proposed this in the first place. Or that Romney instituted it in Mass. They are no different than Barack Obama, Kathleen Sebelius, Donald Berwick, Cass Sunstein, or any of the other progressives who seek to manage society. Newt Gingrich is a manager. Flat out, no questions asks. He, like Barack, wants to manage your life and manage society. Imposing this was a means of Newt granting himself the ability to manage an ever growing percentage of your day to day activities (and also utilize law to funnel money to insurance companies.)

    You may think that it’s ridiculous that the mandate could lead to a broccoli mandate, but it’s a free ticket to do all of the other things I’ve listed. Many of which mothering progressives have attempted in this country: sin taxes on alcohol, ridiculous taxation on tobacco products, the banning of happy meals, the proposition for soda taxes, the banning of trans-fats, all done in the name of cost control. There are some other very powerful things government could do in the name of cost controls that would be extremely effective it lowering the overall costs with see today. And once you start mandating, by law, that we purchase a product, you then open the door to a fickly populous to actually seek out ways of reducing the costs that have now been mandated upon them.

    Think it won’t happen? I wouldn’t hold your breath.

    1. aside from the fact that the colloquial phrase ‘don’t hold your breath’ means that you don’t expect it to happen for a long time, if ever, the similarity you describe only assumes that people don’t have health insurance. if you’re a fat slob and refuse to exercise but you have insurance, then your weight problem is only your problem and will be reflected in the insurance company’s estimation that you will cost more to insure – leading to higher premiums for you and no one else. if, on the other hand, you refuse to exercise AND refuse to buy insurance, then your inactivity (in more ways than one) is now my problem as I am paying your hospital bills in MY higher premiums.

  4. I’m not sure you understand how insurance works, or how government regulates it. What you describe isn’t exactly true, as laws such as HIPAA, “Guaranteed Issue” laws at the state level, Guaranteed reissue laws, COBRA, and “rate bands”, create a system where you do not pay into the system according to the risk you impose.

    In short, when it comes to health insurance you do not pay according to your risk to the system in any absolute sense.

    I won’t repeat my argument about how one unjust law does not beget more unjust laws. The issue you should be taking up is the law requiring hospitals to treat people regardless of their ability to pay which becomes your problem when you pay your hospital bills and higher premiums.

    1. group rates are generally a decisions made by an employer, not a government. and the laws requiring hospitals to take in poor people is not a governmental law, it’s the hippocratic oath that every doctor has to take in order to practice medicine.

  5. Individual policy selections may be made by the employer, but they are mandated to provide group insurance via COBRA and HIPAA. I presume you are not familiar with the Emergency Medical Treatment and Active Labor Act (a part of COBRA)- a government law that requires hospitals to take in poor people because hospitals weren’t taking in poor people, they were patient dumping.

    1. and you think that law is a bad thing?

      ok, let’s say that you do consider that law a bad thing, why would you? because those poor people have no way of paying for the health care they receive. but if they have (private) health insurance…?

  6. As a libertarian any law that compels someone to do something that doesn’t directly violate another person’s rights is a bad thing – primarily because such laws violate the rights of people. Compelling someone to take care of someone else’s needs whether they like it or not – even healthcare – is essentially slavery. Is it not? I walk through the ER door with a broken arm, and you, Jon Green, are obligated to treat me by law? Seems rather authoritarian and draconian does not? What happens when the supply of healthcare laborers is halved? Do I have the right to then force people into the medical industry to treat my “ER walk in” needs because providing healthcare is such an obviously good thing? Or do I merely get serviced when those avaiable laborers “get around to it?” Or do we just shift the burden of costs by force of government to ensure supply of labor meets demand?

    One might think that a better alternative solution would be for the person of able body and mind to gain employment on their own that either provides the health insurance they desire, or enough compensation to provide for their healthcare needs on their own. This would also allow those of us of sound mind and body to better care for those in genuine need.

    The way it sounds now, our benevolent unjust law of forced servitude without compensation (or forcing others to provide compensation) is being used as the excuse to push an outright unjust authoritarian mandate. Which will undoubtedly be used as an excuse for the next round of mothering, authoritarian, but always benevolent, legislation.

    Just out of curiousity, did we happen to catch wannabe social engineer in chief Ezekiel Emmanuel on Bill Maher Friday and the language they used in their conversation? You are animals to be prodded with this mandate. Nothing more, nothing less.

    1. again, the hippocratic oath isn’t a governmental thing…it’s a medical thing. if you have such a huge problem with it, go to your nearest hospital and enlighten the doctors about the false consciousness they’re living under, but don’t pretend that it’s the leviathan out to get you.

  7. Do you understand why laws are erected? Any law? It’s because people don’t behave in ways that we would like. Hopefully they are for reasons where one person is violating another person’s rights.

    In this case, doctors weren’t acting as we’d like. Read: They weren’t following the hippocratic oath and were widely engaged in patient dumping. If doctor’s and medical personnel followed it with no questions asked there would have been no need for legislation would there? But they weren’t following their oath, so we used tyranny of the majority and our emotions and forced folks in the medical services industry to do as we demanded, and forced them to treat people regardless of their ability to pay – whether they liked it or not.

    1. so you live in a society, congratulations. i think our disagreement comes from whether we treat a person as their own island or a person as one of many. if you value absolute person freedom so much that you would ignore your responsibilities to your fellow citizen, i invite you go to live in a cave where you can be totally removed from your community…but you’ll probably have to drive there on roads financed by your neighbors. one person does not have the right to nullify the wishes of the society that they live in just because they say so, ESPECIALLY when that nullification means turning away sick people who need medical care.

      i mean, seriously. society is just supposed to let them die? that seems like a violation of their rights to me.

  8. No, I don’t think it’s a difference between treating people as an island or one of many. That’s a false choice that has many middle answers. It’s a difference between coercing people with force via tyranny of the majority (or even tyranny of a minority), and allowing them to act as their own agents helping one another as they choose, and living their lives as they see fit in a free society so long as they do not explicitly harm other people. That has absolutely nothing to do with a one man island or whether you examine society as a whole. When you take the route you espouse here, people become a means to an end that exists as a subjective universality. I view people as the end itself with infinite variance in hopes and dreams that should have the latitude to pursue them as they see fit.

    It’s just an awful tired strawman to say something like, “if you believe in freedom so much, go live in a cave and remove yourself from your community.” It’s a false choice too, and ignores why societies form in the first place. Societies and economies form as a means of helping one another so that we can collectively live more comfortable lives. It’s plenty viable to pursue individual pursuits of happiness while respecting the rights of others in a free society. The Elizabeth Warren social contract where, since we live together, we have rightful have access to whatever we wish from others simply because we share the same space, is utterly absurd, and again, predicated entirely on emotion. It divides society, creates a recipient class and a productive class, where the recipients ride free at the expense of the productive classes labor.

    And you’re looking at it from the wrong perspective. One person does not have the right to enslave another for his own comfort, desires, or needs. Regardless of what the situation is. Positive rights do not exist. Just because society wishes to have something does not at all mean that they have a right to access it. Whether it be sick people in need of care or not. Again, if I am sick and in need of care, at what point do you think I have the right to force you or anybody to care for me? That’s not how society works. Society works where we freely exchange stuff for other stuff. Society has no room for free riders or a recipient class.

    Allowing someone to die is not a violation of rights in any, way, shape or form. Murder is a violation of rights. Manslaughter is a violation of rights. If you see someone get hit by a car and you choose to continue driving even though you could save his/her life you haven’t violated that person’s rights. It may be immoral and unethical, but it’s not a violation of any rights.

    Your utilization of roads as a public good is an is-ought fallacy and presumes that if government hadn’t built the roads, that roads would not exist. So only by the existence of a government monopoly do you get make this ridiculous assertion when in all reality the private sector would likely maintain our roads better, and do it for less money than the Department of Transportation.

      1. Jon,

        This article doesn’t act as a rebuttal to much of anything I said, nor really contributes much to what you’ve said. Much of it is also off topic. Is there anything specific in here that you think is a counterpoint or adds to any of this?

        Do you really want a point – counterpoint response?

        1. read the part about state of nature and why governments construct safeguards and guarantees re: social capital and mutual exchange.

  9. Would you like the long rebuttal, or the short rebuttal? Would you like it here, or in the other post to your article?

  10. See, the problem is that I fundamentally disagree not just with the ideology you present in your article there, but the very foundation of your logic. It’s my opinion that you make a plethora of fallacies there and grossly abuse language, and it’s really difficult to to describe all of these items without getting long-winded. But it’s difficult to point out individual arguments without tackling the whole thing.

    First, I think your idea of mutual reciprocity in nature and how it applies to modern American society as it exists today is completely absurd. If you and I were to wake up tomorrow alone in the world, it would indeed be in our best interest to cooperate and reciprocate between one another for safety and mutual benefit. But if you are responsible for keeping us safe at night, hunting for our rabbits, and fetching our water, and if I’m responsible for reading bed time stories and lounging around, you’re not going to tolerate my obstinate nature for very long. You won’t be gaining anything through that relationship. You will be working twice as hard for your slice of comfort, and I will be a free rider at your expense. You will quickly recognize that our arrangement is actually explicitly hurting you, and you will quickly leave because your self-preservation is jeopardized by our societal relationship unless I offer you something in exchange.

    Mutual reciprocity includes something more than merely taking up space in society. And what you suggest in your article is that one may merely take up space in society to gain benefit of a “basic floor” that you admit comes at the expense of others. This is not interdependence, it is not in our long term interest, and it certainly doesn’t demonstrate reciprocity between all members of society. It is mere redistribution. It doesn’t even call into question what a free market arrangement would entail, or the value the our jobs carry. The wage you earn is the mutual exchange – the arrangement between consumer, owner, and employee.

    Social capital is an abstract term that has no concrete definition.

    I fundamentally disagree with everything you say about the purpose of government and how it acts throughout modern history. I’ll leave my reply to that in your article if you care to read it. But suffice to say that this goes back to my original post, what rights really are, and how government acts. Government no longer acts with bounds. It does not act as a moderator. It does not act as an agent to protect the rights of people. When you say “we” and “society” it isn’t a universal truth and is an awful, disingenuous, rotten way to frame an argument because it suggests that this is how we all feel. Well it’s not how we all feel. It’s a reflection of majority status, and is vacant of an argument justifying the position in the first place. It’s an ipso facto argument you make wrapped in absolute language. In short – it’s really bad.

    I will propose this idea to you. In our situation above, where you and I are alone, you have the power to make me an ultimatum, “Chris, you either start doing something for me, or I’m going to leave you and you will be on your own.” At what point do I have the right to declare, “No, you won’t leave, you will stay here, and you will continue taking care of me, because I’ve declared that I have the right to a ‘basic floor’ which includes a rabbit, water, and safety at night, I read you bed time stories every night, they provide you with comfort and allow you to sleep at night, this is contribution enough to our arrangement.’ Would you tolerate this? Because this is what you’re saying in your article about the propensity of those programs. That I can go work at Taco Bell, wrap burritos all day, and enjoy whatever self (or collectively) determined “basic floor” that I (we) want. And regardless of its sustainability or the societies feasibility of producing it. It is like this: WE’VE declared we have the right to a basic floor whether YOU like or not. But in all reality you would say something like this in our scenario – “You are of sound body and mind, it is a burden for me to care for you because you can take care of yourself, there are mutually exclusive alternatives for you to do in exchange for my rabbits, water, and night safety. I will trade with you once you offer me something of similar value to my water, rabbits, and safety. You can join society when you wish to meaningfully participate, until then I have no duty to care for you in any way shape or form.”

    To this end, in modern society we have access to a free public education that you describe in your article. While the quality may vary, I think we would agree to this point – that if a child of sound body and mind sits in class, meaningfully participates, does their homework, and studies a bit, that they will be able to get accepted to a college, or succeed in a trade school. From there they will be able to take care of themselves without your social net that provides the “basic floor.” The basic floor can then be reserved for those who can’t take care of themselves – the handicapped. If the option exists and is available for a person to make a sound living, then they have no right to declare themselves a basic floor at the expense of someone else – that is immoral, unethical, and dictatorial – it is as I described above – slavery. And that is essentially what these progressive healthcare proposals involve. The establishment of “basic floors” REGARDLESS of what these people contribute to society in contrast to what they COULD provide society. It has nothing to do with social capital, reciprocity, the social contract (anybody’s social contract theory), mutual exchange, or government “guarantees”. It’s just redistribution of one mans property into another man’s property. It is something popular. It gets votes. It is tyranny of the majority.

    It is not your “island” mentality that breaks society down. It is the, “we’re setting up our own floor at your expense whether you like it or not regardless of what we contribute, and we’re gonna use the force of government to expropriate your property to do so” mentality that breaks down and fractures society. It is my obstinance in the above scenario that fractures our relationship. It is not your desire to not be burdened down at my lack of achievement and effort.

    1. yeah again, i think we’re just talking past each other at this point. i think we understand where we’re both coming from and just completely disagree.

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