Archive for the Health Care Category

Richard Epstein

Observations on ObamaCare

There are a number of constitutional and logical slips in the seductive argument that Paul Krugman puts forward in favor of the constitutionality of the individual mandate.  First, the question why any form of health insurance involves a question of “interstate commerce” at all.  Under the current elastic and indefensible definitions of interstate commerce, any form of local activity that influences the quantity and price of goods in interstate commerce becomes itself a form of interstate commerce, at which point there is precious little that lies outside that domain.

Note the potential reach of this argument  by the standard definition that Krugman embraces, getting sick and buying insurance influences the ability of the United States to deal with foreign nations, so that Congress can presumably regulate it as a form of commerce with foreign nations.  More impressively, since the health of their populations influences health in this country, why not say that the Constitution gives the Congress the power to expand the health care benefits that Canada, Great Britain and the rest of the world supplies to their own population.  It is a form of constitutional newspeak to treat all these local activities as though they were commerce among the several states, when they are, most emphatically anything but.

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Richard Epstein

By now everyone knows that the Supreme Court will take up the watershed case of this century, when it examines the constitutionality of the Patient Protection and Affordable Care Act—the ACA or ObamaCare to both the friends and enemies of the Act. I have coauthored with Mario Loyola of the Texas Public Policy Foundation a brief that sets out our case against the constitutionality of the Act.  I have also written elsewhere about the complex historical evolution of the commerce clause.

I am relieved to learn, after all, that the case against the individual mandate is so trivial that three eminent legal authorities, Jeffrey ToobinLinda Greenhouse and Dahlia Lithwick, found it easy to put me out of my intellectual misery by announcing that the act is manifestly constitutional on the indubitable authority of Wickard v. Filburn, which in their view has become the constitutional pillar of a boundless federal power.  Indeed, their collective wisdom is such that the case for the constitutionality of ObamaCare is so self-evident that only dark political motives can account for the willingness to overturn a statute whose impeccable social credentials make it the culmination of a long overdue reform movement.

Let me confess to be one of the unpersuadables.  There is of course a powerful correlation between those who praise ObamaCare and embrace its constitutionality.  There is none of the typical posturing which says that we’ll leave it to Congress to deal with the wisdom of the laws while we merely determine their constitutionality.  However on this question, turnabout is fair play, for we should look at the wisdom of statutes, or their lack thereof,  in order to orient ourselves with respect to their constitutionality.

Start with Wickard, which in soothing terms had as its objective the “stabilization” of agricultural markets under the Agricultural Adjustment Acts, by allowing the government to even out prices during good times and bad.  All that is a polite way of saying that the government should get into the business of organizing agricultural cartels, which can then reduce output by burning excess crops or forcing land to remain idle in order to reduce supply. At the other end of these cartels lie consumers, who suffer manifestly from the high prices and reduced supply that made it all the harder for them to weather the 1930s depression.  Roscoe Filburn was a cartel-breaker because he sought to escape the regulation and increase supply by feeding his own grain to his own cows.

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Richard Epstein

This week, the United States Supreme Court has on its plate the defining legal issue of our time—the constitutionality of the Patient Protection and Affordable Care Act (ACA), which I have already commented on from a doctrinal and historical perspective. In this column, I will show how fatal defects in Obamacare’s structure undermine the constitutional case for key provisions found in Title I of the law (“Quality, Affordable Health Care for All Americans”), which regulates the private insurance market.

For openers, the ACA is subject to the law of unintended consequences. The law may proclaim that it protects patients when it in fact it restricts the health-care options of those it’s intended to protect. The ACA says that it will increase access to affordable care when in fact its endless mandates will drive up the cost of care. The false advertising of the ACA’s title conceals a wealth of difficulties with its internal design, which make its scheme unsustainable in the long run.

One unfortunate byproduct of the obsessive emphasis on the individual mandate—the requirement to have health-care insurance or pay a fine—is that it diverts attention away from the many other unsound provisions of the law. The Supreme Court need not fear that striking down Title I of the ACA will deny Americans needed health care. Rather, its implementation will have that effect.

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Henry Miller

The Cigarette Smokescreen

Cigarette smoking is one of the major preventable scourges of human health. Public health experts and regulators—and yes, even smokers—know it. But by being politically correct and focusing on unproven or misguided approaches, the FDA is passing up a historic opportunity to mitigate the health effects of cigarette smoking. Specifically, FDA officials are struggling to reconcile science and politics in applying their new powers to regulate tobacco. They aren’t succeeding.

As a result of the landmark 2009 Family Smoking Prevention and Tobacco Control Act, the FDA was tasked with regulating not just cigarettes, but a range of tobacco products. The agency’s oversight of tobacco is fundamentally different from any other product it regulates simply because tobacco is an inherently, irredeemably dangerous product. Unlike drugs, it isn’t beneficial in any way; and unlike food, it isn’t a necessity.

The legislation gives the FDA the authority to review and ban proposed new products unless they are proven to significantly improve public health. This has already led to unanticipated legal and scientific arguments over so-called “reduced harm” products.

The director of the FDA’s Center for Tobacco Products, Dr. Lawrence Deyton, seemed to be on the right track, at least in principle, when he told the Society for Research on Nicotine and Tobacco last year that “complex problems require multi-faceted, comprehensive approaches based on the best available science.”

However, the agency’s approach to several regulatory issues belies Deyton’s homage to science (a traditional trapping of many a regulator assuming a new office).

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James Huffman

The Contraception Hawks

For decades American politics has been poisoned by the great abortion debate. Never mind that the economy is in the dumps, the national debt is spiraling out of control, the nation’s infrastructure is crumbling, health-care costs are rising (even faster with the onset of Obamacare), and each year our kids learn a little less than they did the year before. So candidates for public office better know where they stand on abortion, because they will be asked again and again. And they better not flip-flop on the issue.

Now, lo and behold, contraception has yet again surfaced as the social policy issue of the day. So, candidates for President of the United States better know where they stand. Making contraception center-most in the campaign for president in 2012 is like making a black-and-white, silent movie in the twenty-first century: Who would guess that it would win the Oscar for best picture? And who would guess that forty-seven years after Griswold v. Connecticut, contraception would make a return to the silver screen of national politics.

Before candidate Rick Santorum resurrected the long moribund topic of the acceptability of contraception, the question du jour was whether the Obama administration’s newly promulgated rule on the provision of contraception services violates religious freedom or supports the freedom of women to control their reproductive lives. Now the question is whether the government has a role in regulating contraception. The response to that question should be: “You’ve got to be kidding! Of course there is no role for government.” But given that the question is now on the front page of every paper in the land, perhaps we can make some lemonade from this lemon.

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Richard Epstein

There are many horrible features about the President’s birth control mandate, with respect to religious institutions.  The Catholic Church, rightly in my view, regards this federal imposition as a mortal threat of its right to follow Church teachings on core issues of belief, which seems to be an interference with the guarantee that the Congress will do nothing to prohibit the “free exercise” of religion.

To that claim, there are several replies.  The first is that the operation of medical facilities in accordance with Church teachings is not the exercise of religion, which only encompasses matters of worship and ritual.  That view is hopelessly narrow, given that the exercise of religion has to do with the way in which religious institutions interact in the world.  Indeed the recent Supreme Court decision Hosanna-Tabor Evangelical Lutheran Church v. EEOC makes clear that the choice of teachers for religious education fall within that core.  The issues of abortion, contraception, and sterilization get far closer to the core.

It has been often been stated that even if these activities are covered, the Constitution does not protect their exercise when they are limited by a neutral law passed for nonreligious purposes that impacts religious and nonreligious institutions alike.  The position of neutrality is taken inUnemployment Division v. Smith, a decision written by Justice Scalia.  That decision does cut against the claim of religious liberty because it indicates that the size of the burden of religious choice has nothing to do with the free exercise claim.

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Russ Roberts

The insanity of health insurance

I just received a lovely email from my old friend, Donna Brazile. OK, we’re not old friends. For some reason she has decided to put me on her email list. She writes:

This week, the Senate votes on a GOP amendment that would let your employer decide what health care you can receive. If they morally object to birth control, it’s gone. If some corporation thinks cancer screening is too expensive, forget it.

This amendment is dangerous, and the people pushing it need to lose their jobs.

It is insane that we get our health care from our employers. That happens because we have given a tax advantage to in-kind compensation such as health care. It’s a horrible idea and it leads people to complain about our employers deciding what health care we can receive. Our employers are just a conduit for government mandates, rent-seeking and inefficiency related to health care. What the government has done is tax-advantage health care via employers and then tell them what has to be covered. So the real outrage is that because of this, the government mandates the mix of my compensation package, biasing it toward a luxury health-care package that is the result of special interest clamoring.

Insane.

The people who think it’s normal–the ones who work in the big white domed building downtown from where I live–should lose their jobs.

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Russ Roberts

Mitch Daniels’ news flash

There was actually a news-worthy moment in Mitch Daniels response to President Obama’s State of the Union address. He said:

Decades ago, for instance, we could afford to send millionaires pension checks and pay medical bills for even the wealthiest among us.  Now, we can’t, so the dollars we have should be devoted to those who need them most.

The mortal enemies of Social Security and Medicare are those who, in contempt of the plain arithmetic, continue to mislead Americans that we should change nothing.  Listening to them much longer will mean that these proud programs implode, and take the American economy with them.  It will mean that coming generations are denied the jobs they need in their youth and the protection they deserve in their later years.

I would prefer to slowly dismember Social Security and Medicare and instead let us re-learn how to take care of ourselves and our neighbors without going through Washington.

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