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As to whether the supreme courts of particular American states, or republics, should be able to declare the general (U.S.) government’s health-insurance mandate unconstitutional in the sense of being an encroachment of the government of the union beyond its enumerated powers, it is typically presumed that the U.S. Supreme Court is the rightful and proper umpire--the court of last resort on disputes on federalism applied to particular legislation. Forgotten is the argument made by Thomas Jefferson against that court’s suitability owing to its institutional conflict of interest in contests between the U.S. Government, of which the U.S. Supreme Court is a branch, and a goverment of one of the several states.  Typically, we do not consider how the conflict of interest can be solved. We do not “think outside the box.” Rather, we feel resigned to have branch of one of the parties of the dispute act as the final decider short of a constitutional amendment.

We do not consider, for example, that perhaps a council of the States’ Supreme Court Chief Justices (or their attorney generals) might be a less problematic alternative. We need not throw up our hands and leave it to any state to nullify any federal law it doesn’t like. We can design an umpire of federalism in such a way that the the encroaching tendency of the center is counterbalanced by the interests of the states in deciding the question. That is to say, we ought to design the umpire mechanism in such a way that tilts in the direction of the states, given the tilt of power in the other direction historically and today. It is well worth reviewing Jefferson’s argument so this doesn’t sound so radical. Given our aversion to real change, the need for a constitutional amendment must be backed up by a mainstream figure.

Essentially, Jefferson maintained that there is a conflict of interest in one branch of the US Government–the US Supreme Court–being the ultimate umpire in federalism disputes between a State and the US Government. It is like having a member of one of the two baseball teams playing being the umpire. In college, I was a referee for intermural football. I was stunned when the coordinator of the refs, himself a student, assigned himself to referee the game involving his own fraternity. When I suggested that there is a conflict of interest in his self-assignment, he dismissed my concern out of hand. Sadly, this sort of attitude characterizes Americans in general with respect to institutional conflicts of interest in our government (and between business and government). I contend that we are blind to such ethical problems, and the viability of our federal system of public governance, which includes semi-sovereign States, is paying the price in the form of a massive imbalance.

One might counter that the separation of powers in the US Government make the US Supreme Court independent of the Congress and President. According to Thomas Woods, the separation of powers in the federal government cannot be relied on to distinguish the US Supreme Court’s interest from its basis as a branch of the US Government because the “three federal branches can simply unite against the independence of the states and the reserved rights of the people.”[i] In 1825, Thomas Jefferson wrote, “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”[ii] Jefferson believed that in a dispute between the states and the federal government, the resolution should not come from a branch of the federal government. With the US Supreme Court as the umpire on federalism questions, the states “would inexorably be eclipsed by the federal government.”[iii] Woods observes, “(S)ince the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters? The [US] Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government’s actions, is itself a branch of the federal government.”[iv] For one thing, US Supreme Court justices are selected by the US President and confirmed by US Senators. In this process, even an unconscious “similarity of perspective” is likely to be sought or welcomed even with respect to one’s vantage-point (i.e., perspective). Spencer Roane, a Virginia judge whom Jefferson would have nominated to the US Supreme Court, wrote, “the States never could have committed an act of such egregious folly as to agree that their empire should be altogether appointed and paid by the other party. The [US] Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members… . The [US] Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate… . They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.”[v] As a branch of the Federal government, the US Supreme Court justices have at the very least a perspective from the “whole”–meaning the US as a whole–which is the vantage-point of the US Government. This is a background basis of similarity; the nominating President and the confirming Senators are likely to ask questions of a nominee that would show the nominee’s attitude or opinion concerning the power of the US Government (i.e., the power of the President and Senators!). The conflict of interest is clear, yet no one points to it. This is very odd indeed–tantamount to a societal blindspot.

Not unexpectedly, the US Supreme Court has consistently and overwhelmingly decided federalism cases in favor of the US Government. Even the Morrison and Lopez cases on the reach of the interstate commerce clause in the 1990s allow for indirect economic effects from such commerce to justify the jurisdiction of the US Government over those of the States. An indirect effect is just the sort of loophole that the US Government has been using to expand its power. So even the Rhenquist court was pro-US Government vis a vis the States. Joseph Desha, governor of Kentucky in 1825, wrote, “most of the encroachments made by the general government flow through the [US] Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors.”[vi] What amazes me is not so much the historical trend; rather, I’m bewildered by how such an obvious conflict of interest could be allowed to fly for so long under the radar screen of American public consciousness. This really should tell us something about ourselves, and we ought not to be flattered by what we see.


Click to add a question or comment on the ethics of the Supreme Court on federalism cases.

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[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 4.

[ii]Thomas Jefferson to William B. Giles, December 26, 1825, in The Writings of Thomas Jefferson, vol. 10, ed. Paul L. Ford (New York: G. P. Putnam’s Sons, 1899), 355.

[iii] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[iv] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[v] James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 156.

[vi] State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longman’s, Green, 1911), 113.

The mandate to buy health-insurance may be an unconstitutional encroachment of the U.S. Government onto the liberty of its citizens. Furthermore, the rigid federal rules in the health-insurance reform law of 2010 may represent yet another way by which the state governments have been rendered servile in begging Washington for breathing room--and in a domain that may be rightly theirs, constitutionally (i.e., extrinsic to the enumerated powers assigned to the U.S. Government). The bigger story in this jurdical piece on health care is perhaps whether American federalism itself was finally being extirpated and expunged in favor of consolidation. Yet even if Americans were becoming aware of what had been a tendency for over a century, it is far from certain that they would want to do anything about it.

Ken Cuccinelli, as the Attorney General of Virginia, brought a suit challenging the US Government’s penalty for people not having health insurance (starting in 2014).  Henry Hudson, a US district court judge found that Virginia’s suit had merit and so should not be dismissed because no court has ever ruled on whether it violates the US Constitution for the US Government to require American citizens to purchase a product. “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate—and tax—a citizen’s decision not to participate in interstate commerce.”  By mentioning interstate commerce, the judge was signally that federalism is the real issue (rather than simply limited government in the US). ”This lawsuit is not about health care, it’s about our freedom and about standing up and calling on the federal government to follow the ultimate law of the land — the Constitution,” Ken Cuccinelli said. “The government cannot draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause.” This clause has been one of the principal ways in which the US Government has expanded its powers onto hitherto state powers. In an interview on August 2, 2010 on Fox, Ken Cuccinelli said after the ruling that if the US Government can stretch regulating interstate commerce to include inactivity (i.e., someone not engaged in commerce), there is no limit to the power of the US Government—meaning its enumerated powers are effectively nugatory as a constraint.  He said that if the US Government can get away with using “regulating interstate commerce” even against people not engaged in such commerce (directly or indirectly), federalism in the US is dead.

I found the announcement of the death of American federalism to be stunning, even though I am aware that the balance of power has been shifting to the US Government from those of the several states since at least 1860. Given this trend, I wonder if federalism isn’t rendered null and void already—from the sheer power already amassed by the US Government and the resulting appendix/implementation role of the state governments.  Perhaps if the US Government wins its cases against the States that are suing on the health-insurance mandate, the American people will finally realize that the horse has left the barn.  In addition to providing a governmental check on the US Government, federalism has the advantage of being able to accommodate the diversity that is inevitable in a union of states the size of countries.  The EU, for example, consists of states the size of the American states. It is natural for such a union to be diverse.  A consolidated US should be a baleful sign for the EU as it struggles for “ever closer union,” lest one size is put on all there too.  In general terms, pressures from the consolidation of an empire-scale union tend to build from the inherent hetergeneity. Such pressures can be relieved by dissolution, as in the case of the USSR, or by revolution. It could even be said that the fall of the Roman Empire could be explained by its stymied condition due to its consolidation. One size does not fit all at the empire-level, and the EU’s 27 states and the US’s 50 states constitute that level. Were the US President more oriented to the long-term viability of the American system of public governance, he would have maintained that health-care policy is in the sovereign domain of the states and used the bully pulpit to influence as many of them as he could. That way, there would be a bricollage of heath-care systems to chose from.  Before the US Government passed health-care reform, an American could get universal coverage by living in Massachusetts or a private-sector system by living in Texas.  To conflate these two societies into a muddled compromise does both a disservice. To work, federalism requires a degree of toleration whereby people in Texas are free to have a different system than the one I prefer. Ultimately, it is our lack of tolerance (which is really selfishness) that has killed our federalism. I hope the Europeans are of better character—and more aware of what is happening around them, before it is too late.

The irony here is that I am actually for universal health-care! To the extent that the private sector does not reach universal coverage, I believe that the government is obligated to stand in toguarantee the human right to medical care being fulfilled.  Just as the Coast Guard does not make its rescues contingent on a boater's character or decision to go out during a hurricane warning, seeing that each person in a country legally has a sustenance level of housing, food and medicare care irrespective of effort or character follows from the value that is inherent in any human being, unconditionally. The human right to survival is based on the pain involved in being without shelter, food or medical care when it is needed. Humans are self-aware sentient beings capable of knowing they are in pain. Existential pain, such as in the fear that one might die without medical attention, is intolerable for a human being. If a society of humans can relieve this anxiety, it should--based on the human right not to suffer such pain. This human right is akin to that which precludes torture.  Such treatment is simply beyond the pale of what a human being ought to suffer.

Given the sordid practices of American health insurance companies (such as pre-existing condition and otherwise ending coverage when people get sick—as if buying insurance were only for the good times), I do not believe that the companies should play a central role in the American health-care system. They are tailor-made for the wealthy, who may want (and can afford) health-care beyond that which every citizen should have a right to by virtue of being a human being in a civil society (i.e., social contract). To conflate the extra (i.e., unnecessary) aspects of health-care with those that are germaine to living is perhaps the category mistake at the core of relying on discreet private companies that include and exclude.

In the American context, the particular republics, or states generically-speaking, that constitute the union are the relevant polities. Both constitutionally and in terms of federalism theoretically, the diversity inherent in the empire-scale union can and should find expression at the state level.  According to The Wall Street Journal, President Obama announced at the end of February, 2011, that he "backed a bill in Congress to let states design their own ways to expand insurance coverage sooner under the health-care overhaul, in a nod to governors' complaints that federal rules [were at the time] too rigid." Specifically, the bill would move up to 2014 a part of the 2010 health insurance reform law that would otherwise take effect in 2017. That part allows states to develop alternative health insurance systems of comparable coverage that insure as many people as under the federal law. The governor of Vermont, Peter Shumlin (D) said that the change would make it easier for his state to develop a single-payer plan, under which the state would be the central funder of healthcare. This plan would eliminate the inefficiencies involved in having several private health insurance companies, each of which would be inherently oriented to excluding people deemed "inconvenient" (meaning costly). A feeding machine cannot help to feed; its very nature so determines it to feed. So too, for-profit companies are inexorably profit-seeking.

In terms of federalism, the bill proposed in early 2011 represents a move in the direction whereby federalism can accommodate the diversity inherent in an empire-level political union. However, that the governors were put in the position of having to complain about strictures from the US Government regarding a domain that is properly theirs (assuming providing or mandating health insurance is not one of the enumerated powers) and beg for permission to accommodate their particular circumstances is an indication that American federalism is actually a top-down conditionally (from the top) partially-decentralized consolidated system.  As an alternative, the states could have been free to develop their own systems, with the U.S. Government (ideally with the Governor's Association as the legislative chamber in Congress representing the states) establishing a floor or minimum standard. Of course, it could be argued that if health care is a human right, then universal health-care irrespective of means is that floor. Even so, as in the EU, the member states of the US could be charged with implimenting universal health-care in which ever ways they see fit. This comes close to the bill proposed in early 2011, but the American health-insurance law does far more than set a general directive or standard for the states to implement as they see fit. If the floor is less than universal coverage, then the flexibility could more fully accommodate the diversity that is inherent in the United States.

In spite of my bias for my ideological position on healthcare as a human right, I recognize that the majority of the citizens of Oklahoma might disagree with me. That Oklahoma is a polity (and sovereign in its domains) means that it can and should play a role in determining what constitutes human rights. Oklahomians should have the sort of system that matches the ideology expressed by their majority (or super-majority). To say otherwise would be to violate their political right to self-determination. Moreover, it would ignore the American republics that constitute the United States and treat that political union as akin to France or Germany, which are states in another union, the E.U. Indeed, those two states a bit smaller than Texas and Montana, respectively.

As the US is an empire-scale union made up of country-scale (and semi-sovereign) polities, we cannot afford such a mistake. I have to understand what the United States are even as I pontificate on my health-care ideology.  Sadly, this step is rarely evinced by my fellow Americans.  As Sandra O’Conner, retired justice of the US Supreme Court, once said: “Congress is acting like a state legislature.”  I asked her: why don’t you restrain them?  She replied, “It takes five of us.”  That is, it takes five justices to agree to “just say no” to yet another encroachment by the US Government.  Were I to press the justice, I would have pointed out that the US Supreme Court is a branch of that government, and thus that court has an inherent conflict of interest in ruling on conflicts between that government and those of the states. Separation of powers within the US Government (between the branches) notwithstanding, there is still a US Government interest that its three branches share.  Not surprisingly, the overwhelming number of US Supreme Court decisions on federalism have been for the US Government’s position.  In other words, our federal system has a fatal flaw in its very design. I contend that this flaw has made possible, and perhaps even facilitated, the death of American federalism.

Sources:
http://www.foxnews.com/politics/2010/08/02/judge-permits-virginia-health-care-law-challenge-continue/?test=latestnews

http://video.foxnews.com/v/4300198/virginia-suit-against-health-care-law-to-proceed

Janet Adamy, "Obama Offers Skeptical Governors Bigger Role Under the Health Law," The Wall Street Journal, March 1, 2011, p. A4.

The US Senate is “absurd.” So said Katie Connolly of MSNBC in 2010.  She was referring to Sen Shelby (R-AL) being able to singlehandedly place a hold on all pending nominations.  Citing a congressional scholar, Johathan Chait noted that a blanket hold has never been used before. Connolly argued that Shelb was doing it “because he wants a European corporation to build some planes in his state.”  Such a reason would be ubiquitous if not squalid enough in either body of the US Congress, so it is certainly plausable.  One might recall the money Sen. Ben Nelson got for Nebraska by agreeing to the health care reform bill.  In needing all 60 votes from the democrats and two independents, that bill gave us all a reminder of what an international body is like where each member has a veto.  In singlehandedly blocking all pending nominations before the US Senate, Sen Shelby was drawing on this theory as well.  While it is easy to trounce on each Senator (or each state) having a veto, I would argue that it is far less sordid than Shelby’s reason (i.e., more pork).  Because every state in the Union is semi-sovereign (and enjoys residual sovereignty as per the tenth amendment), there is constitutional support for any state represented in the US Senate having a veto on any legislation or appointment.  Because the veto is based on governmental sovereignty (i.e., the US Senate being in this respect an international body—unlike the US House), Alabama can use its veto even for reasons we might find disgusting.

So if each Senator (who represents his or her state as a political body even though he or she is elected by the citizens of his or her state) having a veto makes the US Senate “absurd” (and I join with those who are frustrated by it), we might want to consider the consequences that would be involved in depriving the political members of the Union of their vetos in the General Government (ie., Washington).  We could expect an acceleration in the consolidation of power in the General Government at the expense of the state governments—resulting in one size fits all in a heterogenous empire-scale Union (i.e., empire).  Any state government objecting to Washington taking over yet another domain of power would be powerless to stop that train without breaks running down the tracks toward a central state.  Meanwhile, that train would be able to pass more legislation through the US Senate, further accelerating its speed.

Some time back, I asked Sandra Day O’Connor of the US Supreme Court why she wasn’t objecting to the US Government going beyond its enumerated powers.  She replied to the small group that Congress was acting like a state legislature.  Disgust was palpable in her voice.  In a sense of futility, she added that it takes five on the US Supreme Court to have a majority decision (meaning that a majority would not go along with her on the enumerated powers matter).   You might be wondering what is wrong with Congress acting like a state legislature. The problem is that the US is in scale (and its make-up) commensurate with an empire by today’s standards.  In other words, most of our states are equivalent to countries.  You just can’t (or shouldn’t) run a combination of countries as though it were one country.  For one thing, a combo is inherently diverse.  Also, its center is further from the people.  It means less democracy or republican principles of representation because there are far fewer US Reps and Senators than state Reps and Senators.  Also, the US Government is designed as an empire-level polity.  Whereas the states’ Senates represent citizens (just as the states’ assemblies do), the US Senate (unlike the US House) represents political entities (the states) rather than US citizens.  In other words, both US citizens and US states are members of the US.  The US Government isn’t fashioned like a state government because the Union is a combination of such states (whereas a state is not a combo of republics in turn).

So we ought to be very careful about kneejerk reactions to fix the “absurd” US Senate.  To be sure, holding up appointments to get pork is squalid even by a pig’s standards, but turning the US Senate into a state senate would drastically alter what the US are.   Even though we use “the US” as a singular noun, the entity itself and its government were formed and designed with it as a plural noun (the states) in mind.  The US constitutional convention delegates invented modern federalism to suit this new genus of an empire: the Union.  The EU has since come into being along similar principles because it is of the same genus.  To treat either the US or EU as though it were commensurate with one of its states would be to treat something other than what it is.  That can only lead to a downfall.   So perhaps rather than change the US Senate to fit our understanding, we might alter our understanding to fit what the US are. This would entail taking the pressure off of the US Senate by returning most of the domestic legislation to the state governments (where there is more democracy).  Consider the coherence in having the US Senate  mainly involved in foreign policy (and regulating between the states) and having a filibuster (which is close to the principle of international organization).  That is, the state governments meet in the US Senate technically on an international basis. Moreover, the U.S. Constitution forms a hybrid between or composed of international and national governance.  This unique situs fits with the empire-scale of the United States, especially as they have expanded to fifty. 
Treating the US Senate as a state legislature…legislating on everything from healthcare to education…is a gross departure from this coherence.  It is indeed absurd—only we have the arrows reversed.  It is our use of the US Senate that is absurd—not the Senate’s principles (even though they can be abused, such as by Nebraska and Alabama). Treating the US Senate (and the Union) as other than what it is can only lead to the fall of our empire…our Union of States. To be sure, every empire that rises must fall.  So why write?  I’m merely trying to stay the fall a bit, but the outcome is certain.  In the meantime, let’s not help it along.  This will take more humility and much less presumptuousness in what we think we know about our system of public governance.  With more humility, perhaps more of us will be content to get involved in our state governments.  As it is, we overlook them and advocate changing the US Senate into our own image of what it should be, presuming the extant Senate is "absurd" (perhaps it is sheer hubris to make such a summary judgement?).
Source: http://blog.newsweek.com/blogs/thegaggle/archive/2010/02/05/need-more-evidence-the-senate-is-absurd-look-no-further.aspx

In 2008, drug companies raised the wholesale prices of brand-name prescription drugs by about 9 percent, according to industry analysts. That added more than $10 billion to the nation’s drug bill, which was on track to exceed $300 billion in 2009. By at least one analysis, this was the highest annual rate of inflation for drug prices since 1992. “When we have major legislation anticipated, we see a run-up in price increases,” says Stephen W. Schondelmeyer, a professor of pharmaceutical economics at the University of Minnesota.  A Harvard health economist, Joseph P. Newhouse, said he found a similar pattern of unusual price increases after Congress added drug benefits to Medicare a few years ago, giving tens of millions of older Americans federally subsidized drug insurance. Just as the program was taking effect in 2006, the drug industry raised prices by the widest margin in a half-dozen years.  “They try to maximize their profits,” Mr. Newhouse said. However, the drug companies claimed they were having to raise prices to maintain the profits necessary to invest in research and development of new drugs as the patents on many of their most popular drugs were set to expire in a few years. The drug makers were proudly citing the agreement they had reached with the White House and the Senate Finance Committee chairman to trim $8 billion a year — $80 billion over 10 years — from the nation’s drug bill by giving rebates to older Americans and the government. However, if realized, the price increases in 2009 would effectively cancel out the savings from at least the first year of the Senate Finance agreement. Moreover, some of the critics claimed that the surge in drug prices could change the dynamics of the entire 10-year deal. “It makes it much easier for the drug companies to pony up the $80 billion because they’ll be making more money,” said Steven D. Findlay, senior health care analyst with the advocacy group Consumers Union.

My analysis:

That the firms were trying to maximize their profits ought not be viewed as  new thing.  That is what they do.  To expect a shark not be be a feeding machine is at the very least highly unrealistic.  It is not fair to the shark that was designed to feed.  If a shark is able to feed, it will.  If a drug company is able to charge more for its products, it will.   It is interesting that the question of motive is deemed relevant.  I myself wonder whether the price increases are really motivated by the anticipated expirations of patents or the $80 billion to be paid as part of the health-care reform.  Can I trust the self-serving explanation of the firms in the face of the experts’ studies of historical price patterns before major pieces of legislation affecting the industry?  A shark will feed; we don’t ask about its motives.  Were a shark to have reasons, they would be whatever furthers its feeding. Whether it is lying would be irrelevant.  In fact, the normativity of truth-telling would not register, as it does not have a taste-element.   We project onto the shark when we presume a motive or that a normative judgment is pertinent.   If the shark can feed, it will.  It is a feeding machine. Social responsibility does not make sense to a feeding machine or to those humans in their capacities in running the machine. For them, it is a technical matter. To realize the wider social goals through business, the wider goals must be put in line with the feeding incentives. As the umpire and protector of the chessboard, the government can structure the rules of the game--and there must be rules for any game--such that the incentives match. The question is perhaps whether the rules might function as nets and suffocate the sharks, or channel them as mighty yet dangerous swimmers.

If we as self-governing citizens do not want the sharks to feed on a given plant, we could make it very costly for them to do so. Simply forbidding them is apt to be disobeyed, and thus costly to enforce. Telling them they shouldn’t feed on something tasty simply does not make sense to a shark. They will be like cats circling an open can of tuna, constantly trying to figure a way around the artificial barrior.  As an alternative, leaving the matter to the sharks themselves to regulate would be like having the wolves police the hen house. In terms of social responsibility, getting mad at a shark for having what we presume is the wrong motive is utterly futile.  We tend to assume or project motives on business managers other than simply to feed. If we want to delimit the feeding, we might look into how the tank we have designed permits or even encourages over-feeding. That is to say, we can change the tank. 

We can’t very well change the shark without making it no longer a shark.  We could pass legislation outlawing profits, then we would not have companies, and they produce our products that we consume.  We want some feeding.  We are convinced that we need some feeding in the tank.  We just don't want such feeding that compromises the tank (or us). The question is how to prevent over-feeding at our expense. Presuming the shark will respond to our charges of its immoral motive is a non-starter, but we can redesign the tank, which the shark must take as a required constraint. 

For example, we can apply anti-trust law such that any sharks that become too big for the tank get chopped up and become shark-food.  We can install steel bars in the tank to limit where the sharks can feed (i.e., maximum prices or profits).   That the drug companies are price-setters rather than takers strongly points to the need for anti-trust enforcement.  Of course, if the sharks are threatening to eat our representatives, we can’t count on our politicians to give us straight talk on significant reform of the tank any time soon.  Rather, they will try to convince us that they have sufficiently modified its structure, when in fact they are enabling the sharks to continue over-feeding.  Perhaps the officials are sharks themselves.  Sharks, whether in business or government, policing a tank of sharks while the rest of us wonder why the over-feeding goes on and on is simply a recipe to get gouged, or bitten.

Source: http://www.nytimes.com/2009/11/16/business/16drugprices.html?_r=1

Hospitals in Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee and Texas, among others, stopped hiring smokers in 2010 and more were openly considering the option. Paul Terpeluk, a director at the Cleveland Clinic, said, “The trend line is getting pretty steep, and I’d guess that in the next few years you’d see a lot of major hospitals go this way.” I contend that various factors impact any comprehensive evaluation of the hospitals' policy against hiring smokers. Rather than rushing to reduce them to a definitive stance, my approach here is to rationcinate or reflect on the various factors, each of which is worthy of notice. An implication from my approach is that it is more difficult than one might suppose to weigh disparate factors to arrive at a position on whether more organizations should exclude job applicants who smoke.

According to The New York Times, one out of five Americans were smokers in 2010. Smoking remained the leading cause of preventable deaths.  Employees who smoked each cost, on average, $3,391 more a year for health care and lost productivity, according the the U.S. Government. In terms of health insurance premiums through work, hospital administrations barring smokers argue that it is unfair for employees who maintain healthy lifestyles to subsidize those who do not. However, why then stop at smoking? “There is nothing unique about smoking,” said Lewis Maltby, president of the Workrights Institute, who has lobbied vigorously against the practice. “The number of things that we all do privately that have negative impact on our health is endless. If it’s not smoking, it’s beer. If it’s not beer, it’s cheeseburgers. And what about your sex life?” Maltby is essentially pointing to the increased control that employers would have over their employees in their private lives away from work. Another example of this is Walmart's policy wherein employees are fired if they smoke pot in their own homes (I'm assuming no impact on them at work here). Should contracting one's labor give the other party the right to dictate what one does apart from one's labor? One might counter that a person is not forced to work for Walmart (and smokers are not forced to apply to work at hospitals).  However, if the trend-line is as steep as Paul Terpeluk avers, the issue could rather quickly become whether smokers are able to find work at all. In such a scenerio, if being employed is essential for one's survival, smokers really would be forced to give up smoking (or die).  Of course, continuing to smoke could also result in death.

So in the early 1990s, after large companies like Alaska Airlines, Union Pacific, and Turner Broadcasting excluded smokers from applying, 29 states and the District of Columbia passed laws, with the strong backing of the tobacco lobby and the American Civil Liberties Union, that prohibit discrimination against smokers or those who use 'lawful products.' Some of those states, like Missouri, make an exception for health care organizations. The "lawful products" mention intimates that employers should not be able to discriminate against the use of products that are legal.  Walmart would still be able to tell potential and current employees that they can not smoke pot even when there is no trace-effects at work. The involvement of the American Civil Liberties Union suggests that the issue involves liberty. For what benefit is political liberty if economic powers in society can exterpate the liberties of citizens off work?

One means of grabbling with this complex ethical, economic and political topic is to widen the scope in order to raise the employer-centered system of health insurance as suspect.  If there were one huge pool of insured, such as all inhabitants of the United States, then the pooling would essentially reduce the impact of unhealthy lifestyles because a greater variety of lifestyles would be pooled (hence reducing the overall risk). Of course, doing something unhealthy on a regular basis could justify higher premiums even within the larger pool so there is even less subsidizing.  My point is that relying on employers to exclude, while having salubrious public health aims, could hold survival ransom by withholding employability.  A similar exclusion would be involved if apartments could only be found if one did not smoke (even smoking outside being too much).

In short, I contend that where a complex problem involves several disparate factors, widening the considerations--taking less of the overall system as given--can point to a solution that essentially relegates or eliminates the problem. In the present case, involving employers in the health insurance system may be problematic. In other words, threatening one's survival (via employability) goes too far, even if the goal is good. Still another way to widen the discussion in a way that possibly solves the problem might be to bring in the question of what is keeping medicine from making more progress in curing addictions such as that to nicotine. Governmental funding for research, for instance, could be prioritized differently.  Broader still, governmental money spent on "corporate welfare" or foreign aid could be redirected into research. In general terms, the factors involved in whether private employers should be allowed to exclude smokers are societal, being of liberty, rights and the public good, rather than appropriate at the business firm level.  In any society, the interests of subunits (esp. to exclude) are not identical, even if the subunits are combined, to the public good.

Source: http://www.nytimes.com/2011/02/11/us/11smoking.html?_r=1&ref=todayspaper

The Senior US Senator from Illinois, Dick Durbin, said the following just before one of the votes on the health-care insurance reform legislation in December, 2009:

“Thirty million Americans who currently don’t have health insurance  have the peace of mind of knowing that they have health insurance,” Mr. Durbin said. He added, “This is a real debate over whether or not health care is going to be a right or a privilege in America.”

My first reaction after reading this quote was one of perspective—specifically, on how far from this central question of “right vs. privilege” the debate on the health-care legislation had gotten in the obsession over a “public option.”  Health-care can be a right, whether implemented through private, non-profit or public sector organizations (the government funding the poor regardless).   The fundamental question in mandatory health-insurance coverage is whether something that is needed to survive (medical treatment for the sick) is a political right in a society.  If so, then the government has a responsibility to make sure that every citizen has insurance regardless of income.   I suspect that there are many citizens in the US who would say that health-care should not be a right because that right involves economic redistribution.   I believe one poll showed that 87% of Americans who were satisfied with their health insurance said they do not agree to pay for others who would not otherwise be able to afford insurance could have it.  The costly emergency room visits of the uninsured may mean that the insured pay more to have uninsured in society; even so, my point is that we can not assume that rights bearing on sustenance and involving economic redistribution are recognized as rights (rather than as “tax and spend”).   Essentially—and perhaps surprisingly—some people would say that others do not have the political right to life (though some of the same people would say that unborn fetuses have it!).   Unfortunately, given how the debate on health-care insurance has gone, it is difficult to know whether there is a sizable portion of the American society that does not want to recognize that every citizen has a right to basic necessities.   Is political discourse such that it inherently leads to a spirallying out on a tertiary aspect of an issue, rather than on the eye?  If so, how are we to discuss just what are the limits on rights in our society?  Are the rights recognized in law to be byproducts of discussions on implementation (i.e., by business, non-profits or government organizations)?   Furthermore, is a focus on implementation a case of putting the cart before the horse…and letting the horse wander off? 

Thinking of the health-care insurance debate this way—as focused on implementation as if that which is to be implemented follows from it—I submit that there are limits to public discourse.  Hence, Congressional representatives who are led by polls and newspapers may well be a case of the tail wagging the dog.  At the very least, such legislators would not be debating the central questions.   It is dangerous, if not utterly unwise, to legislate this way.   Yet as our system of government becomes more and more democratic (i.e., tailored to the public discourse and polls), we risk running ourselves into a ditch—not looking at where we are going.   Rarely, if ever, did I hear or read references to health-care as a right in the debate.  I heard a lot on process and implimentation, but little on whether a new right that involves redistribution ought to be recognized.  Moreover, we missed an opportunity to debate whether rights that require redistribution are actually rights as distinct from economic egalitarianism.    Not even our elected representatives, who are supposed to act as abuffer to direct democracy (i.e., pulse of the people at the moment), were able to focus on these questions.   Clearly, chasing tails is not the way of leadership.  

Source: http://www.nytimes.com/2009/12/23/health/policy/23health.html?_r=1&ref=us

In the US Senate race in Massachusetts between Scott Brown and Martha Coakley, there was some resistance to the proposed federal health care legislation. This pushback was in line with reinvigorating a federal system for the United States.

Several independent voters said they wanted to elect Mr. Brown to block the health care bill being considered by Congress.  They denounced the US House and Senate bills as full of deals for special interests — though several said they thought Massachusetts’ law extending near-universal coverage, one of the models for the national bill, had been largely a success. “It’s not perfect, but why should we have to pay again when we have health care?” said Ms. Grenham, who works as a physical therapist.

That it is easier for a state government than the federal government to legislate on something like healthcare is no accident; the founders designed the US Government to be cumbersome precisely so most of the domestic legislating would be done by the state republics, which are closer to the people.  Hence Massachusetts has close to universal coverage while the majority of Texans might want to pass.  One size does not fit all in a heterogeneous empire-level Union.  For the US Government to go beyond its enumerated powers to duplicate what is already in Massachusetts would be to demonstrate the folly of consolidation and the related fallacy that every political unit in a federal system must have the same policy.  Although I firmly believe in universal coverage as a right rather than a privilege, I respect the right of the people of, say, Texas, to disagree and have a republic without it.   Such tolerance is necessary to a viable federal system.  Too many people imposing their agendas far from home must surely end in consolidation, which entails duplication where state governments are not already impotent.

Source: http://www.nytimes.com/2010/01/18/us/politics/18massachusetts.html?ref=politics

On February 28, 2010 on CNN’s State of the Union, Nancy Pelosi, Speaker of the US House of Representatives, said that the health insurance companies didn’t want a government-financed and operated insurance option for American citizens so it was off the table.  Her statement reminds me of the earlier one by Richard Durbin of the US Senate, who remarked after his forclosure-assistance amendment failed that the banking lobby owns Congress.   Would there have been the hyperbole of “socialism!” associated with the public option for health insurance were that proposal in the interest of the industry at issue (i.e., at fault)?  If so, it is interesting in a sad sort of way that a culpable person would have the gall to use exaggeration (there would still be private insurance so the sector would not be socialist…meaning owned and controlled by the state).  We have seen the same thing from the banking lobby in fighting reform efforts in the wake of the financial crisis of September, 2008.   In other words, we can isolate a pattern here: even when companies (or an industry) are at fault, they can still own Congress when their interests are at stake.

It is particularly disconcerting to me that so many citizens fall for the self-interested exaggerations when it would be more natural for people to be angry at the culpable people for continuing their unethical business practices (and going on to stop reform that is at least in part due to their bad practices).  Take for example, Representative Dennis Cardoza, Democrat of California in the US House. The husband of a family practice doctor, he is intimately familiar with the failings of the American health care system. His wife “comes home every night,” he said, “angry and frustrated at insurance companies denying people coverage they have paid for.” Even so, he is on the fence on the Democratic health-care reform proposal because he wants stronger anti-abortion language and more cost control.  Were he really angry like his wife, he would be pushing not only for the bill, but for the public option or for real restrictions on the insurance companies, rather than allowing secondary issues to block him.  In other words, I don’t believe he is really that angry at the companies refusing to fuffill their responsibilities to their customers who have paid the premiums.  Also, he is allowing himself to succumb to the self-interested manipulation of the same firms that he is ostensively angry at.  It is in the health insurance companies interest that costs be reduced because then their expenses are reduced (and their profits, which were very high in 2009…even as they were denying treatment to some).  If he were really angry like his wife, he would not be so willing to do something that would benefit them so much; rather, he would be working to take power and money away from them.

Unfortunately, the problem kids are able to thwart our efforts to clean up after them.  America’s Health Insurance Plans, a lobby for insurers, announced in March, 2010 (as Congress was considering health-insurance reform) that it was buying more than a million dollars’ worth of television advertising time to explain why insurance premiums had been rising. The week before, the White House had indicated that the industry’s rationale for the raised premiums was unconvincing.  Too many of us are letting industries get away with their mis-representations geared to thwart reform.   The health insurance industry’s ads convince us that the companies really aren’t sharks; we ignore Sen. Rockefeller’s likening of the companies to sharks—you don’t know there is a shark until you see its fin and feel its sharp teeth.  In other words, our anger is too easily (and conveniently…for the sharks, which want to continue feeding) dissipated.  We let the bad kids off the hook and go on as if the problem were somehow no longer out there.  This puts the misbehaving kids in a position to thwart any parenting.   In short, too many of us are unwittingly being manipulated by the bullies (who are therefore getting away with murder).   I suppose I shouldn’t be surprised that spoiled  kids would not feel culpable for their own bad behavior, but I am.  I am perhaps even more disappointed in the parents (i.e., the American people) who let themselves be manipulated by such kids.  It is like watching the parent of an alcoholic teenager be in denial and thereby enable the kid to continue drinking even though the kid beats up other kids when he or she drinks.  “Oh, Tommy didn’t mean it; he is really a good kid.  I don’t think we need to look at a group home or jail. He will be good if he can relax with a beer.  Here Tommy…” 

Whether in dealing with the people at the health insurance companies who are in denial or the representatives and their supporters among the public who are also in denial and are enabling them, it is an exercise in futility and utter frustration to see this dynamic and want to shape it up because the sickness has strong defense mechanisms against real change.  So I ask: can a dysfunctional system be fixed?  Can it fix itself?  Probably not.  So are there enough people in the US outside of the dysfunction who could fix it above the screams of the sick who do not want the shot?   Imagine a physician acquiescing to a kid’s demand that the shot not be given.  In a physcian’s office, the sick kid does not get to decide—or to put it another way, there are enough adults in the room that the shot is given over the kid’s objections.  So where are the adults?

Sources: http://www.msnbc.msn.com/id/35628488/ns/politics-the_new_york_times/ ; http://www.nytimes.com/2010/03/10/health/policy/10health.html?ref=us

Goldman Sachs, which played a role in enabling Greece to hide its public debt, urged investors in March, 2010 to buy shares in two big health insurance companies, UnitedHealth Group and Cigna because their rates were sharply up and competition was down. According to the NYT, the White House claimed, “ the Goldman Sachs analysis shows that while insurers can be aggressive in raising prices, they also walk away from clients because competition in the industry is so weak.”  Rate increases ran as high as 50 percent, with most in “the low- to mid-teens” — far higher than overall inflation.  Kathleen Sebelius, the secretary of health and human services, stated on March 10, 2010, that she was left unconvinced after meeting with health insurance company execs at the White House the previous week because medical cost increases could not justify the rate increases. Furthermore, she pointed to the profit increases, some as high as 50%, in 2009 over 2008, and large executive salaries as evidence that the firms could have absorbed more of their cost increases than they did.  Cutting off customers when it is time for a firm to pay up while recording higher salaries and profits indicates that something is structurally wrong with the industry (and with the firms, ethically speaking).  If the execs lied at the White House, citing costs that “had to be passed on,” we ought not be so gullable at the managers’ claims in the future.  Also, if they were lying, we might recall Senator Rockefeller’s description of the insurance companies as sharks…feeding machines that are often not seen until their fins break the water-surface and their teeth are coming down on you.  Otherwise, the water is calm.

In February, 2010, the US House of Representatives passed a bill that would repeal the anti-trust exemption for the industry.  Armed with fresh retained earnings, the oligarchic industry was in a good place to fight that bill in the Senate.  In other words, the bill abruptly stalled. That the repeal was so difficult, if not impossible, to achieve is itself telling.  Once an industry has such clout and power that it can effectively veto legislation it doesn’t want—even as the firms cut customers off when they get sick (not to mention pre-existing condition abuses)—our republic itself is in danger.  In the regulatory literature, this is called “capture theory.”  The pubic good is captured by concentrated (and vested) business interests. The plight of financial sector regulatory reform in the wake of the financial crisis of 2008 is another case in point.   In short, cleaning up these messes should be easier, even given the encumbering checks and balances in the US Government.  The fact that it is not should give us great pause.

Source: http://www.nytimes.com/2010/03/07/health/policy/07health.html?ref=politics

A Republican US President pushes hard for the US Government to play a more active role in K-12 education via “No Child Left Behind.”  A Democratic US President pushes hard for the US Government to play a more active role in health-care.  In regard to the latter, proponents of the health-insurance law argue that Congress acted within its authority under the Constitution’s Commerce Clause.  However, Ken Cuccinelli, the attorney general of Virginia, says the U.S. Supreme Court has never ruled that the clause allows Congress to require citizens to purchase a good or service like health insurance. Cuccinelli’s complaint also argues that the Virginia law that outlaws the federal government from forcing state residents to purchase health insurance trumps the federal law because it is a matter assigned to the states under the Constitution’s 10th Amendment. That amendment says that all powers not explicitly granted to the federal government remain with the states.

In spite of being semi-sovereign (plus having the residual sovereignty beyond that which is enumerated for them and for the US Government), the State governments have generally been sleeping through federal encroachments for decades.  This is understandable, as past efforts to thwart federal encroachment have failed.

In 1830, Andrew Jackson sent federal troops into South Carolina because its legislature had decided that it could nullify federal law encroaching on its domains of governmental sovereignty.  The South Carolina legislature relented (though its succession document would be retreived in 1858 after the Congress passed a tariff on rice and cotton exports).

In 2010, one would think that the lesson against nullification had suddenly been lost on several of the State governments.  In March, the Senate defeated an amendment that would have allowed states to opt out of the health-insurance requirement.  Yet the governor of Virginia signed the nullification bill into law nonetheless.  The policy argument against nullification stresses that state opt-outs would reduce the size of the insurance pool and thus preempt the anticipated cost-savings.  There is also the point that if access to health-care is indeed a redistributionist right, then it could be argued that it ought to exist in the entire Union.  However, such a right could be argued to be basic law, and thus requiring an amendment to the US Constitution.  Alternatively, it could be argued that the determination of whether a right is involved ought to reside with the states.  In terms supremacy and nullification, if the power to require health-insurance is not within the commerce clause, then the federal law would not override state laws to the contrary.  However, it is commonly thought that preemption and supremacy go with any US law.  Yet this has not stopped states from reasserting their constitutional prerogatives.

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on March 12, 2010 declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. On the day before, Wyoming’s governor, Dave Freudenthal, a Democrat, had signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul. In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session that week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority. Rhode Island, Vermont and Wisconsin — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

Given the Nullification Crisis in the nineteenth century, the actions in the twenty-first seem likely to be dismissed by US Supreme Court. Given the structural conflict of interest, the federal high court has tended historically to interpret the Constitution in the federal government’s favor. It is like having a member of one of the teams as the umpire.  So it is easy to dismiss the state laws as political theater.  However, ignoring them would only stoke the fires of resentment and add to the pressure that could eventually dissipate the Union.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Alabama.  Article 6 of the US Constitution indicates that federal law is superior over state law where there is a conflict, but it wouldn’t make sense for this to apply outside of the federal government’s enumerated powers—for otherwise why even include the latter?  In other words, a constitution cannot be both consolidated and federal with the republics having some governmental sovereignty, or autonomy, from the government of the Union.  We can’t rely on elections to protect the balance of power necessary for our federal system to remain federal (and thus operate as a check on each government); there are too many other contending issues and character traits at issue in a given election.  “Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain,” said Mr. Woods of the von Mises institute. Also, drawing the federal dividing-line by election presumes that the people understand federalism.  Even so representatives pushing for more of a balance miss it. “Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah.  In actuality, both governments have governmental sovereignty in the American federal system.  It is not “either or.”

States opting out is not unprecedented in federalism.  In the EU, for example, three States have opted out of the EU’s currency.  One State has opted out of the EU’s social program.  If the US Supreme Court will not allow us to do likewise, we can propose and ratify an amendment to the US Constitution instituting a process for it.  If we deem that as insufficient to restore a balance, we can propose and ratify an amendment stating that the supremacy and spending clauses pertain only to the powers that are enumerated expressly for the US Government.  Lastly, we can propose and ratify an amendment that puts sitting State Supreme Court Justices on the US Supreme Court (on a rotating or nominated basis) so to counter the conflict of interest in having a federal branch being the umpire on conflicts involving federalism questions.  The deck, as it were, is presently stacked against a healthy federal system in favor of a consolidated Union.  The individual republics standing up in protest by passing laws that will likely be cut down by the US Government Court may be counterproductive because people might assume the efforts are sufficient and go on to other things.  Proposing and ratifying amendments to the federal system take a lot of energy—it would be ashamed to dissipate it just when it could be used for structural changes…systemic change…real change.

Sources: http://www.msnbc.msn.com/id/35906430/ns/politics-the_new_york_times// ; http://politicalticker.blogs.cnn.com/2010/03/24/virginia-governor-to-sign-law-firing-back-at-health-care-bill/?fbid=UERb4EI-c6a#more-96318

I must admit I’m sad that the health insurance companies were active in determining the law. I don’t think the vested interests in the status quo can be invested in a sufficent degree of change. For instance, the companies vetoed the public option, even though it can be argued that it is in the public interest.  Furthermore, immediately after the health-insurance reform became law, some health insurance companies decided to interpret the requirement that children with pre-existing conditions do not have to be covered after all.  “The concept that insurance companies would even seek to deny children coverage exemplifies why we fought for this reform,” said Representative Henry A. Waxman, Democrat of California and chairman of the Energy and Commerce Committee. Senator John D. Rockefeller IV, Democrat of West Virginia and chairman of the Senate commerce committee, said: “The ink has not yet dried on the health care reform bill, and already some deplorable health insurance companies are trying to duck away from covering children with pre-existing conditions. This is outrageous.”  But this is what happens when the industry’s lobby is invited to participate in writing the legislation.  Self-interested fine print is inserted for the purpose of being exploited as a loophole.  In other words, this is no accident, and our representatives should have had their staffs on the watch for it.
I believe that business/industry has too much power over public policy in the case of the US Government. After the health insurance reform bill passed the US House, President Obama said “this is what change looks like”…but can it be real change when whether the extant firms can make money off of it?

The other thing that bothers me is when the Tea Party (and Repubs) said that the health insurance reform that uses health insurance companies is socialism and the government taking over health-care. This is to take a very moderate reform and portray it as radical…so there would not be truly radical reform that says the hell with the health insurance companies. Why can’t we say the hell with them? Why can’t we recognize the conflict of interest in such a company being a player in the writing of reform? …especially if the player has a veto!

I think the hyperbole is a subterfuge for the greediness of the wealthy—which is a reflection of how much money is valued in the lower 48 States. I am just beginning to sense that the culture itself values money/wealth differently than in Europe (I’m perhaps overgeneralizing here too…not distinguishing northern from southern Europe). I’m trying to distinguish greed from how much wealth is valued…arguing that the latter is different here.  Greed is everywhere.  However, some cultures value wealth more than others do. The extent here is very hard to notice because it is so basic in the culture. It is like a fish seeing the water! But I think Europeans can see it…looking at the culture here from the outside. I’m positive that we don’t see it…for we are in it.  I think we should listen to what people around the world say about American culture.  I think we could learn something about the society we are.

Source: http://www.nytimes.com/2010/03/29/health/policy/29health.html?ref=us

The far right in Europe is different than in America. Right wing movements [such as Le Pen’s] in Europe often differ in significant ways from the right wing that’s made in the U.S.A. Put aside the usual caricature of “people in pointy hoods and the Ku Klux Klan,” Marine Le Pen says, and she still believes “the American right is much more to the right than the National Front.” She might agree with those who want to manage American frontiers more effectively and prevent massive illegal immigration, but she’s also a big believer in the state’s ability and obligation to help its people. “We feel the state should have the means to intervene,” she says. “We are very attached to public services à la française as a way to limit the inequalities among regions and among the French,” including “access for all to the same level of health care.”

Analysis:

Perhaps the American right is more far-right in terms of government, but I suspect not in terms of immigration and other issues.  For example, the euro-skeptics are much more skeptical of the EU than the state rights advocates in America are of the US. I am struck by the fact that the far right in Europe is for universal health-care. Notice that the assumption is that the states of the EU (e.g., France) should cover health-care policy.In the US, by contrast, health-care policy is assumed to properly reside with the US Government rather than with the states. Also, it seems that the wealthy “I don’t want to help others with my tax dollars—just defense” view doesn’t seem to get much political expression in the EU.

Source: http://www.newsweek.com/2010/09/05/how-marine-le-pen-is-changing-french-politics.html

Senator Ron Wyden has written to government officials of Oregon to encourage them to “come up with innovative solutions that the Federal government has never had the flexibility or will to implement.” This is significant because he is a democrat. As long as a state covers the same number of uninsured and keeps coverage as comprehensive, the following can be waived:

1. the individual mandate to purchase insurance (i.e., what Virginia and Florida are suing over)
2. regulations about business taxes
3. federal standards for minimum benefits
4. allocation of subsidies in the insurance “exchanges.”

These are called section 1332 waivors. There is also some flexibility on medicaid--but how much flexibility do these waivors proffer? The states might be able to determine how the uninsured are to be insured. For instance, they could go single-payer. Or could they?The federal allocation of subsidies in the insurance “exchanges” can be waived, but can the “exchanges”?

There is a trade-off involved in federal standards and state waivors. If the federal standard is too high (e.g., the number of uninsured covered and the amount of minimum coverage), then not much freedom is involved in the waivors because the standards must be met regardless. Given the diversity within the Union and our system of federalism, the US Government should have been oriented to coming up with minimum standards for health-care rather than trying to make it a federal responsibility. By minimum, I mean that below which is unacceptable for a state in this union. For instance, it could be that universal health-care is a minimum if health care is to be considered an American right. The states, rather than the general government, would then be required to pass laws to implement the minimum standard in any way they preferred. They could determine the means, whether single-payer or exchanges. I’m not sure that the existing waivors, which do not begin until 2017, allow for such flexibility as would accommodate the various political ideologies of our states. Once power is grasped, it is very difficult indeed to let go of some of it.

Source: Wyden Defects on ObamaCare, WSJ, September 3, 2010, p. A16.