Episode 5 of the "Consider This!" podcast is out today and it’s all about a single topic, so I thought I’d post the script here for those who don’t do podcasts. If you do do podcasts, click here for the show notes and ways to subscribe, or just listen, to the show.

I mentioned previously that while the individual mandate was struck down as an exercise of the Commerce Clause, it hung in there as an exercise of the taxing authority of the federal government. That is to say, the way it was sold to the American people, and the way the Obama administration is continuing to try to defend it, is unconstitutional. By being given the authority to regulate commerce, Congress cannot force you to engage in commerce so that they can then regulate it. However, if arranged in a way such that you have to pay a tax if you don’t comply, well then it’s all hunky-dory. So then, when you hear Democrats insist that the mandate is not a tax, as they have been saying, remember that they are therefore arguing that it’s unconstitutional. They’re trying to have their mandate and eat it, too.

The main reason they’re arguing that it’s not a tax — going against a Supreme Court ruling that they are ostensibly in favor of — is because of the legislative ramifications. A tax can be repealed on a bare majority vote, and is not subject to a 60 vote Senate filibuster. This makes it much easier for, say, a President Romney and a Republican House and Senate to repeal. I would have thought that trifecta tough to accomplish this November, but with this ruling, I suspect a fire is going to be lit under many a conservative, and I hope that this translates into votes. I think Democrats, too, see this scenario as more plausible today than it was before the ruling, which is why they’re trying to make this particular hard sell. Billy Mays, the TV pitchman who used to try to sell you so many handy items, would be proud.

If you insist, against the advice of the Supreme Court, that the Commerce Clause should be good enough to implement a mandate, consider this. The intention of the clause itself was a negative power; a preventative, restraining one. It was written so that there was an authority to appeal to when there were trade disputes among the states. It was never intended to be a positive power by the federal government; one that allowed it to act on its own. Those aren’t my words. Those are James Madison’s. But hey, he’s just what some people call The Father of The Constitution. What would he know?

It’s said that the US House of Representatives holds the power of the purse, since spending bills must originate there. The purse referred to is the money the government has, but with this ruling, it now includes your purse. If they call it a tax, the federal government can now force you to buy anything it deems good for you, or, if not for you, then for people it thinks need your money more than you do. One of my Facebook friends, who is all for ObamaCare, said that the government already has control over my money, by subsidizing one thing and not subsidizing or banning another. Two things about that. First, if you don’t like the fact that the government limits your choices like this (and you probably shouldn’t), why are you in favor of this? Why should the government be telling you what to buy? If you don’t want government playing favorites, why do you wholeheartedly agree with government forcing this particular purchase? This sounds something like, “Don’t take an inch, but if you want a mile, I’m cool with that.”

But the second thing, and the biggest problem with this, is that limiting your choice when buying something is entirely different than requiring you to buy something. With limited choices, you still at least have a choice not to buy it. But with health insurance, that choice is gone. It is a fundamental shift in Congress’ hold over your money. And another thing. Democrats argued that, since we all get sick and health care is something we’ll all need sooner or later, the new application of the Commerce Clause would have been OK. A mandate like that would only be used on something that everybody would buy. However, the new arrangement, where this is yet another tax, has no such limiting principle. There is no requirement that such a tax, that requires you to buy something, be only for something Congress thinks everyone would get anyway. But try this out. Everyone buys food, so now they can tax you if you don’t buy the foods they want. Think that’s outrageous and would never happen? Let me ask you this. If Congress can mandate that you buy health insurance because, in the long run, it is expected to bring down costs for everyone, then that logic applies to any number of things. Remember, if the government is responsible for the bill, the government now gets to determine how that money is spent and how to control costs (even if those controls don’t actually work). To use an example brought up in oral arguments, if some study somewhere shows that the consumption of broccoli, or whatever, makes for lower health care costs down the road, what’s to keep them from a Broccoli Mandate…excuse me…Tax? Far-fetched? It was far-fetched to suggest the government could make you buy anything until ObamaCare came along. If the only limiting principle is “Well, they would never do that”, then you’ve not thought this through enough. There’s a bigger picture to be seen. The law of unintended consequences is waiting in the wings, rehearsing its lines. Your intentions, as good, honorable and honest as they may be, are not enough to keep it off-stage for very long.

And then there are those that say that Republicans want to take away all the things that ObamaCare would give. Some even have said that they want to go to a “purely” market-driven model. However, an 18-month-old web page should clear those misunderstandings up in a jiffy. Yes, 18 months. It’s been on the Internet that long. You know the Internet. All the cool kids have been talking about it.

A Facebook friend of mine, Bertis, is a guy I was a camp counselor with about, what is it, like 25 years ago. Yes, ladies and gentlemen, I’m old. He’s not, but I certainly am. We’ve discussed political stuff back and forth on Facebook, and have done so for quite a while now. Recently he asked me, “On you show could you explain the difference between this” (meaning ObamnaCare) “& the version that republicans 1st proposed. I figure it would be very informative.” He’s right, it is. The link to gop.gov is in the show notes to a page that has been around since at least January, 2011, but probably longer. It has 5 specific promises listed, 4 of which are cost-controlling measures and one that is a policy statement. The economic items are tort reform, the ability to purchase insurance across state lines, expanding Health Savings Accounts, and ensuring access for patients with pre-existing conditions. The plan has been around for a long time, and it would make insurance more accessible without granting the government absolute power over your spending habits, nor upending an entire industry.

Filed under: DougEconomics & TaxesGovernmentHealthcareJudiciary

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