Ron Morley's Freedom Blog : Federal mandates

Will Congress disobey the Consitution, again? Yes, if it passes Obama's health care "reforms"

Ronald D. Morley — Thu, 01 Oct 2009 18:20:00 GMT

One of the things which has gotten less attention than it needs in all the noise that has been generated by the debate over health care reform is one that is fundamental to not only health care, but the very manner in which our country is governed. Simply stated it is this: can the Congress legally mandate changes to our health care system and then turn the operation over to bureaucrats? According to our Constitution the answer is also very simple: No. The reason lies in the very first line of the Constitution proper where, in Article I, Section 1 it says: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. “ And yet, turning legislation, that is the making of the laws under which we all live, over to an ever growing Federal bureaucracy is exactly what the proponents of “change” wish to do. You see, once the Congress passes the law enabling changes to how the nation's health care is provided, the details of its implementation – the actual writing of the rules, that is the laws, defining how things will work – is turned over to some Federal agency.

I realize that I'm out of step with the times on this issue, but this is certainly not what the Founding Fathers intended for our government to be. You see, not only do bureaucrats make the rules but they also, via the mechanism of so-called “administrative courts” decide how those rules are to be enforced. In effect they get to act as law makers, law enforcers, and judges. Combining these three functions under one roof is certainly not what those who spent considerable time and effort figuring out how to separate them intended for our nation. Our Founding Fathers set forth the principles of separation of powers not because they wanted to make our government complex but because they recognized that doing so would help to prevent the rise of tyranny. They counted on the greed for power that is present in the heart of every politician to maintain that separation: they believed that the Congress would act as a check on the President and the Courts would act to check the power of both. They did not dream of the possibility that the three branches would collude to increase the power of all of them so as to be able to kill the liberty and freedom that they had struggled so hard to obtain and pass on to future generations. But that is precisely what has happened.

For many years our Constitution worked pretty much as intended. While it did so Americans not only saw their country grow in size, but also in economic power, so that by the time of WWI our nation was the largest economic power in the world, having overtaken Great Britain in the 1880s. In a space of less than 150 years our country went from being so feeble that its very continuation in existence was in doubt for many years, to a position of world leadership – all under the basic structure that had been laid down in the summer of 1787. There had been a few deviations from the intent of the Founding Fathers, but they were few and far between and, as yet, the power of the Federal bureaucracy was still very limited. All this happened during a period of change in technology, science, and the arts such as the world had never seen before – a period which saw the average American's yearly income rise considerably even though there were millions of people immigrating to this country. Not everything was perfect, understandable as we are dealing with humans here. But, in any case life got better for the vast majority of people over a considerable period of time under a Federal government that remained small and which by-and-large lived according to the rules set up in the Constitution.

Things began to change some in the early years of the 20^th century with the growth of the so-called “Progressive” movement – a movement which held that people would be better off under a government which was run by an expert bureaucracy: a system which allowed outside third parties to make the decisions about how others should act, because they supposedly knew what was best for them. The movement made some progress and managed to establish such now monumental bureaucracies as the FDA and the U.S. Department of Agriculture. On the whole, though our system of government still worked as the Founding Fathers intended it should. The executive, legislative, and judicial functions of government were kept separate and people were still largely able to live their lives free from the interference of the government.

All that changed with the coming of the Great Depression and Franklin Delano Roosevelt. He was elected in 1933 on promises to bring a “New Deal” to Americans; a government which cared about them as individuals, one which would bring order and stability back into their lives, one which would provide them jobs, certainly not one they should fear. And Americans bought it as they valued economic security above freedom and liberty. FDR, for his part, kept his promises, pushing a veritable deluge of legislation through the Congress in his fabled first 100 days in office. He created a forest of Federal bureaucracies with a plethora of initials to go with them: the NLRB, NIRA, CCC, WPA, and a host of other agencies and programs came into being.

The Supreme Court held back the tide of socialist legislation finding that many of Roosevelt's new agencies and laws were unconstitutional – mainly on the grounds that the Congress was delegating its legislative powers. At that time the Court recognized what most Americans seemingly did not – that allowing the consolidation of legislative, enforcement, and interpretive powers to reside in one agency was a sure path to the destruction of the liberty and freedom which made the United States unique among the nations of the world. The Court realized the truth of Benjamin Franklin's old adage about giving up a little liberty for a little safety and losing both in the long run.

FDR was furious that the Supreme Court would dare to stand in the way of his schemes to vastly expand the power and reach of the Federal government and launched his infamous attempt to pack the Supreme Court with justices who would rule in his favor. It was at this point that a couple of the judges on the Court, fearing more for their future job security than they did for the Constitution, had a change of heart and began to rule in favor of the Administration on many of the contentious issue of the day. The lack of the courage of their convictions on the part of two or three men in 1937 has doomed Americans to lives in which the wishes of unelected Federal bureaucrats count more than our own in many areas of life.

And it's all built on a legal fiction. The fiction is that the Congress hasn't really delegated its legal authority to make the laws because it continues to exercise some type of “oversight” of the powerful bureaucracies it has created. The fact that Congressional oversight, certainly in its ability to control the day to day operations of our multitude of Federal agencies, is a farce, doesn't keep the courts from insisting that it exists. A few Congresscritters holding hearings into some matter whenever the public outcry becomes such that they fear for their own re-election, particularly when no individual is held accountable for his or her actions, is not oversight: it is political theater designed to keep the masses happy. This is another insistence in which clever politicians and lawyers have subverted the clear meaning of the Constitution to the detriment of the American people. Yet most people don't even stop to think about it so ingrained has the apparatus of oppression become in our lives.

Now, the President and his supporters wish to expand the reach of the government into the one area in which its control has been, to this point, relatively controlled. The supporters of the President's scheme to “reform” health care are at pains to point out that there really in no difference between having health care decisions made by lackeys of the State or employees of health insurance companies. They fail to realize that there is a critical difference – if a health insurance company too often abuses its customers it finds that those customers begin taking their business elsewhere – an option that will not be available once Federal bureaucracies are set up to make health care decisions for us. The private insurers are not perfect. It is important to realize that some of their policies are brought about by Federal government regulations that are already in place concerning rates of reimbursement for procedures and limits on lifetime expenditures for things such as durable medical equipment. It is doubtful that putting more power into the hands of unaccountable minions of the State will improve the overall quality of health care in this nation.

The American public needs to wake up and realize that it is the results of policies, not the intentions behind them that are important in the final analysis. I may want to set up a government-mandated wage structure that insures everyone who works a decent wage. But if the result of the policies that I put in place to achieve that goal is that many marginally employable persons lose their jobs because businesses can no longer afford them at my new higher wage rates I have actually achieved the result of consigning more people to the welfare rolls or life on the street. Certainly I would not expect to be rewarded for having brought about such a debacle, but that is exactly what happens when Americans continue to return the same old faces to Congress election after election. Given the lengthy track record of policy failure that the Federal bureaucracies have it is doubtful that they will do any better if they are given the power to directly govern the course of health care in this nation. And that's what will happen if Congress passes such a law because the Congress will give up its legislative power as part of the deal, even though out Constitution says that it cannot do that. Federal employees will have the power to make the laws, enforce them, and interpret what they mean (becoming judge, jury, and, in some instances literally, executioner). If you think our current health care system is a mess give it a few years under the gentle ministrations of an all-powerful bureaucracy – it will get worse.

Health insurance? We don't need no steenking health insurance!

Ronald D. Morley — Wed, 30 Sep 2009 00:41:00 GMT

I've been listening to NPR's coverage of the national debate over the supposed health care crisis in the United States. This evening's report mentioned hearings that were held today by a Senate committee that is trying to come up with a bill that will garner enough votes to avoid a filibuster by opponents of the measure. One of the items that was being discussed, and which seems to be locked in to all versions of the reform bills under consideration, is a mandate that all Americans purchase health insurance or face fines and/or other punitive measures designed to ensure compliance with the wishes of the State.

And it seems as though no one dares to point out what an incredibly stupid thing such a mandate would be. Let's leave aside for now the libertarian objections to such a provision and look at this on its own merits for the time being. Bear in mind that one of the goals the reformers are aiming for is to achieve a reduction in the cost of health care. And one of the first things these altruistic power-brokers want to do is put the coercive power of the State to work ensuring that every person in the United States is covered by health insurance; for their own good, of course.

Though arguing from analogy is, necessarily, a difficult thing to do as no two situations are identical, there is one area from which we may get a good idea of what lies ahead on the path of mandating the purchase of health insurance. Auto insurance is a field from which we can certainly get some idea of what will happen when the State requires everyone to be covered by some form of health insurance. If what has happened here in Michigan with mandatory auto insurance coverage is any indication the results of a Federal health insurance mandate are going to be anything but pretty. Michigan is one of several states that bought into the argument that our court systems were being overwhelmed by the numbers of auto accident suits being filed and that auto insurance was getting too expensive. So the state's legislators enacted something known as “no fault” automobile accident insurance. The idea is that a person's own auto insurance provider will cover the costs of damages, health care, and so on. Whenever a policy holder is involved in an accident the insurance provider simply pays the bills and life goes on. Not only was this scheme supposed to lessen the load of civil lawsuits working their way through the court system, but auto insurance costs were supposed to go down because insurance companies would no longer need to pay for expensive lawyer's fees associated with all of those court cases: at least that was the theory. To ensure that everyone benefited from this wonderful new idea the Michigan legislature mandated that everyone purchase auto insurance, at certain specified minimum levels.

The reality has, surprise, surprise, been considerably different from the roseate picture that was painted by the proponents of the original measure. For one thing mandating the purchase of auto insurance handed the insurance companies a captive group of customers; customers who had to buy their product regardless of the cost. Unsurprisingly, the cost of auto insurance in Michigan has done nothing but increase since the “no fault” law was put in place back in the 1970s. Among the conclusions reached in a 2005 study by The Foundation for Taxpayer and Consumer Rights are these:

Premiums are 19% higher in no-fault states than in personal responsibility states.

States with some form of no-fault insurance are consistently the highest priced in the nation.

Auto insurance premiums rose 92% faster in no-fault states than in personal responsibility states between 1998 and 2002.

(see: http://www.consumerwatchdog.org/documents/1812.pdf for more details)

According to an item from the Mackinaw Center for Public Policy: “Even when one disregards the high level of taxation to which the insurance industry is subjected, the additional cost built into an auto insurance policy in Michigan as a result of government's many other intrusions in the market is staggering. For instance, laws force insurance companies to sell drivers more insurance than even the companies believe they need. Companies are prohibited by other laws from assigning risk based entirely on where losses occur, forcing those who live in low-risk areas to subsidize those who live in high-risk areas. These edicts accomplish political goals that could have been paid for out of general revenues, but the Legislature has found it easier to hide them in the cost of insurance. “ (See: https://www.educationreport.org/article.aspx?ID=94)

Other studies of the field indicate that Michigan is not alone in experiencing increases in the cost of auto insurance following the passage of laws that mandate the purchase of it. The cost increases come as no surprise and were predicted by opponents of the Michigan law prior to its passage. After all, it's only natural for businesses to raise the prices of their goods and services when they are guaranteed sales by virtue of the police power of the State. There is some limit to the cost of auto insurance as competition does still exist within the insurance marketplace, but those limits are higher than would be the case in a marketplace in which the customer is free to walk away from the market entirely if she finds nothing that meets her needs or budgetary requirements.

Unless the Federal government is going to place arbitrary limits on the prices that may be charged for differing health insurance policies there is no reason to believe that what has happened in Michigan and other states which mandate the purchase of auto insurance will not happen on a national scale with health insurance. Along with higher insurance costs will come the need for higher levels of subsidy payments to those whom the all-knowing State decides are too poor to pay for the insurance themselves. That's one of the reasons that President Obama and his close allies are pushing so hard for the so-called “public option” for the purchase of health insurance. They see such a provision as a means of ensuring that health insurance companies do not take undue advantage of the consumers who will be forced to purchase some product they may not want or need. The public option is also a means of dressing up the wolf of a single-payer insurance scheme in the guise of the sheep of consumer protectionism. Of course, whether or not the “public option” is included in the final law the costs of health insurance will continue to rise. The proponents of the public option won't admit that, but it is inevitable. The actual cost increase may be hidden within the general tax increase which will be necessary to pay for the President's brainchild but be there they certainly will be.

There is much to dislike about any of the proposed “reforms” of the health care system as all of those put forth by the politicians in Washington result in an increase in the power of the State. However, the idea of mandating the purchase of health insurance goes beyond simply putting in place new regulations for doctors and other health care providers to keep track of and hope not to transgress. Mandating the purchase of health insurance not only increases the intrusions the Federal government will make into all of our lives, it will also directly add to the already high cost of health insurance. This cost increase will “require” the State to further subsidize the cost for low income households (which means raising taxes on those in the middle class and above to pay for that “benefit”). The result will be increased costs, heightened Federal government intrusiveness into all of our lives, increased levels of taxation, and most likely of all – no improvement in the overall health of the American people; which is supposedly the object of this whole exercise in futility. So long as the Federal government is not forced to give up its role as regulator of the nation's health care the situation will not improve – we'll simply end up back here again in a few years listening to the familiar complaints of the regulators (who will have failed in meeting any of their supposed objectives) that they need ever more money and power to achieve their goals.