A year-end look at Obamacare and the Supremes (So you won’t forget)

The heralded Supreme Court decision, in which a supposedly conservative chief justice would tie himself in legal knots to affirm the constitutionality of the biggest tax increase in US history, has surely been over-analyzed.  But, here’s a different take… For those in favor of the Patient Protection and Affordable Care Act (PPACA)—as it is formally known—our president and his policy wonks have fixed health care in the United States.

This view is based largely on the quite foolish notion that making insurance more available, albeit not necessarily more affordable, was somehow the biggest problem facing our failing health care system. Let’s try an analogy: Imagine for a moment that there were a horrendous crisis involving house fires. Destruction and injury were rampant. The root causes were manifold, and many people were dying.

Imagine further that the brilliant political solution to this problem did not involve hiring more firefighters, nor even any efforts toward fire prevention. Rather, the Government decided that more fire insurance was the answer. To spread the burden, even if you did not own a house, you still had to obtain insurance or face a penalty (sorry, a tax).

What if you really bought into this idea and decided to get a so-called “Cadillac” insurance plan? Well, then you would pay a penalty for that, as well. A massive bureaucracy would be put in place to ensure that any work done to fix your home had to be performed in accordance with certain guidelines and for a certain price. Don’t try asking for anything off the page.

Meanwhile, houses would continue to burn, people would continue to die, and the underlying situation would not be improved in any measurable way. Some home rebuilding “providers” would find ways to game the system, so the bureaucracy would have to expand to monitor the fraud, while making it even more difficult to get your home rebuilt, at an ever-increasing cost. Likewise, honest providers would simply gear their projects toward those home-rebuilding “procedures” which were more remunerative, rather than what might be best for the homeowner.

The only possible result of this madness is ever-increasing costs for ever-worsening outcomes.

Now, imagine you’re not imagining. Except that instead of a house fire crisis, we have ourselves a legitimate health care crisis, that is being addressed in this same manner.

As I have noted before, there is simply not enough money in the world—under any conceivable scheme—to support the prevailing disease care model (as used here and everywhere else) of health care. This model exists only because under the current rubrics, there is far more revenue in treating acute disease than there is in health maintenance and disease prevention. As such, elaborate chicanery and pettifoggery has to be put in place to at least give the illusion that a disease care model is sustainable. Thus…the huge tax increase—finally called what it is— that is the PPACA.

The decision, National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. took many people by surprise, but really shouldn’t have.

After all, the last time the Supreme Court overturned a major federal power grab was way back in 1935, with the case A.L.A. Schechter Poultry Corp. v. United States. With that case, FDR’s National Industrial Recovery Act was rendered unconstitutional. At issue were the separation of powers, and the draconian use of the Commerce Clause.

Ironically, in the current case, Chief Justice Roberts reasoned that the Commerce Clause would not apply, but the taxing power of Congress would. Thus, the Individual Mandate provision of PPACA—disapproved of by at least 70% of the public—would stand as a tax. 262 years after “No taxation without representation” was first uttered on these shores, is the new rallying cry “No stealth taxation with representation”?

Roberts implies that the remedy to an unpopular law is to vote the rascals out, but this is disingenuous in the extreme. If a tax increase can be labeled so after the fact, and the Congress has apparently unlimited powers to levy taxes, how is putting in a new bunch of scoundrels any remedy at all?

Here are a few choice remarks from the dissent written by Scalia, Kennedy, Thomas, and Alito…

[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.

We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

Misguided conservatives and would-be health care experts alike are trying to paint this disaster as a positive development. But, it most surely is not, and more’s the pity that the Government had every opportunity to fix health care, yet only made it worse.

14 responses to “A year-end look at Obamacare and the Supremes (So you won’t forget)

  1. Good to see you back on these pages, Mr. Shaw.

    The problem I have with your analogy is that health insurance isn’t insurance at all. It’s a third party payer system.

    The solution to the health insurance problem is to make it insurance. The best way would be to mandate a substantial deductible, like $3,000. Insurance should protect against risk of major loss; it shouldn’t pay for everyday medical care.

    It is my understanding that Obamacare bans high deductible insurance policies. Figures. And,of course, it does nothing toward tort reform, either. As far as I’m concerned, it is an Enabling Act, ceding dictatorial power to the federal government of 1/6 of the U.S. economy.

    • @Gamecock–

      Good points. Of course, any analogy eventually breaks down. The idea here is that it is called “insurance,” since the current plans are an outgrowth of what actually WAS insurance—back in the day—for catastrophic medical issues.

      The most egregious fault of Obamacare is that in all those billions, it does not provide for a single new doctor or nurse. On that basis alone, it should have been DOA.

      As I am found of telling anyone who will listen, Obamacare was obviously written by people who know nothing about health care.

      • Richard T. Fowler

        Mr. Shaw, you write, “The most egregious fault of Obamacare is that in all those billions, it does not provide for a single new doctor or nurse. ”

        As Rush Limbaugh has stated many times, the point of Obamacare is to fail, so that its multiple-payor system can be replaced with what the communists really want — their communist single-payor system which enables complete control over both providers and patients. That is why Obamacare looks so ridiculous — it is designed to fail, and that is by far its most egregious fault.

        So the idea is to keep both sides, liberal and conservative, squabbling about exactly how idiotic it is, just long enough for it to fail spectactularly … whereupon they will have the bill they really want ready and waiting in the wings, which they will unveil to great fanfare and urgency. And once again the American people will be told there is no time to waste, “This is an emergency” … we have to pass the bill NOW so we can find out what is in it.

        Sorry, but I fault my fellow conservatives. If there were a historically normal level of intelligence on our side right now, none of this would be happening. It would simply be unimaginable for us to be bested by such an utterly ridiculous plot. Yes, the moderates are very stupid too, now. But the plot is insane.

        There is no reason I can see that we could not have rolled up such a plot by now, if we had the brain power that we had in the 1950s. Shame on us for allowing liberalism to make us too stupid to resist it.

        Let us hope we can wake up more people quickly from their liberal-induced stupor.

        RTF

        • @RTF–

          Yes, of course, the entire enterprise is a massive govt power grab, that started in 1965 with Medicare. But, even to the uninitiated, the fact that billions can be spent, with no new providers, should have rendered this one dead.

          The fact that it didn’t, and the fact that Johnnie Roberts gave it his seal of approval just shows you how far down the road to Hell we have traveled.

  2. Top down command and control of a large complex system cannot work. That is if you mean by “work” to meet the initially stated goals and objectives. The primary reason is that the deciders need accurate and timely information to make their decision and then must process that information correctly to meet an objectively correct decision.

    For any sufficiently large complex system, the necessary information is minute in detail and astronomical in quantity. By the time that information is collected and organized for proper processing, it is obsolete and will result in correct decisions for the wrong circumstance. The next cycle of collecting the information will only make things worse because of the distortions of the first set of correct decisions for the wrong situation. The decision process runs off the rails almost as soon as it has begun and fails.

    The obvious “fix” for the top deciders, is to order the large complex system to remain stationary until the decisions are properly made. However, systems involving living beings cannot remain stationary in all respects and have the living beings remain alive. Hence, the originally stated goals and objectives being to “improve the functioning of the system” fails.

    Even assuming the best, brightest, well intentioned, and honest deciders, the above is inescapably true. What then if the deciders are the mine run governmental functionary who’s primary purpose is to remain in control and still have a job tomorrow? It doesn’t make a damn bit of difference, the approach fails. That is unless the original goals and objectives was the extinction of all living beings in the large complex system.

    Hence, because of the above reasoning, I conclude the flaws we see in the “new” medical care system are really considered features rather than bugs by the self same people who decreed that it shall be so. By accepting it, we are committing a slow and painful system wide suicide. I, for one, don’t view this as working. It is failure on a monumental scale.

    The best possible result would be for each individual to work out his own individual path within the system by mutually and voluntarily trading value for value, neither expecting nor giving the unearned. Such a system, partially implemented, resulted in the industrial and technological revolution we have experienced over the past few hundred years. Top down command and control has failed to deliver the goods of an increasing quality of life every time it has been attempted – even for those in the positions of power and control.

    • @Lionell–

      Interesting, and certainly deep. No doubt, the flaws that you and I recognize ARE “features,” especially since these exact people will probably not have to be part of the system, anyway.

      • I offer as an explanation for the inevitability of the failure a reference to the life and works of W.Ross Ashby (1903-1972). :

        In particular this extract from his Biography at http://www.rossashby.info/

        1952-1953 The Law of Requisite Variety

        “In October 1952, on page 4159 Ross stated the need for variety. By February 1953, he had a proof by inverse of the Law of Requisite Variety, and in November 1953, he asserted “Only variation can force variation down…”. Variety and Requisite Variety were to become important themes in his second book.”

        The complex system of the US involves some 360,000,000 individuals and all their possible variation of desires, values, actions, plans and reactions. The variations amount to many thousands per individual and they change in intensity and relationship on a time scale of fractions of a second. If the deciders fail to take into account ALL the variations as they are changing, they will fail. Taking them all into account as they change fast enough is impossible thus they will inevitability be increasingly behind the variations and fail no matter who they are nor the nature of their character or innate abilities.

        Top down centralized power and control of a large and complex system simply does not and cannot work except to destroy the system it is intended to control. Man or machine makes no difference. Humans and machines are as bound by Law of Requisite Variety identically as they are bound by The Three Laws of Thermodynamics.

  3. First off, the notion of cost-effective “health maintenance and disease prevention” is egregious. This is government regulation of personal life-styles, which of course include the latest food fads.

    Secondly, Roberts opened an interesting can of worms. If it’s possible to take an impermissible penalty and make it a permissible tax, the reverse is possible as well. How many taxes out there are actually penalties impermissible under the Commerce Clause? Lots of them. Lots of taxes are more ‘social engineering’ than just plain fund-raising schemes. Someone needs to open this flood-gate of tax/penalty litigation.

    • @bestruger1022–

      The idea is that what is being passed off as “health” care is anything but. it is nothing more than disease care. Of that, there can be no argument. I didn’t say anything about govt regulation of lifestyles, did I? However, since the price of food is completely artificial, maybe the Feds could subsidy fruits and vegetables, for example.

      How about tax deductions for health club memberships, in addition to those for massive medical expenses? How about bounties paid for kids losing weight?

      Your point about Roberts is well-taken, but there are very few Supreme Court cases where the govt loses. As stated, Schechter in 1935 was the last one.

  4. The claim that “there is far more revenue in treating acute disease than there is in health maintenance and disease prevention” is not true. Preventive wellness is the profit guiding machine behind much popular junkscience today, and embraced by those selling a gullible public on special health products, foods, supplements, pharmaceuticals, risk assessments and inteventions, for both alternative medicine and healthcare management companies. Preventive wellness is part and parsel of some of the biggest profits for health management companies.

    • @sandy–

      Perhaps I should have been more clear. Official “health” care spends next to nothing on preventive measures, compared to acute care. Still, it seems as if you are purposely misconstruing my point to make a semi-valid one of your own.

  5. re: power grabs: Over turning FDR’s National Industrial Recovery Act mmay have been the most recent overturning of a power grab, but the court didn’t do the same later in the case of the farmer growing and selling his own wheat(?). A rediculous application of the commerce clause and a HUGE power grab.

  6. I love it! Build a house out of steel? Nope only wood allowed now. Pfizer wood company will supply it.

    Yea I’m mad. I have the money and the intelligence to to make many of my own health care decisions but that ability is going away. I spend a lot on prevention but that means nothing to the bureaucracy. It doesn’t fit with the system. My prevention oriented doctors know their days are numbered.

  7. I agree 100%!! The Obama Care just makes me sick to my stomach.

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