gentlemenspages.com

The silly, stupid season is upon us already.  Yes, the campaign for President of the United States has started with a vengeance, even though the election is fifteen months away.  It means that we will be bombarded by a relentless barrage of campaigning, most of which will be utter and unadulterated Bull Shit.  Unfortunately, the news media will treat each ridiculous assertion and pronouncement as something sensible to which we should pay attention.   Far from being the seeker of the truth the media will treat each bit of drivel that drips from the mouth of every two-bit politician as if it were the greatest pronouncement to have ever been uttered.  Not only that, but the media will repeat the same garbage day after day after day until our ears literally bleed.

Many of the “new wave” political candidates are from the far right, whose sole aim is to make sure the government endorses their brand of religion, for the purpose of making us believe in their brand of Christianity.  Too bad none of them seem to have read the Bible lately.  There is one passage in the New Testament which I believe applies to virtually every political candidate who claims their brand of politics if “faith-based.”  When told that the Pharisees were objecting to the content of his preaching, Jesus is quoted as having said: “Let them alone; they are blind guides of the blind.  And if one blind person guides another, both will fall into a pit.”  Matthew 15: 14.  I cannot help but believe that many of the current crop of political candidates on the Right are today’s Pharisees.  They are blind to the truth.  If we believe them, we will all fall into a pit.  In fact, we have already fallen into that pit.  The economy is in a shambles because our “leaders” have allowed the greed of un-checked dishonest capitalism to put our economy into the pit.  Whether we will get ourselves out of it depends upon whether we will continue elect politicians who are blind to the truth to Congress and our State Houses.  If we do, we deserve whatever disaster befalls us.

The latest in the long line of Bull Shit to which we have been subjected, and which will continue to be thrown at us is the Right Wing attack on medical insurance reform.  Rather than discuss the issue in a half-way intelligent manner, the right wing kooks think we will be diverted from the extremely serious issues surrounding health care reform by calling it names like “Obamacare.”

Congress passed the Patient Protection and Affordable Care Act in 2010.  Anyone who has paid health insurance premiums or looked at the cost of any kind of surgery or hospital visit of longer than 5 minutes knows that the health care system in our country was a disaster.  While crying poor-mouth, health care insurers have for years treated health insurance premiums as a license to take as much money from each and every citizen of this country as they could possibly gouge out of our pockets.  Congress passed a nearly 1000-page law which attempted to fix the problem.  The Act tried to do something about this problem by the use of five tools:  (1) comprehensive insurance industry reforms which alter private insurers’ underwriting practices, and restrict their premium pricing structure; (2) creation of state‑run “Health Benefit Exchanges” through which individuals, families, and small employers can competitively purchase the new insurance products and obtain federal tax credits; (3) a mandate that individuals must purchase and continuously maintain health insurance or pay annual penalties; (4) penalties on private employers who do not offer at least some type of health plan to their employees; and (5) the expansion of Medicaid eligibility and subsidies. 

The most controversial element of this plan is the provision which requires every person to purchase health insurance.  That requirement was coupled with the requirement that insurance companies cannot disqualify individuals from health insurance coverage, and controls on the premiums which they can charge.  The insurance companies have yelled as if someone has stuck them with a hot poker, although the law does not reduce their premiums by one cent – it only regulates future increases in those premiums.  In fact, the requirement that everyone purchase their insurance virtually guarantees that insurance companies will continue to make millions of dollars for the foreseeable future.   The goal of these requirements was to make sure that everyone has health insurance which is more or less affordable.  The rationale behind requiring everyone to purchase insurance was to take individuals who could not obtain or afford insurance in the past off of public aid and charity, by making insurance affordable, but at the same time requiring them to obtain that insurance.

The insurance companies and the politicians they have purchased with their campaign donations ignored the fact that this scheme virtually assured insurers profits for the indefinite future, and screamed that the scheme deprived people of their individual rights.  The theory was that the requirement that everyone purchase health insurance deprived everyone of the right to be uninsured, and there right to be incapable of paying their medical bills when they came down with cancer or some other catastrophic disease.  Interestingly enough, few poor folks or union members who have fought to guarantee that their employers provide group health care were among those who objected to the government taking this freedom from them. It truly warms the cockles of the heart to see that Big Insurance is fighting for our freedoms – at the same time it has its hand deeply into our wallets.

Despite the good intentions of Congress in making it mandatory that everyone obtain health insurance coverage, the manner in which it went about that requirement was more than a little strange.  That requirement was accomplished solely through the Internal Revenue Code.  Anyone who could not prove to the IRS that they had insurance coverage were required to pay a monetary penalty – an additional tax.  In the first year of the plan, 2014, the penalty ranges from t $95 up to a percentage of the individual’s income up to the national average premium cost for a certain kind of coverage.  This plan differs from Congressional programs in the past where people were encouraged to take certain actions (such as owning a home) by giving a tax credits or deductions from the income on which they must pay taxes.  Rather than encouraging people to take actions politicians thought were good for them by giving them a benefit if they did so, they took exactly the opposite approach.  Here, if you don’t do what Congress says, it will fine you for acting the “wrong” way. 

A careful reading of the law leads one to wonder exactly how serious Congress was in its attempt to force everyone to purchase health insurance.  While you are supposed to figure out a penalty against yourself for failing to buy health insurance in filling out your income tax form, there is no penalty for failing to pay this tax.  No interest accrues if you do not pay the tax.  The statute contains mechanism by which the IRS can collect this tax from you.  It cannot levy on your property for failing to pay this tax, as it can for failure to pay income tax.   The only way the IRS can enforce this tax is to offset any amount owed for this particular item against any refund which might otherwise be due to the taxpayer. 

As anticipated, the Republicans couldn’t wait to attack this law in the courts.  They did not hold back in their attacks.  They claimed that the entire statute was unconstitutional.  That battle is not yet over.  However, despite their press releases, the right wing has not been particularly successful in its wholesale attack on this statute.  Some courts have held parts of the law unconstitutional, but have upheld most of its provisions.  As with all political claims, claims of victory against “Obamacare” are wildly overblown.  The fact is that most of the law has been upheld by the Courts.

The most recent decision to consider this statute is the Court of Appeals for the 11^th Circuit based in Atlanta.  By a 2-1 decision, the Court declared one portion of the law unconstitutional, but upheld the rest.  The only portion of the law the majority of the judges could find unconstitutional was the requirement that everyone must purchase health insurance.

The basis for this requirement is that portion of the Constitution known as the “Commerce Clause, ” which allows the federal government to “regulate commerce among the several states.”  The meaning of that clause has grown over the years.  As our economy has become more interdependent, it has become almost impossible to find some part of any business transaction which does not cross state lines.  Other than a farmers market where local residents buy produce grown or manufactured by local farmers or artisans, virtually any other transaction, from food to underwear, involves something grown or manufactured in a state other than that in which the ultimate consumer lives.

It was on this theory – that medical care affects everyone throughout the entire country, and has an impact on everyone else – that Congress rested its authority to require everyone to buy health insurance.  It is under this authority that the courts have upheld the laws against race, sex and age discrimination – because such discrimination has an effect upon industry, commerce virtually every aspect of the lives of everyone throughout the entire country. 

While we are all inter-connected and interdependent in many ways, the courts have held that there is a limit upon what Congress may regulate under the Commerce Clause.  Reviewing the recent decision in which the Supreme Court has found that Congress overstepped its bounds under the Commerce Clause, the Court of Appeals found that this requirement that every adult individual purchase health insurance fell within that category of activities which fall outside the reach of the Commerce Clause.   One of the key tests is whether the activity sought to be regulated by the federal government is economic of non-economic.  In the words of the Court, in order for Congress to exercise control of an activity under the Commerce Clause,  “require[s] a

tangible link to commerce, not a mere conceivable rational relation.”  The Court concluded that the Supreme Court has placed two broad limitations on Congress’ exercise of the Commerce Clause:  First, Congress’s regulation must accommodate the Constitution’s federalist structure and preserve “a distinction between what is truly national and what is truly local; Second, the Court has repeatedly warned that courts may not interpret the Commerce Clause in a way that would grant to Congress a general police power, “which the Founders denied the National Government and reposed in the States.”

In attempting to distill these limitations even further, the Court of Appeals observed that while these structural limitations are often discussed in terms of federalism, their ultimate goal is the protection of individual liberty; . . .  the Constitution divides authority between federal and state governments for the protection of individuals.”  This is a divide and conquer approach.  If you make different governments jump through different hoops before they can affect what each of us does on an individual basis, it is more likely that the interference with our individual actions will be subject to less restrictions.                                          

The Court of Appeals found that the attempt to force everyone to purchase health insurance simply could not withstand these tests.  The Court pointed out that any valid regulation of commerce power operaties on already existing or ongoing activity.  The Court however, found that the failure of some folks to purchase insurance cannot be neatly classified as either “economic activity” or “noneconomic activity.”  Rather, the Court formulated the ultimate question to be: “Whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives.”  Put in these stark terms, the only possible answer to the question is “NO.”  The Court simply could not believe that the Constitution gives Congress the power to direct and compel an individual’s spending in order to further its overarching regulatory goals, such as reducing the number of uninsured and the amount of uncompensated health care.”  Among other arguments, history demonstrates that Congress has never before attempted to make such an intrusion into the lives of each individual, by forcing them to spend money on some governmentally mandated subject. 

The other obvious argument against this governmental power is: Where does it stop?  If the government can force each one of us to buy health insurance, what other items can those blind politicians of whom Christ was so contemptuous, find to force us purchase “for our own good”?   I for one, agree with the Court of Appeals that regardless of the purity of its intentions in this case, Congress simply does not have the power to force any of us to spend money in any particular way.

What is so perplexing about this situation is that there is a very simple way – tried and true, and upheld by the Courts time and time again – by which Congress can legally encourage people to purchase health insurance.  It can merely allow those who choose to purchase that insurance to deduct the premiums they pay from the income on which they must pay income taxes – or if they are really serious about it, give everyone who purchases such insurance a direct credit against the taxes they owe.