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Monday, October 7, 2013

Government Mandated Broccoli

Broccoli is good for you. It provides nutrients, vitamins and fiber. It tastes great with sour cream dip. Without it, beef with broccoli is just beef. (which is also excellent, but not the same.)

People who eat broccoli (along with other vegetables) as part of a healthy diet are less likely to be obese or have weight related illnesses.

In order to promote a healthy society, the federal government should be allowed to mandate the purchase of broccoli (and other vegetables).

Does that sound right to you? If not, you are against the Affordable Care Act - because it is effectively the same thing. In fact, Justice Ginsburg used a similar argument to state her case for upholding the ACA when it was under review.

If that sounds ok, then I have another scenario for you:

Congress passes a law. They use a few parliamentary tricks to force it through, but at the end of the day it does pass.

The Supreme Court upholds the law, but only after they change a fundamental part of it - making it no longer the same law that Congress passed.

After the law leaves the Supreme Court, the President takes his red pen to it. He arbitrarily changes a few provisions, adjusts whom the law will affect, and exempts some of his friends from following the law at all.

Do you have a problem with that? 

If so, you just sided with the House Republicans.* Yeah, I said it. It is both their prerogative and their responsibility to prevent the President from unilaterally changing and unequally applying the law - even if you agree that it is the settled law of the land. Not that this should be a party issue at all at this point - Stopping further implementation of what amounts to a redistributive tax thinly veiled as "health insurance" should simply be about equal treatment and fairness. And this law, as it is currently being perverted and applied is (if possible) more unequal and more unfair than it was when it was written.

*Also, I'd like to clear up a little misconception: the Republicans did not decide to shut down the government. No one decided to shut down the government. There was no vote to shut down the government. What Republicans did was fund the entire government except for the ACA. The Senate voted down said funding - at least four times - and the President promised to veto those funding measures if they made it through the Senate.

10 comments:

  1. Except if you decide not to eat broccoli it doesn't impact me. And there are lots of other food options available to you instead of broccoli. And if you can't afford any of those options there are government and private programs that will help you.

    But if you decide not to buy health insurance it does impact me. Because eventually you'll get sick and you'll likely end up in the ER, which is the most expensive kind of care, and the statistics say you are unlikely to pay your bill for that care, which means everyone else has to.

    And there are lots of middle-income working families that want to buy health insurance but can't afford it because it is so astronomically expensive (especially in certain states) but who earn too much to qualify for assistance.

    And, pre-Obamacare, if you had a pre-existing condition you could outright be denied health insurance.

    No one who goes to a grocery store with broccoli for sale is denied the chance to buy it.

    Look, I'm no fan of Obamacare. But it is better than what we had before it. Which makes it grating that Republicans seem intent only on repealing the law and not proposing an alternative.

    If Republicans voted to REPLACE Obamacare with something better, they'd get a lot more support. From me included.

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  2. Whether or not my decision to eat or not eat broccoli affects you is completely irrelevant to the fact that it is unconstitutional for the government to mandate that I buy it - and the Supreme Court said so, which is how Obamacare got changed to a tax in the first place.
    The point here is not what you'd like, what you may eventually have to pay for (and yes, I can afford my own emergency care when necessary, thanks) or whether or not anyone has submitted a replacement plan. The point is that the law as it stands is not even close to the one that passed in 2010, and failure to stop it in its tracks is basically saying we approve of the Supreme Court rewriting law as they see fit (illegal) and the President editing and unequally applying the law as he sees fit without the approval of either Congress

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  3. Or the court. Sorry, but I am not ok with that.

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  4. Your point, as I understood it, was that forcing citizens to buy and eat broccoli was the same as forcing citizens to buy health insurance. I submit that they are different. The effect your broccoli habits might or might not have on me is relevant to that.

    As for what you wrote here:

    "The point is that the law as it stands is not even close to the one that passed in 2010 . . ."

    That isn't true. Yes, a provision of the law has been delayed (illegally in my opinion too) and the court struck down a part of the law that dealt with Medicaid expansion. But the law being enacted at this very moment is substantially similar to what passed by Congress.

    This isn't true either:

    ". . . and failure to stop it in its tracks is basically saying we approve of the Supreme Court rewriting law as they see fit."

    The Court did not write any law. Show me please what Obamacare statute you claim the Court wrote.

    The Court strikes down whole or parts of laws semi-often. That's not the same as writing laws and it isn't illegal (though I sometimes strongly disagree with the Court's decisions). If the Court doesn't have the power to strike down whole or parts of laws then there's not much reason to have the Court in the first place.

    In this case, the Court decided that the law written exactly *as it passed Congress* already was a tax. Here's how John Roberts himself explained it:

    "If an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes . . . . the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the government taxes, like buying gasoline or earning an income."

    Then in a footnote he explained:

    "Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing that they may not lawfully do is not buy health insurance and not pay the resulting tax."

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  5. First: I did not say that mandating the purchase of broccoli and mandating the purchase of insurance are the same. What I said was that Justice Ginsburg posited both as equally acceptable and that we should probably be concerned about that.
    Second, the law that passed Congress was definitively not a tax. The wording of the law was clear (yes I read it) in defining the penalties and fines that would result in failure to purchase insurance. Congressmen and even the President campaigned on the fact that it wasn't a tax. For Chief Justice Roberts to say that it is a tax and it must have been all along is a usurpation of legislative power and is the definition of rewriting law from the bench.
    If it was a tax all along, two new problems emerge: first, the law originated in the Senate and all tax bills must originate in the House. That means that even if the Supreme Court upheld the law, it was illegally passed and therefore invalid.
    And second, the number of lawmakers, federally appointed lawyers, and yes, even the President, who either campaigned on the fact that the law did not impose a tax or argued in front of the Supreme Court that it was a penalty/fine rather than a tax should be facing discipline.

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  6. And one more thing: Yes, the Supreme Court strikes down laws in whole or in part all the time. But the Affordable Care Act had an unseverability clause attached that means that by definition, striking down any part of that law without striking down the whole thing was illegal and again legislation from the bench.

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  7. I don't know if former presidents are exempt from the ACA like the current one is, but I believe that the first President Bush exempted himself from broccoli.

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  8. Let's start with where we disagree, or where you are simply factually wrong:

    "I did not say that mandating the purchase of broccoli and mandating the purchase of insurance are the same."

    But you did! You said if you are against mandating the purchase of broccoli then you are against the AMA because they are "effectively the same thing."
    Look in your 4th graph, please.


    ". . . the law that passed Congress was definitively not a tax."

    But the Court, rightly or wrongly, concluded it was. The President campaigning on it not being a tax doesn't make it so. Nor does your, or my, opinion.


    "For Chief Justice Roberts to say that it is a tax and it must have been all along is a usurpation of legislative power and is the definition of rewriting law from the bench."

    Except the definition of "rewriting" involves taking something that was written one way and writing it again a different way. The Court did not write the law a different way. There's not a single Obamacare statute on the books written by the Court. What the Court did was interpret the law -- the law as written by Congress -- to be a tax. Interpreting laws is the Court's job as defined in the Constitution.

    Imagine a more generic example and it might be easier to see: If you think a law means X and I think it means Y and the Court interprets it to mean Z, that is not an example of the Court "rewriting" the law. That's either an example of you or I misinterpreting the law or the Court misinterpreting the law or some combination thereof.


    "the Affordable Care Act had an unseverability clause attached"

    No, it didn't. It did, however, lack a severability clause. Other laws that lacked such a clause (eg. Sarbanes-Oxley) have had portions invalidated and have still be allowed to stand. Myself, I disagree with that. But there is precedent for it.


    And so here's where we come together:

    Politicians who said Obamacare wasn't a tax should indeed face discipline. And indeed, they DID. They had to run for reelection. Some won. Some did not.


    "the [AMA] originated in the Senate and all tax bills must originate in the House. That means that even if the Supreme Court upheld the law, it was illegally passed and therefore invalid. "

    I agree. And find it curious that the Court didn't strike down the whole law for this very reason.

    I also find it curious that the Republicans, on the whole, didn't make this central to their argument. They offered, for example, to fund the whole government in exchange for a 1 year delay of the individual mandate, thereby indirectly giving Obamacare a measure of credibility.



    "the number of lawmakers, federally appointed lawyers, and yes, even the President, who either campaigned on the fact that the law did not impose a tax or argued in front of the Supreme Court that it was a penalty/fine rather than a tax should be facing discipline.





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  9. You know what sucks? When you go out of your way to cite the Constitution to prove me wrong and accidentally quote precedent (and bad precedent at that) instead. The Court was not given the power to interpret law (Judicial Review) by the Constitution - rather, that was a power grab made by Chief Justice Marshall in the landmark Marbury v Madison case. It should have been challenged and never was, and thus it became precedent. But it was never a Constitutionally granted power, and the decision that granted the court that power was likely unconstitutional. But thanks.

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  10. Fair enough. I'll stand corrected on that one point: The Constitution doesn't use the term "interpret" to describe the Court's role.

    If you want to go back 200+ years to Marbury v Madison and claim the Court has no power of judicial review then fine. But then you'd have to conclude that the Court doesn't have the power to declare the mandate, or any part of Obamacare, unconstitutional.

    And, while you are at it, you'd have to conclude that Brown v Board of Education, Near v Minnesota, etc, etc were also unconstitutionally decided.

    So . . . that settled, what of all those points you got wrong?

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