Read the darned Constitution, Mitt — it doesn’t give you that power!

For crying out (expletive deleted) loud, has anybody, anywhere freaking bothered to read the (bleeping) Constitution!!!

Mitt Romney, the Republican Party nominee for president, who, if he wins, will have to take an oath to uphold the Constitution, went on “Meet the Press” Sunday and blithely promised that, while he would seek to repeal ObamaCare, he also would like to keep health insurance coverage for people with pre-existing conditions.

You can quibble till the cows come home, as assorted media blatherers are today, about just how many people Romney’s plan would cover, but the point should be, but almost never is, what he proffers is simply on its face unconstitutional.

“I’m not getting rid of all of health-care reform. Of course there are a number of things that I like in health-care reform that I’m going to put in place,” Romney said on the NBC program. “One is to make sure that those with pre-existing conditions can get coverage.”

Romney also said he would allow “individuals to have policies that cover their family up to whatever age they might like …”

Never mind that this concept shreds, spindles and mutilates the very definition of the word “insurance” as a pooled risk business and turns it into a scheme for redistribution, it fundamentally defies the plainest language of the Commerce Clause. You know, Article 1, Section 8, Clause 3 of the U.S. Constitution that states, “The Congress shall have power to … regulate commerce with foreign nations, and among the several states, and with the Indian tribes …”

Telling an insurance company to whom it must sell its product, and presumably at what price, is not regulating commerce among the several states. It is dictating a transaction between private citizens, who should, under the Tenth Amendment, retain the powers not delegated by the Constitution to the federal government.

What Congress might have the power to do under the Commerce Clause — and the only say the president would have is whether to veto it — is pass legislation stating a resident of Nevada may purchase health insurance from an insurance company in, say, Massachusetts, even though that insurance policy would not cover breast enlargement or penisectomy surgery, which might be required by the Legislature of Nevada for in-state insurers.

For a refresher course on the Commerce Clause, we turn to our old friend Seth Lipsky and his book, “The Citizen’s Constitution: An Annotated Guide.”

Lipsky points out that the Commerce Clause was largely ignored and abused by FDR’s New Deal Congress, aided and abetted by a compliant Supreme Court under the threat of court packing by the president.

This gave us such abominations as the Agricultural Adjustment Act, under which farmer Roscoe Filburn was fined for growing more wheat for his personal use than the feds allowed. The argument was that had he not grow the wheat he would have had to engage in commerce and buy wheat. The Supremes bought that.

But the high court has since retreated in a couple of cases, Lipsky notes, specifically by negating the Gun-Free School Zone Act of 1990.

The high court ruled:

“To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. … The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated … and that there never will be a distinction between what is truly national and what is truly local. … This we are unwilling to do.”

Nowhere is Congress or the president granted the enumerated power to dictate individual business transactions. Maybe Massachusetts could do it, though even that is contrary to the spirit of individual liberty.


23 comments on “Read the darned Constitution, Mitt — it doesn’t give you that power!

  1. nyp10025 says:

    So COBRA protections are unconstitutional?

    And insurance is not an interstate business?

  2. Cobra might be a good idea, but it is only constitutional if it applies to interstate commerce as a federal law.

    Most health insurance, due to state mandates, defies the spirit of the Commerce Clause.

    Tax breaks for heath insurance should apply to individuals not just to companies.

  3. nyp10025 says:

    Very hard to follow that. First, I don’t understand how state regulations that require insurance plans to cover breast and prostate cancer “defy the spirit of the Commerce Clause” (whatever that is).
    Second, of course COBRA “applies to interstate commerce as a federal law.” If that is consitutional, then pre-existing condition requirements are constitutional.

    Romney’s problems is that requiring coverage of pre-existing conditions bankrupts insurance companies since people will not purchase coverage until they absolutely need it. The way to address that problem is with purchase mandates.

    Of course, Gov. Etch-a-Sketch backed off his proposal the same day he made it. So the issue is moot.

  4. That’s what happens when you start dictating to businesses what they can charge and what they must cover, Petey. You knock over all kinds of dominoes until no liberty remains.

  5. nyp10025 says:

    Mitt Romney enacted a perfectly fine health insurance program in Massachusetts. It now has a smaller percentage of its families facing the financial devastation of a medical crisis without adequate insurance than any other state.

    Yet when I drove through Massachusetts the other week it did not look at all like North Korea.

  6. States are supposed to be crucibles of experimentation.

  7. Steve says:

    The interstate commerce clause would apply if we could buy insurance from outside of our state. Then the feds could dictate what that insurance would cover. Win Win. Nyp and Tom have a beer and shake hands.

  8. Athos says:

    Any argument to government regulated health care dramatically increases the cost of health care?

    Health care should be disconnected from tax free Employee benefits. That would be a change in health care I would want to do. Health care should not be mandatory, anymore than food, or automobiles or retirement plans, or car insurance.

    Individuals MUST start taking responsibility for their own lives. Government does nothing but inflate the cost, and diminish the service. We’re not slaves, fellas.

  9. nyp10025 says:

    Yes – because buying medical care at the emergency room after you get run over is exactly like shopping for a car.

  10. Rincon says:

    Hear, hear Athos. Tax-free health care as an employee benefit sucks the entrepeneurship right out of this country. I’ve personally talked to several people that decided not to open their own business because health insurance would be too expensive – and because the risk of being unable to find affordable insurance would be too great if they developed a chronic health issue and then went out of business.

    As for health care not being mandatory, I’m OK with it as long as caregivers are granted the right to refuse care for anyone that cannot demonstrate that they have the means to pay. Our cockamamie bankruptcy laws make it foolish for a medical establishment to grant credit to high credit risks.

  11. […] other day I lectured the Republican presidential nominee on the enumerated powers of Congress and the president when he […]

  12. Athos says:

    Rincon, good suggestion! But you can only bankrupt yourself every 7 years. I personally had this happen 30 years ago, when my assets were so far negative, and my income was commission sales, that was the only option left to me by my creditors (the main creditor being an emergency surgery).

    Our whole system of debt collection is skewed. Companies sell the notes to collection agencies (for pennies on the dollar) and the collection agencies are relentless. Funny, though, how you can’t write off IRS debts (or state and city income taxes), eh? We do need new bankruptcy laws, but we’d be cutting into a big operation (with a lot of politically connected lawyers, etc. fighting us).

  13. nyp10025 says:

    Maybe I’m too much of a mushy liberal, but I don’t like the idea of Athos (even Athos) bleeding to death because he doesn’t have insurance and doesn’t have the money for emergency surgery. At the same time, it isn’t fair for people like Athos to fail to obtain health insurance and then saddle the cost on the hospitals, doctors and, ultimately, the other members of the community.

    Here is a solution: make sure people like Athos always have health insurance, so they don’t face bankruptcy over medical expenses (and so the rest of us don’t face the consequences of Athos’s bad decisions.) Subsidize part of his private health insurance so that he can afford it, but make him purchase the insurance, or else face a tax penalty.

    Is everyone OK with that? It forms the centerpiece of the health insurance reforms advocated and enacted by the current Republican nominee for President.

  14. Athos says:

    Oh great overlord petey! Such wisdom can only come from God on High! You have the blood of Kings running through your veins, and as such, should wield power over your appreciative subjects!

    We are not worthy, o’ great petey!

    Or, we could kick the feds out of the health care business, and let the hospitals, doctors work it out with their respective patients. Kinda like they did before LBJ sunk his Commie hooks into the American Society.

    You DO realize why I declared bankruptcy over $20,000 worth of medical bills, don’t you petey???

    Because I was flat broke, negative assets, no regular stream of money coming, AND nobody would loan me another dime. Bust out.

    The good news is, I stopped spending (and borrowing) more money than I could pay back, lived within my means, delayed gratification till I could pay cash for it, and now enjoy FICO scores above 800 (and no need to borrow money)

    Your way (Øcare plus Ø budget) will BANKRUPT THE ENTIRE COUNTRY, if we continue with your
    Utopian ways. But THAT’S what this little Marxist, anti-Colonialist wants, isn’t it, petey?

    Dreams of my Father, indeed.

  15. nyp10025 says:

    Before LBJ most seniors weren’t able to afford adequate healthcare. You and Romney/Ryan wish to return to that era of chronic poverty and suffering for millions of old people.

  16. Rincon says:

    It’s a fact that we’ve had socialized health care since I was born. Hospitals are required to provide health care at no charge for those that cannot afford it. The rest of us pay the cost in inflated medical bills. I consider this system unacceptable. It’s inefficient and unfair.

    We can either fix our so-called private enterprise system of health care or have government run it – both terrible choices in this country. Although many other governments seem to do a credible job, I wouldn’t trust our government with the job, but private enterprise brings its own problems.

    Because the difference in health care cost for say, a healthy 30 year old and an 80 year old are so astronomical, only ultra wealthy 80 year olds would be able to afford the actual cost of insuring themselves. Like it or not, there must be a generational transfer of money here – or we can just let the old, except the very rich, go without medical care. That would save a helluva lot of money.

    We also have to solve the problem that the lower classes are likely to just not buy insurance and declare bankruptcy if a crisis comes. What do they have to lose? Once again, the options seem to be to either care for them anyway or let ’em suffer – unless we adopt some regulations. So what’ll it be?

  17. Rincon says:

    There is one more problem with private enterprise health care that needs to be tackled: Health care does not lend itself to price competition. Two examples:

    In the Spring of 2007, more than 5 years ago, A Harvard study randomly divided 2287 heart patients with at least one severely narrowed coronary artery into two groups: One treated with medication only, the other with a stent followed up with state of the art care. The group without the stents had a slightly higher survival rate and slightly fewer heart attacks and strokes. Yet, according to Health News, the number of stents placed in this country did not change significantly in the ensuing 5 years. It’s also common knowledge that C-sections are done far too often and that many bypass surgeries are unnecessary. Newsweek’s August 22, 2011 outlined 9 common medical procedures that are vastly overused in this country. Why do insurance companies still pay for all of these procedures? Theoretically, they’re competing with each other.

    The drug companies have decided that the sky’s the limit when selling a drug to someone who’s dying. Another recent Newsweek article just out this month showed the cost of several new chemotherapy treatments. Many of these patented drugs cost on the order of $20,000 for every extra month of life saved (even if that month is spent suffering side effects). Forbes found 10 drugs that cost more than $200,000 per year for each patient. Let’s see how far they can take it. A million? two million? What’s to stop a company with a patent on a lifesaver from gouging everyone? It’s a difficult question.

    Remember when penicillin was new (me neither)? It was cheap! Those fools could have made a fortune – they also could have bankrupted the nation. Thank goodness they didn’t.

  18. People must have more skin in the health insurance games, Rincon. If they have to actually shop for cheaper care, it will get cheaper.

  19. nyp10025 says:

    Under the Ryan Medicare plan, I look forward to watching my 93 year-old uncle shop for the best combination of quality and inexpensiveness in cardiac stents.
    After he is done with that we can sit down with a dozen or so sets of insurance endorsements that he can carefully compare. I sure hope the endorsements are in 26-point font, because his eyesight is getting a bit foggy.

  20. Since medication works better than stents and are cheaper. Maybe he should go that route.

  21. Rincon says:

    That’s one more problem that I didn’t mention Thomas. Try calling a hospital or an emergency room asking how much they charge for something. I tried that once with a broken ankle. Three of three urgent care centers refused to give me any information at all. And that was with a broken ankle. Try shopping around for chest pain! Hard to shop when the prices are kept secret!

  22. Yes, Rincon, that’s because no one ever asks.


  23. Rincon says:

    So the uninsured never pay the bill at urgent care, even for minor medical problems? I guess that would include those of us with a deductible too.

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