What It Is; What It Ain’t


onservatives are all thumped up about regarding U.S. District Judge Henry Hudson’s declaring a critical part of Obamacare unconstitutional.

But before they break out the champagne, they need to consider a few points:

  • The ruling deals only with that part of the health law that has the federal government requiring that all people buy health insurance. While Atty. Gen. Kenneth Cuccinelli won on this point, Hudson did not go along with the Cooch on striking down the law entirely or delaying its implementation until a higher court can rule on an appeal, which the Justice Department has already filed.
  • Two other federal judges have upheld the law, including one in Lynchburg. Both were appointed by a Democrat. Hudson is a Bush appointee.
  • Virginia is not the only state to challenge Obamacare. About 20 attorneys general are suing in Florida. While the Cooch scored some points, he’s just one of many conservatives who dislikes the law. Indeed, my old college roomate, an ecologist-turned-Republican who is a former congressman from New Hampshire, is against it.
  • The “Commerce Clause” aspect which is what Hudson is dwelling upon is a very elastic and flexible concept. It has been used this way and that for years. So while Hudson’s narrow ruling has interpreted the clause one way, it is quite possible an appeals judge might see it differently.

My personal view is mixed. While I enthusiastically embrace health care reform, I do have some misgivings about being forced to buy something. Yet, I understand that one of the reasons why all need to buy health insurance is that productive tax payers get stuck with the emergency room or other bills of cheapskates who skimp on insurance until they are sick or injured.

It could very well be that the only solution to this is socialized medicine with a one-payer system. We are perhaps the only advanced industrial country that doesn’t have one. I know several doctors on the front lines of health care who are sick to death of having to deal with for-profit (or even non-profit) insurance companies that game the managed care program set up three decades ago.

The Dems have suffered a defeat, but it may not last. Meanwhile, I haven’t seen one clear new reform from the GOP or from the naysayers like Jim Bacon who somehow thinks that a medical concierge system might work (sure Jim, if you are rich).

Peter Galuszka

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19 responses to “What It Is; What It Ain’t”

  1. Anonymous Avatar

    The only person who would think that the Hudson decision is a ‘victory’ for anyone is a person who understands nothing about the judicial procedure and / or has never sat in Judge Hudson’s court.


  2. I think this is excellent news. All America knows Congress is broken. Presently, Congress holds the lowest approval rating in the history of Gallup's ratings of Congress. The new Tea Party infusion is unlikely to change things.

    All America knows the White House is broken. A huge number of Americans had Bush Derangement Syndrome. Now, a huge number of Americans have Obama Derangement Syndrome.

    Now America again sees that the judiciary is broken. From a Clinton apointee thowing out precedent in an immigration case to an abviously partisan split on the health care lawsuits, the judiciary is now better than the Congress and White House.

    Those who want fundamental transformation should be looking at this situation as a time of great opportunity. From Jim's Boomergeddon to Ed's human settlement patters to my constitutional reform … the next two years will be the time to move.

    The final real trigger for reform will be the insolvency of several states.

    As a constitutionalist, I applaud anybody who pushes back on the Commerce Clause – a part of the US Constitution which has been used and abused for a long, long time.

  3. In terms of "making" you "buy" something – I would suggest that those who who get a paycheck check the two boxes that say FICA SS and FICA Medicare where – no matter what State you work in nor who you work for – you have those boxes on your pay stub because the Federal Govt "forces" you to pay for your pension and your medical care.

    If the "the govt can't force you to buy something" criteria ends up being upheld as unconstitutional – some group – even if it is not Cooch…and some right wing idiots even more right wing than him – will sue to overturn Medicare and Social Security on that basis.

    Count on it.

  4. Also, in case LarryG is interested … I believe that the judge was quite clear that Medicare is OK because it is a tax.

  5. Groveton – as usual for those with his views does not understand the difference between FICA and the General Budget.

    FICA has almost never been in deficit and has, in fact, generated surpluses most years and the real irony here is that the money that was surplus to ICA is gone – having been spent – not on SS and Medicare as it had been so designated but on the general budget which is STILL 1.4 trillion "short" on an annual basis …

    … AND THAT… ALL of those who have "shared" their view that the U.S. is headed for "insolvency" (true enough) – NONE of them have even offered a plan for reducing or balancing the general budget nor do they support the plans that have been offered to date that do – do it.

    .. so those folks are hypocrites in my mind.

    if you think we are headed for insolvency – the FIRST THING to do is to advocate a plan that cuts the annual deficit to zero.

    Where is that advocacy?

    Show me the trillion dollar in cuts that you advocate for balancing the budget.

    We have a 1.4 trillion annual deficit and a 14+ trillion dollar debt – and the "fault" is FICA-funded entitlements if you believe some folks.

  6. LarryG, say to yourself three times ….

    Social Security and Medicare are taxes

    Social Security and Medicare are taxes

    Social Security and Medicare are taxes.

    Just another form of wealth transfer in an increasingly socialist (and an increasingly failed) federal government.

  7. re: "Medicare" is a tax.

    so is Obamacare.

    It's a tax. You get a rebate if you have your own insurance.

    The argument is over whether or not it is in fact a "tax" or a "penalty" – not withstanding the fact that the U.S. govt has always had the authority to tax.. AND penalize you.

    …i.e. "tax & penalties" for evading the laws….

    If the EPA "forces" you to build a wastewater treatment plant and you fail to do it – they will "fine" you…..

    If you build a car in Va that does not have seat belts or air bags – the Feds will FINE You and even shut you down.

    Do the Feds have the ability to "force" you to buy something?

    ha ha ha ha ha..

    do bears do it in the woods?

    what the righties are saying is that they do – but only if they call it a tax….

    if you call it a penalty, nope.

    ha ha ha ha ha

  8. LarryG –

    Don't direct your nonsense to me, address it to the judge in the health care case.

    He sees a big difference between the TAX of Social Security and Medicare and the penalties involved in the health care bill.

    Which is why your hysterical argument about Cooch (or someone like him) killing off Social Security or Medicare is a hoax.

    So, myth#1: Medicare is an employee benefit. Not according to the judge. He (and almost everybody else) thinks its a tax.

    Myth#2: There is some kind of effective segregation of funds for Social Security or some kind of lockbox. Sorry. Like all government spending … these are promises to pay based on promises to tax. Maybe the government will be able to make good on these payments, maybe not. My bet is not.

  9. "re: "Medicare" is a tax.

    so is Obamacare.".

    Read the judge's ruling LarryG. You are on a small island here. And the tide is coming in quickly making your little island smaller and smaller.

  10. In LarryG's world …

    There is a neighborhood mafia don who extracts protection payments through threat of force from the residents of the neighborhood.

    In some ways, the don provides a service since he and his crew beat back multiple competing gangs from attacking the neighborhood.

    Unfortunately, the don is an excessive spender. He throws lavish parties, gambles to excess and is generally a spendthrift. So, he is constantly escalating the level of protection payments levied on the people in the neighboorhood.

    Eventually, the consigliere tells the don that his protection fees are bankrupting the very people who he expects to keep paying those fees.

    So, the don offers the neighborhood a mandatory retirement and health care plan. He continues his excessive spending but also pays out benefits to the few people in the neighborhood who come due for benefits. He makes no attempt to even pretend that he is segregating the funds. He just promises to pay benefits when they are due.

    People in the neighborhood start saying, "Hey, the Don is going broke.". He keeps throwing lavish parties, he keeps gambling. People say, "This guy won't stop throwing the lavish parties just so he can pay the promised benefits, he reneg on the benefits.".

    Of course, there are some people who were early to the Don's Ponzi scheme. They say, "We're fine. The Don has always paid benefits. In fact, if add up the "benefits protection" money we paid in, it's less than he paid out. Heck, he even puts the protection money into his right pocket while he puts the 'benefits program extortion' money into his left pocket". Others say, "Who cares? You know what the Don will do when he's forced to choose between paying out benefits and throwing lavish parties. He'll just keep throwing lavish parties and gambling while finding an excuse not to pay out the benefits.".

  11. re: myth #1 – it's a "benefit" that the govt "forces" you to pay for. Calling it a "benefit" gives the impression that there is some good (or bad value) that makes it right (or wrong).

    Nothing of the kind. There is NO WARRANTY and you cannot say you do't want it because it's not a good buy for you.

    Myth #2

    FICA is not a myth. FICA goes DIRECTLY to the Social Security Administration that banks it and draws from that bank to pay social security and Medicare.

    The real irony here is that FICA/SS/Medicare is not in deficit and has not been for most of the 60+ years in existence and thus is not the cause of the current deficit and debt but folks like Groveton want to take the FICA money and use it for things other than it's original purpose – in effect destroying the SS/Medicare programs – not because they are broke but because he disagrees with the CONCEPT and then of course he has this other deficit problem where he is unwilling to make the cuts (or raise the taxes) to get it into balance.

    Instead, he wants to raid FICA for that money.

    that's not fiscal conservatism folks.

    I'm not sure what it is but it a lot like raiding your own 401K to pay off your credit card debt.

  12. Larry is right. Making one buy insurance is simply a way to avoid the truth. This is a tax increase.

    Call it a user fee, insurance premium, a fine, or a toll, its all a tax increase.

    But instead of arguing against every tax increase we should be working on ways to agree on when tax increases provide a benefit and when they don't.


  13. If we had only three times the military might of our nearest competitor, our budget and deficit worries would be over.

  14. James A. Bacon Avatar
    James A. Bacon

    Peter, for the record… I think concierge medicine is a wonderful thing for those who can afford it, but I certainly don't recommend it as a systemic solution for the United States.

    Indeed, in Boomergeddon, I warned that a shift to concierge medicine would aggravate the already-severe-and-growing physician shortage we have in the country. Typically, primary care physicians handle around 3,000 patients. Concierge medicine doctors handle only 1,000. That means every doc who makes the shift to concierge medicine leaves 2,000 people looking for a new doctor. Inevitably, that will result in people enjoying less access to medicine.

    The counter-argument to my argument is this: Many docs who shift to concierge medicine would drop out of medicine *altogether* if the concierge option weren't available.

    The shift to concierge medicine is a reflection of our dysfunctional health care system, not a solution to it.

  15. You know in 1993, people like New Gingrich and Dick Armey SUPPORTED universal health care with an individual mandate.

    In other words – the so-called "bedrock" values of the so-called conservatives – shifted – not a little bit – but a 180 degree flip-flop in the span of little more than a decade.

    There is no question that folks who call themselves "conservatives" have changed their values.

    In terms of " concierge medicine" and the need for primary care physicians – this is a no brainer.

    Two simple fixes change this.

    Make the kinds of therapies and medicine that is defined as "concierge" not a 100% benefit under Medicare and Tricare – as has been proposed.

    If you want that kind of service, then put your own money on it.

    If you want more Primary Care physicians – incentivize them.

    Give them better loan deals and other incentives that make Primary Care a more appealing choice to people who want to become doctors.

    The "obstacles" that have been cited by those who are opposed to universal health care are simply excuses in my view.

    We can do it if we want to.

    The Republicans had the same vision of universal health care and individual mandates just a little over a decade ago.

    What happened?

  16. Larry – yes, Obamacare is a tax but it's a tax that Obama doesn't want to call a tax. Watch the president’s interview with ABC’s George Stephanopoulos to see just how emphatic Obama was. When Stephanopoulos says that the mandate is a tax increase, Obama scolds Stephanopoulos. “That’s not true, George,” the president says. “[It] is absolutely not a tax increase.”

    And remember, Obama kept promising us that no one (under a certain income level – one that keeeps changing) wouldn't see one penny of tax increase. Well, if Obamacare is enacted (in full) it would be an increased tax on many people. Obama has already lied on so many of his promises (like when he chastised Clinton for suggesting that healthcare would have to be mandatory, but he, Obama, would not make it mandatory) that he is trying desparately to keep the broken promises to a minimum.

    Obamacare is pathetic as is Obama.

  17. Oh you mean like "read my lips" or "I'm a uniter not a divider and we don't national build"?

    ha ha ha

    I'm pretty sure that Mr. Obama said, more than once, that at some point, we're going to have to reduce the deficit and it's going to require higher taxes to do it.

    At least the man has more sense than to say that we can have permanent tx cuts at the same time we have a 1.4 trillion structural deficit.

    His Deficit Commission named the cuts necessary to reduce/balance the deficit and my bet is that he's going to advocate doing that at some point.

    which is way more than the blathering idiot Republicans have done.

    Not a one of them (other than Ron Paul and Paul Ryan) has had the spine to name the cuts needed to balance the budget – and they've had a decade to think it over.

  18. this is truly SHOCKING:

    " Poll Also Finds Voters Were Misinformed on Key Issues"

    "Though the CBO concluded that the health reform law would reduce the budget deficit, 53% of voters thought most economists have concluded that health reform will increase the deficit. "

    …. and then this is TRULY SHOCKING!

    " Those who watched Fox News almost daily were significantly more likely than those who never watched it to believe that most economists estimate the stimulus caused job losses (12 points more likely), most economists have estimated the health care law will worsen the deficit (31 points), the economy is getting worse (26 points), most scientists do not agree that climate change is occurring (30 points), the stimulus legislation did not include any tax cuts (14 points), their own income taxes have gone up (14 points), the auto bailout only occurred under Obama (13 points), when TARP came up for a vote most Republicans opposed it (12 points) and that it is not clear that Obama was born in the United States (31 points). The effect was also not simply a function of partisan bias, as people who voted Democratic and watched Fox News were also more likely to have such misinformation than those who did not watch it–though by a lesser margin than those who voted Republican."


    I think the disbelief of the CBO numbers is most comical because the same folks who say CBO cooks the book – routinely cite the CBO numbers for the current deficit and debt.

    It seems that folks believe the CBO when they want to and disbelieve them when they don't like it.

    The National Academy of Science says that we are experiencing global warming but the critics ignore them to focus their ire on the emails exchanged by the global conspiracy of scientists – no doubt to include those rascals at NAS and NASA and NOAA – all of them obviously corrupted by Obama "plants".

    and now… disrespect of Christmas and Christians by the big bad Reid/Pelosi axis of evil forcing those pious and reverent Republicans to stay in Washington and do their jobs – like the rest of most folks up until Christmas Eve.

    The tears were rolling down my cheeks (all 4) listening to Senator Kohl explain the socialist mistreatment of the Senatorial Christians.

    lord. lord.

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