Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

Main dynamic of Obamacare: Why the Constitution was written---not outside the powers of the Fed.

   "By late 1785, Madison recognized that individual states would never regulate commerce fairly.  States with active ports could not resist taxing goods from nearby states, while their neighbors retaliated in any way they could.  When three New England states tried to win concessions from the British by restricting their trade, Connecticut undermined them by aggressively promoting its own trade with Britain." Stewart, "The Summer of 1787," 2007, p. 8.

   The Articles of Confederation had proven to be a disaster for commerce. We need to be clear what "commerce" was in those days. Trade consisted of exports, primarily to England, and imports, primarily from England. If a State had a port, goods passed through that port and were taxed by local authorities. The citizens of New York benefited. People who lived in other States inland, did not benefit. They paid higher prices on goods. Commerce also consisted of trade across State lines. In 1785, George Washington met George Mason to discuss how trade between Maryland and Virginia, across the Potomac River, could be normalized. Washington's and Mason's meeting led to a call for a meeting in Annapolis. A dozen delegates arrived for that meeting, amongst them James Madison and Alexander Hamilton. From this meeting came the call for a convention to revise the Articles of Confederation.

   At the time, the average person lived and died within a 25-mile radius. If a person was born in Springfield, Massachusetts, her or his life would exist entirely within a 25-mile radius of Springfield. "Communication was slow in 1785. Capricious delivery arrangements made correspondence difficult. Distances were daunting as travelers floundered along bad roads and waited for unreliable ferries." Stewart, p. 4. Health issues were not a dominant part of the economy because people did not live as long as they live today. Life expectancy was 38.  Cancer is a disease of age---it takes most forms of cancer years to develop. Heart disease, too, usually takes time to develop. In those days people died of contagion, diseases related to ignorance (dumping sewage upstream in waterways from which people also drew their drinking water), if they managed to survive birth and the early years.

   Today, healthcare is unique as an aspect of our economy. As Justice Bader-Ginsburg wrote in her dissent in what people consider the Obamacare Case, "National Federation of Independent Business v. Seblius, 132 S.Ct. 2566, 2611 (2012):

   "And it is hardly just the currently sick or injured among the uninsured who prompt elevation of the price of health care and health insurance. Insurance companies and health-care providers know that some percentage of healthy, uninsured people will suffer sickness or injury each year and will receive medical care despite their inability to pay.  In anticipation of this uncompensated care, health-care companies raise their prices, and insurers their premiums. In other words, because any uninsured person may need medical care at any moment and because health-care companies must account for that risk, every uninsured person impacts the market price of medical care and medical insurance."  

   The Framers of the Constitution did not consider health care as an aspect of commerce. The Framers were concerned with trade in tobacco, indigo, wheat, rice and other goods. Had they, and their fellow citizens, all lived to theage of Benjamin Franklin, matters might have been different as to health care. Still, as one historian has written of Alexander Hamilton and The Federalist Papers, the work by Hamilton, Madison, and John Jay that put forward the arguments for adoption of The Constitution: "He wanted the Constitution to be a flexible document: 'There ought to be a capacity to provide for future contingencies.'" Chernow, "Alexander Hamilton,"2004, p. 256.

   We move ahead in time. The Constitution was ratified. Nearly 70 years passed and the Civil War was fought, in part to put to rest claims that States had "rights" to secede from the Union as those States pleased. The Civil War Amendments gave broader meaning and powers to the central government, through the Fourteenth Amendment. Industry had grown. With the development of railroads, people traveled farther in shorter time. It became necessary to recognize that "noon" in New York City was a different time at the same moment in Pittsburgh. The Constitution adapted. Powers were seen as inherent in the Commerce Clause and the Necessary and Proper Clause to allow the Federal government to reign in the "trusts" of the 1890s. After the Great Depression his, the Supreme Court gave more power to the Federal government to address economic problems through the New Deal. 

   One of many interesting passages in the Sibelius decision is in Justice Bader-Ginsburg's dissent. There she wrote:

      States cannot resolve the problem of the uninsured on their own. Like Social Security benefits, a universal health-care system, if adopted by an individual State, would be "bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. (citations omitted) (noting that, in 2009, Massachusetts' emergency rooms served thousands of uninsured, out-of-state residents). An influx of unhealthy individuals into a State with universal health care would result in increased spending on medical services. To cover the increased costs, a State would have to raise taxes, and private health-insurance companies would have to raise premiums. Higher taxes and increased insurance costs would, in turn, encourage businesses and healthy individuals to leave the State. ...Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured, even though solving that problem is in all States' best interests. Congress' intervention was needed to overcome this collective-action impasse."  132 S.Ct. at 2612.

   Given the huge sums this country spends on health care, the common agreement (it seems) that the system pre-Obamacare was a bust, and the strides Obamacare makes at least in part, we have to look at the bases for Federal power. Healthcare is interstate commerce. The industry relies upon machines manufactured in one State and sold for use in others. Healthcare corporations span the country. Insurance carriers have gobbled up competition, thanks to an exemption in antitrust laws, and rule the roosts in the various States. If a local problem has an effect on national commerce, that is sufficient to invoke the Commerce Clause.

   Today, Ryan Ripley and I will debate Obamacare, from 11 am to 1 pm. Matt Stone, of Indy Student, will join us to interject a few objective observations. Please listen to the podcast as it should be fun and enlightening.     


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