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Judge Hudson Reminds Me: We Need Single-Payer!

I am not fond of the health insurance mandate included in the Patient Protection and Affordable Care Act. I agree with Michael Moore that people aren't cars. If health insurance is so important that it warrants a government intervention in the free market as drastic as the insurance mandate introduced to us by Republican Mitt Romney in Massachusetts, then we should skip the middle man and move straight to a universal single-payer system that would guarantee coverage for every American.

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SD Blogosphere Reaction:

I thus react with some ambivalence to Judge Henry Hudson's ruling in favor of the Commonwealth of Virginia challenging the insurance mandate on Constitutional grounds. The ruling is pretty thin gruel in some eyes, a thorough rejection of Obamacare in others.

Hudson rules on two key points. He accepts Virginia's argument that the enforcement of the insurance mandate is a penalty, not a tax. That may not matter to the average citizen—either way, it's money out of your pocket—but it matters to the court and the Constitution. If it's a tax, then Congress can act under the General Welfare Clause, and pretty much every court challenge to health care reform ends. If it's a penalty, then Congress is acting under the Commerce Clause.

That's where things get interesting. Virginia's challenge, like others, hinges on the idea that Congress act under the Commerce Clause to compel people to participate in interstate commerce by buying health insurance. The federal government says everyone eventually participates in the health care "market," and choosing not to buy health insurance shifts costs to everyone else in the market, so federal requirements to maintain financial responsibility for one's own health care via insurance are justified regulation of interstate commerce. Judge Hudson sides with Virginia: he says the government can regulate activity but not inactivity.

Yet state and local governments apparently retain the authority to regulate a host of other economic inactivities. South Dakota still penalizes you for not buying car insurance. The sheriff will nab you for vagrancy if you don't buy or rent a domicile of some sort, and the city or county will come after you again for nuisance violations if you don't engage in enough economic activity to maintain that domicile sufficiently. We punish parents if they don't purchase sufficient food, clothing, and shelter for their children. And not that I need much persuading, but the government will get on my case if I don't engage at some bare minimum in the clothing market.

Judge Hudson's ruling does not threaten state insurance mandates; Hudson appears concerned only with "unbridled exercise of federal police powers."

But the ruling brings me back to my basic argument for a universal single-payer health insurance system. Insurance works better when you get more people in the pool to share the risk. The best insurance possible would be the biggest pool possible: all 307 million Americans in one big pool. We all pay for one big army to protect the entire country from invaders and terrorists and other disruptive forces. We could all pay for one big army of doctors to protect us from the physical and economic devastation of disease and injury.

The right way to provide that universal protection is to stop viewing health care as a matter of commerce (health care doesn't work by free market principles) and start viewing at as a general welfare issue.


  1. Anonymous 2010.12.14

    your examples of government regulating inactivity are all state laws and state actions to regulate it - you aer proving the state of Virginia's point. See - you are an effective advocate - and deep down a conservative :)

    --Lee Schoenbeck

  2. caheidelberger 2010.12.14

    But Lee, does that mean that all the conservative squawking about government intrusion in our lives is really only opposition to action by the federal government? Is the conservative line really that Mitt Romney's state mandate is perfectly fine, while the identical federal mandate is unacceptable? If you could show me that the 50 states could enact their own identically intrusive versions of the federal health coverage act and that Kristi Noem and the other repeal-shouters wouldn't flip, I'd be... impressed with their commitment to strict interpretation of the Constitution.

  3. nonnie 2010.12.14

    Read this and see how well Romney's vision of health care reform is working in MA. Basically, all the arguments for it are being proven wrong.

    Here is another site about firms canceling insurance.

    And another:

  4. Anonymous 2010.12.14

    the Judge does law, not politics. He was referencing a specific provision in the US Constitution. You claimed he was in error, using examples that proved his point - under the Constituitional provision. Now, when faced with that reality, you shift to argue that some how his interpretation is justified if every state acts the way you want them to act. I'm not advocating any system, Cory, I'm just pointing out what the Judge says the provision in the law means. Your argument is a ship passing in the night on that point - but I understand it is part of your continued advocacy for your health care position. Your argument just doesn't prove your point -- the negative wins the flow :) Lee S

  5. caheidelberger 2010.12.14

    I accept, Lee, that the judge is making a purely legal, not political, argument. I did not claim he was in error. Were I filing amicus curiae, I would wage a an argument beyond analogy to state law. Were I Secretary Sebelius or President Obama, I would drop the silly tax-not-penalty line and focus on the activity-inactivity distinction the judge leans on (choosing not to buy insurance is an economic activity with consequences for a warped market that depends on mass participation). Or I would just drop the case, impose a new tax, and offer a robust public health insurance option.

  6. Tony Amert 2010.12.14

    I vote for option B. Drop the penalty, add a tax, and go universal coverage.

  7. Bill Fleming 2010.12.14

    It seems to me that the precedent for this is already in place. We're already obliged by the Fed to buy several forms of insurance, Social Security and Medicare being the most obvious.

    I suppose it depends on whether you see the product as being "health care delivery" or "health care insurance."

    As we all know, there are good arguments, that illustrate that (sadly) there is indeed a difference.

    Lee, think of it a "outsourcing" our National Health program. It is strange indeed to see the GOP arguing against their own idea here.

    Yes, mandatory health insurance is a Republican idea, originally sponsored by those who are now most vociferously opposing it.

    When the Clinton administration attempted to achieve health care reform, Orin Hatch co-sponsored legislation that included an individual mandate alongside Sens. Chuck Grassley), Bob Bennett and Kit Bond.

    Be careful what you ask for, boys.

  8. Troy Jones 2010.12.14

    For years, I've said there was three options with regard to health care insurance.

    1) Continue with the current system.

    2) Adopt the GOP reforms regarding pre-existing conditions, portability and opening up heath insurance across state-lines.

    3) Adopt the Dem. idea of single payer.

    Obamacare was never viable from an economic, constitutional, or practical level.

    I say let's go back to repeal Obamacare and go back to #1. Then the two parties can present their best arguments of the merits of the only two "reforms" economically and Constitutionally viable.

    Even pretending there is anything good and viable about Obamacare is a lie. Let's quit living a lie.

  9. nonnie 2010.12.14

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