Morals and Ethics, Health Care and Government

The disaster that is Obamacare continues to point to the ever widening problems of having a government attempt to impose its own idealistic ideas of what the process is of providing health care, which is not the same as 'health insurance', runs into obstacles where simple ideology driven bureaucratic rules and regulations run up against the common man and his enterprises.  Of the most concerning is the attempt to impose regulations mandating coverage of abortion and 'birth control' upon diverse groups who have religious teachings that make those immoral practices.  They are not just immoral for oneself but, to hold true to their religious teachings, it is immoral to support these services in any real way.  Thus the first of many suits, and truly it should be a class action suit, is one by Hobby Lobby that refuses to obey the power of government over religious principles in their common enterprise Hobby Lobby.  I'll use a Hot Air article as it is where I left some commentary and I will give that to you in an unvarnished way:

Religion is the observation of holding oneself to account to set of beliefs that have real world practice attached to them. Corporeal individuals may not have that transgressed by mere human law as the observance and practice is to a higher moral authority than any government can ever hope to be. The corporate entity is a voluntary association of individuals under a set of agreements and, as such, may have religion as their basis in practice and observation which includes a moral code and doctrine behind it.

No one is forcing employees to work at a such a concern that has such requirements and performs such practices. Even if you disagree with them and sign up to the corporation, you are not allowed to enforce your belief system upon the others in the voluntary cooperation out of respect for their beliefs. If you want to be employed by a place that offers you services that don’t have such restrictions then go find them, you are not forced to work at a concern that does not share your practices nor your beliefs.

I have my own problem with corporate entities, but they tend to dwell in the realm of duration and lack of finality of them when they allow, abet and encourage criminal activities amongst its members to the benefit of the corporate entity. Three Strikes and you’re out would be a start to ending such abuse, but that is a far different thing than the internal practices that are not criminal in nature and adhere to a known set of moral standards that the company upholds for those voluntarily associating with it.

Where does the government get off telling a corporate or corporeal entity that they must support practices that are considered immoral by their belief system? Those who abjure such practices are not in any way, shape or form utilizing them and if others wish to do so then let them PAY FOR IT based on some other agreements but do not force those who hold a higher standard to paying for something which they consider to be immoral in the extreme.

This doesn’t stop at the corporate level and paying for abortion and contraceptive access is that camel’s nose under the tent sort of deal. What if some fine grandee of a bureaucrat gets through required euthanasia of the old, the sick or the mentally ill? Not just paying for ‘access’ to it, which in and of itself has extreme moral problems attached to it due to the way that bureaucrats are stretching ‘voluntary’ to become involuntary… if government becomes the arbiter of morality, then we have truly lost our way as it is only fit to punish things that are immoral that physically effect individuals and STOP THEM and PUNISH those who commit such acts. When you force individuals to support things they consider immoral, then where can it draw the line on ANY OTHER act? I have seen governments of men, not of law, and I want nothing, whatsoever, to do with them. And that is coming into sharp focus today more so than at any other time in our history.

ajacksonian on November 29, 2013 at 10:18 AM

All of Obamacare is about substituting the good sense of individuals in procuring methods of health care with that of government regulation, bureaucracy and punishment.  In the past century we have been witness to medical experimentation upon blacks without fully informing them of what they were signing up for, forced sterilization of the mentally ill at government institutions, and we currently have States that have regulations for euthanasia.  These are not questions of speculation but ones of fact done under government auspices, Federal and State, and at the behest of political doctrines and adherents who pushed for such things as eugenics, population control via abortion and sterilization, and having medical personnel 'assist' in suicide.  These are, one and all, moral wrongs in so many religions held by so many believers that it is not funny.  Yet that these things happened is a fact of our history in this Nation and demonstrates the evils of government willing to take expedient means towards ideological ends to the detriment of its citizens.

The Hobby Lobby case is not just about this one corporation, a collection of private citizens chartering a company to do certain legal activities in a voluntarily cooperative manner run by owners who have a belief system that requires their moral adherence to laws that come from a source other than Nature or mere civil government.  To have freedom of expression is not just in expressing oneself verbally but through activities and actions that follow in a given line of conscience that comes from no source under government or Nature's control.  Forming a company to serve the public in certain venues by believers and then running it in accordance with their belief system is freedom of expression and religion, both.

When government seeks to impose its power over the individual and begin to dictate practices that one holds as immoral, then ethics require that those mere civil laws not be followed so as to be true to eternal moral laws handed down from the highest power of God.  It matters not if God is the singular, the plural or a vague understanding of the morality behind the universe and life itself, that one believes in it and is true to it in their daily lives which hinders none, harms none and is widely understood puts this case into a full Amendment I application: freedom of religion, freedom of conscience, freedom of expression and freedom of free association amongst one's fellow citizens.

Civil Government is without wisdom and has problems even finding out what it did last week or last year, not to speak of what it has done decades ago.  It is not a thinking being but a freely made construct amongst the people of a Nation or State to do common activities for the defense and protection of all and, in the case of the US, to stay away from all matters of morals and ethics in following moral practices.  Government itself is a Punisher and necessary evil and not granted power to do good, but to punish the wicked and those who would disrupt society.  The good of society is from its citizens figuring out how to lead good, moral and ethical lives within mortal boundaries of income, savings, sustaining life, creating families, and creating communities in which we all seek to help each other and prosper in that doing. 

It is not immoral to seek to make a profit to sustain a company after paying one's workforce and providing them with agreed upon benefits.  It is not the icon of payment, not the coin or bill or credit exchange pieces, that are evil but only in the pursuit of same without thought to ensuring that it is gained via properly provisioned service or goods under payment contract.  In pursuit of money as its own end, there is no real good, but in pursuit of wealth which is accumulated by providing the best value at the lowest cost to one's fellow man and making a profit to expand such provisioning is true wealth beyond any dollar or penny hoarded.

Providing goods and services by individuals who hold a strict moral code and ethically abide by it is no sin and is not illegal.

Forcing such individuals to support immoral practices with forced payment into a system which requires such support: that is pure evil as it substitutes the power of government for the teachings of God.

And only death, destruction and chaos ever come from that.

Congressional software design

The Affordable Care Act (aka Obamacare) was a piece of legislation that did far more than just try to transform the medical care and delivery sector of the economy and also brought in such things as Student Loans under its heading in a separate section of the bill.  Be that as it may the bulk of the bill dealt with a series of mandates and payments to government (taxes and penalties), and within those the requirement of health insurance companies to provide certain types of care for 'free', plus hand out individual 'subsidies' meant that there had to be a large-scale interplay between private insurers and the public purse.  To facilitate that a series of 'exchanges' were to be set up either by the State governments or, if they opted out of Obamacare, the federal government.  Thus there are a whole list of exceptions, exemptions, requirements and so forth that differ per State that the entire system must provide for, and these vary from State to State, as well.

In the previous part of my life before ill-health befell me, I worked for the federal government on the DoD civil side for an Agency that had some actual things to produce for the military.  As I was technically astute and able to deal with large scale bureaucracies (my prior university experience gave me that) I was able to shift from production work, which I enjoyed, to process improvement (or one of its synonymous variations over time) and then to new system procurement.  Thus I got to learn the government side of contracting, specifications and requirements: the whole series of hoops to go through to show that what you wanted would work, it had a set cost and it would have a series of set functions while interacting with previous work systems.  This required a whole set of understanding from the system level architecture to data file types and their metadata, library storage of digital work, shifting work from physical media to digital media and back again...plus all the network architecture for a closed system, software specifications to do particular types of work, and the equipment that would be required to proof and make press ready printing plates.  I became a one-man band of specialists and held a number of specialist hats for the agency as well as the Contracting Officer Technical Representative (COTR) hat for the project.

In that era of the late 1990's the federal government was shifting from the old procurement systems of detailed specifications and looking to utilize Commercial Off The Shelf technology (COTS) and go from a 'low bidder always wins' to 'best value can win' paradigm.  That last meant that if a contractor actually exceeded minimum specifications and offered more value for the dollar than the lowest bidder, it was possible to seek a change in funding levels with a justification for it.  I got to experience that and a firm from the old 'sole source' days trying to leverage its contacts to win with a lowball and then up the price through a series of Request For Changes (RFCs).  In contracting parlance the RFC can start to add to the cost of the contract if accepted by both sides, although either side can propose one.  The US Navy is infamous for their massive cost over-runs due to the number of RFCs on ship construction... luckily I was working on a simple IT project, but knew the RFC dance from my time in the agency.

For a contract Request For Proposal I had a tight set of specifications, workstation requirements, networking requirements, library storage system requirements, software requirements... an entire system specified for with minimal performance levels to it.  That went about 20% over on final award, but we got way more for that money in the way of reliability and software backing than the lowball bidder could ever provide.  I had spent years working with everyone from every system that would be impacted by this project not just the output groups but those on the input and library storage realm, as well as making the system Continuation Of Operations Plan compliant in case any single site were totally destroyed, so that we could at least get data to a printer with digital systems and get product.

Because I had been through the process improvement dances by attending seminars and inter-governmental meetings and just reading a lot on the subject, I was fluent on things like the Mythical Man-Month and the concept of a Death March development project.  In prior times my agency had a large scale project that suffered from the mythical man-month problem of program management, and it was a Death March as well: it was an IT system specified for in the 1980's, getting first deliverables in the mid-1990's and had a Y2K bug that would kill it.  Some items were delivered mere weeks before Y2K.

When you are specifying for how many people you need to do a project you do it in man hours or man months (or man years depending on the scale of it).  It is a generalized way of estimating how many people you need to do tasks on a project and useful for scaling personnel for a project or program.  So many people to work so many hours on X task gets you so man man hours.  Burden that by 20% and you get a realistic ballpark figure of how many actual people you need.  The burdening is to add in such things as sick time, unexpected delays, bureaucracy, etc.  Unfortunately when you have a project that has had only a few people on it and it is behind on its schedule, you start to try and throw more people at the problem.  These people are not up to speed on the project, may not know all the work that has gone on, and may or may not have the necessary skill sets to do the work.  As a program manager you need those man hours or man months of work in, however, and when you are late you do throw people at the project to burn those man hours up.  What happens, however, is that the delays get longer as the new people do take time to get familiarized with the system and when they make mistakes they have to be caught and then work re-done.  The less familiar people are with the project the more likely they are to commit mistakes which actually begins to set meeting the deadline further back.  Of course to avoid that you add more people to the project!

Ed Yourdon who wrote the Death March book (I read it in 1st edition back in the day) followed through on this mentality to see how modern program managers dealt with the problems of the mythical man-month.  Mostly they hadn't.  But a new phenomena had cropped up and it wasn't just in the Info. Tech. world, either, and that was the problem of changing customer specifications and unrealistic milestone schedules.  A death march project suffers from poor specifications for a system from the start and I read books to try and deal with just that problem as part of my job, too.  With poor specifications and milestone schedules what happens is that a project gets started with one set of specifications that then get changed in whole or in part, and prior work which was accepted now no longer advances the program to its milestones and must be abandoned.  On the IT side, however, some of that is in software code modules which may still have absolutely valid functions to help meet the schedule, so that software is kept for those functions.  New software is build around it for other functions but, when debugging must occur, problems can crop up between that older module and newer work if all the data structures haven't been well defined: old code may start to work on other parts of data passed to it due to the way it was sent to the module.  Even worse there may be dependencies in the module for information from other modules which weren't developed and that will hang up the entire development for that function to de-conflict these problems.  This eats up time.  It can invite the mythical man-month problem, and does, but also has feedback to the customer as the code structure may now need to be changed based on the newer specifications so as to avoid older software.  In theory you want to just rebuild modules from scratch, but as they have already been accepted you are stuck with them as a developer. Plus de novo work costs more, which wasn't budgeted for.

In a death march a project has a moving set of specification goal posts and the mythical man-month personnel problem plays into the problem as individuals begin to identify the project as one that actually can't reach its goals.  Yet because the customer wants results and money is available the project continues and begins a process of cycling through people within it, so that the people who started the death march project may be gone within a few months as the first set of changes come in and they see either a program manager unable to get the idea of hard set specifications or a customer unwilling to provide them.  Because money flows the project continues, and the personnel begin to flow as well so that the second group have not just the mythical man-month problem of not knowing the project fully, but also have already completed code that may not be well documented to deal with.  Without impeccable program documentation both outside and inside the computer code, new personnel face the daunting task of having to deal with changed functions and not fully understanding what has been done before them.  Of course the first set of changes brings problems and may break prior functions, thus requiring code rework... fine and dandy if it ended there, but a death march will see requirements and functions change yet again due to changes in management, possibly, or changes in customer specifications and requirements as they process through what the prior set of changes actually are.  The morale of a death march project is abysmal, and yet it happens often enough to have its own set of criteria adorning it and its own category of failure.

Obamacare came in with Congress setting some pretty broad but ill-conceived specifications for what would be a software project.  Plus there are hard legal deadlines set by Congress that met political realities but have no real parallel for a large scale software project.  In other words the federal customer shopped around a project with ill-defined goals and expectations and an unknown number of variables for which organizations and systems it would have to interact with.  Each State that didn't want to do an 'exchange' then changed the federal system as it must cover that State with all of its legal requirements, as well, which generate up new system requirements and interactions with previously designed code.  The number of States that refused was high, when it was expected to be only a couple of States, and that meant more had to be picked up by the federal system.  Yet that system now had to interact with insurance groups in different States each having their own data requirements.

The SCOTUS decision also gave States leeway on other parts of the law which also affected the 'exchanges' and because States took different routes on that, each of them that went away from the original template then brought with it changes to the system.

What Congress created was an ever changing set of functional variables within the system that would not allow the overall interaction to be a known quantity until a date perhaps as little as six months and no more than a year before the deliverable was required, by statute, to be in place.  In the modern age such laws that have so many parts to them become, effectively, IT projects.  They are designed by a committee.  They are carried out by an entirely different branch of government that must deal with its complexities, and yet the activation date is set to political realities not actual realities of software design and roll-out.  This latter problem is one that is well known: large scale systems fail more often than they succeed in all realms of business and government.

By not taking these realities into account the law is bad law, and is worse as a software design and integration project.  Any complex system requiring interactions between a set of knowns (federal agencies) has problems within the federal government.  The FBI tried twice in the 1990's to create a single sign on system for its agents to get access to all the databases the agency held.  It failed both times because the systems each had their own data standards, hardware and software, and some had human interaction requirements because they were never dreamt of being fully automated in the first place.  DoD attempted to revamp its pay system in the '90s, as well, and failed to replace multiple separate pay and leave systems with a single, unified one.  Another part of the DoD attempted a large scale system roll out for gathering map data and the RFC database became nearly as large as the project, itself.  And any ship the Navy has built for it will have a huge file behind it of changes done with a frequency that is mindboggling.  The federal government has problems within each of its departments and agencies, and working across them in an automated way is problematical due to the complexity of existing IT infrastructure.  When the States, private insurance companies and all the individuals in the US are added to this, along with federal and State laws that are at variance for each State, is it any wonder that this system is failing like we see it failing today?

Each of the three branches of the federal government has changed the specifications for the system: the legislative by the law itself, the executive in trying to prioritize functions, and the judicial by changing the interpretation of the law in a way unknown from all prior rulings.  Each of these entities can change the parameters, functions and deliverables of the system in an instant.  And yet the already accepted code is just that: accepted.  It is there be it functional, semi-functional or zombie waiting for some errant function to bring it back to life once more.  It is the far-reaching scope of the law that is a failure because no federal entity can deal with so much complexity.  The software is on a death march because of the inability of any of the three branches of the federal government to grasp that they are writing deliverable code requirements with variable function parameters.  Yet even if this was done by hand on paper it wouldn't work because of the rate of change to parameters of each part of the system: State, three branches of federal, insurance systems and advances in medical technology shifting the entire basis for treatments and medications.

That last is at peril with Obamacare as it puts a high price on new treatments and attempts to create a static system to deal with what already exists in the way of medicine.  Yet, with the entire genome now available for study, we are getting some of the first treatments to long-standing diseases which have the opportunity to alter what we see as medicine and health care.  You and I can adapt to that quite readily.  A large, hide-bound bureaucracy with hard coded imperatives and functions in its software will not.  Our freedom and liberty make it possible to change the entire idea of what health care actually is, and the idea of 'insurance' may get replaced by other systems of delivering health care that have little to do with doctors or pharmacies, and yet costs less and is more widely  distributed.  We are heading into an era of miniaturized labs on a chip that can do more complete work than an actual lab employing tens or hundreds of people per lab.  Similarly with stem cells that can come from each individual and be differentiated to organ based cells, these cells can be printed into a 3D matrix to be put into the body without fears of rejection factors.  Telemedicine and automated systems for analysis aren't just on the horizon with the former being here for nearly a decade and the latter now available interactively via web sites.  Incorporate these with labs on a chip and miniaturized sensors and you have something very close to Larry Niven's Autodoc: a machine capable of doing a complete bio-analysis of an individual to find systemic problems and even treat certain conditions, as well as do simple things like set bones, and call on specialized individuals or emergency personnel. 

Just take a look at the last century of medicine and compress the number of changes coming down to half or one-quarter of that time.  What sort of fit is a One Size Fits All Fits None Well system of paying for health care for what is coming?

Obamacare train wreck and you

Commentary I left at Hot Air on Harry Reid suddenly realizing that the Obamacare system he helped to connive into being isn't solvent, needs way more cash and won't do what it was purported as its actual points of being... but it is a sinkhole of cash that is vast and black in the budget.  Just like SSA and the M&Ms and other entitlements.  The question is: what to do about it.

The answer is simple and I've repeated it often in many ways, but here it is, again for this question:

Same answer to Obamacare as to the rest of the federal government:

Start in the House… fund by agency… don’t fund some agencies fully or use funding towards other programs and leave Obamacare high and dry.

There are a ton of programs you can kill by not funding them.

Just because a prior Congress wants it doesn’t mean a current Congress is obliged to fund it. There is no law against not funding these things, none at all. This requires a wholesale change of the R party in the House, particularly the sclerotic leadership. Obama can’t stop the House from not funding items, only keep on sending the bills back TO fund parts of agencies. If he wants to kill off some government agencies by killing their funding: LET HIM DO IT VIA THE VETO.

And then THANK HIM to rub salt in the wounds.

Would he really not want to sign off on a downsized IRS? And to put the IRS FIRST to set the tone. Then HHS. Then FDA.

You want this to happen? Then the House Republican ‘we have to fund everything other Congresses started’ contingent MUST GO. There is no law that says they MUST DO THAT. One Congress cannot bind another Congress via legislation and since the House holds the purse strings, it is there that fiscal rectitude must start. Not the Senate. Not the POTUS. Not the SCOTUS. You want to get a smaller government? Start at the US House of Representatives. Want to blame someone for the deficit? Also the US House. And the Debt as well. Surely for $3.2 trillion you can run a minimal government… if the debt service payments don’t EAT IT ALL UP, of course.

That is the Obama goal to collapsing the Nation: create a debt so vast that even current revenue can’t support minimal payments.

Your Nation goes under, your currency becomes worthless, your savings disappear and no amount of POWER from DC can make that better because it CAN’T BE FUNDED ANYMORE. If we are very lucky there are two elections left before that happens. If we are unlucky there is only one. If our luck has run out, you have seen our last election as a free people.

Change doesn’t start in DC: it starts with you, holding DC accountable and telling them to ‘stop the spending’. Yes they aren’t listening there or on the compliant and submissive Left… they want a tyrant, a dictator, a despot… their freedom isn’t in question. Yours is. Act like a free man who expects government to be beholden to the people, live like a free man who expects to be held accountable for his misdeeds, and praise virtue whenever and wherever it appears and support it. You carry through the actions and you just might be able to protect your liberty and join with those who think like you to ensure them.

There is a cost to this, of course.

Your money: gone.

Your savings: gone.

Your property: ravaged and destroyed.

You: free to start over or die trying.

Remember I’m the guy in poor health who won’t survive for long if the system goes south. Yet I’m preparing for those losses as best as I can. Because my freedom is priceless beyond any value, and I am more than prepared to be impoverished to remove this system of petty tyranny of rules above law and those who think they are above any law making the rules for themselves. You can start now by pestering your Congresscritters. It won’t change them, but it will change you.

ajacksonian on May 3, 2013 at 7:11 AM

This isn't about Obamacare.

This isn't about our dysfunctional government of Progressive Elites.

It is all about you and how you live your life.

Want a better government?  Make sure you are a prepared to be a better person, first.  And help society to recover from the insane beliefs fostered by Marx and the Left for over a century about government being the source of your liberty.  It isn't.

Government is instituted amongst men.

Government does not exist first and creates man... sorry that isn't how it works.

And the best government is self-government.

Once you got that figured out, you begin to resent all these other governments trying to tell you how to live your life.  Then your choices start to become obvious and your path, simple.

Sovereign Domains

In examining the decision in the Obamacare decision (and I will use the pdf page numbering, not that of the Court), it is important to keep in mind what I have gone through in two prior posts about Sovereign Powers and the domains of them.  I utilize the works of Fred Saberhagen's SWORDS Series to illuminate this, and it is worth going over the functions of Swords as each of them is a Sovereign Power and that defines their Domain of power:

THE SONG OF SWORDS

Who holds Coinspinner knows good odds

Whichever move he make

But the Sword of Chance, to please the gods

Slips from him like a snake.

The Sword of Justice balances the pans

Of right and wrong, and foul and fair.

Eye for an eye, Doomgiver scans

The fate of all folk everywhere.

Dragonslicer, Dragonslicer, how d'you slay?

Reaching for the heart in behind the scales.

Dragonslicer, Dragonslicer, where do you stay?

In the belly of the giant that my blade impales.

Farslayer howls across the world

For thy heart, for thy heart, who hast wronged me!

Vengeance is his who casts the blade

Yet he will in the end no triumph see.

Whose flesh the Sword of Mercy hurts has drawn no breath;

Whose soul it heals has wandered in the night,

Has paid the summing of all debts in death

Has turned to see returning light.

The Mindsword spun in the dawn's gray light

And men and demons knelt down before.

The Mindsword flashed in the midday bright

Gods joined the dance, and the march to war.

It spun in the twilight dim as well

And gods and men marched off to hell.

I shatter Swords and splinter spears;

None stands to Shieldbreaker.

My point's the fount of orphans' tears

My edge the widowmaker.

The Sword of Stealth is given to

One lonely and despised.

Sightblinder's gifts: his eyes are keen

His nature is disguised.

The Tyrant's Blade no blood hath spilled

But doth the spirit carve

Soulcutter hath no body killed

But many left to starve.

The Sword of Siege struck a hammer's blow

With a crash, and a smash, and a tumbled wall.

Stonecutter laid a castle low

With a groan, and a roar, and a tower's fall.

Long roads the Sword of Fury makes

Hard walls it builds around the soft

The fighter who Townsaver takes

Can bid farewell to home and croft.

Who holds Wayfinder finds good roads

Its master's step is brisk.

The Sword of Wisdom lightens loads

But adds unto their risk.

(end of the song)

Federalism is a means of dividing Sovereign Power into different Domains and then placing those Domains in whole or in part in different parts of government.  The US Constitution tells which branch of government gets which power, and that power is part of the Sovereign Power: it is that Power of a Nation expressed via its State through its government.    All Nations are equal in the Sovereign Power, there is no greater or lesser amongst them as they all express that Power because they are Nations.  Like individuals some Nations are larger than others, some have greater resources than others, and some are blessed by geography while others are accursed by same.  These things, like our own natural liberty in the realm of individuals, do not matter as all Sovereign Powers are equal amongst all Nations.  Indeed the Sovereign Power is bound up with the very individuals that create the Nation as a Nation only exists where there is the basis for it and that basis does not start on high, with the Nation, but on low with marriage.

When looking at the Obamacare decision it is necessary to also remember that the Domains of the Sovereign Power to each branch of government are discrete: they are defined and exist within a defined space and are separated from each other.  In this distribution within a federalist system there are 'checks and balances' that are not only amongst the three branches of federal government but also between the federal government, the State governments and the people who are the source of the power that is being used by these governments.

For Chief Justice Roberts there is a major decision that was made in the following way in the second page of the decision:

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11– 15.

There is a difference between paying a tax and paying a penalty: a tax is levied upon a transaction while a penalty can be levied upon an action alone not just a transaction.  Both are attached to doing activities, however, while the 'mandate' is levied against those doing nothing.

These topics cover two separate Domains of Power granted to Congress, which are the taxation power and the commerce regulation power.  Let us take a look at these powers in the Constitution in Article I:

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

[..]

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

[..]

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

[..]

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

[..]

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

[..]

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. [Amendment XVI see below]

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

AMENDMENT XVI

Passed by Congress July 2, 1909. Ratified February 3, 1913.

Note: Article I, section 9, of the Constitution was modified by amendment 16.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Congress gets Domains of taxation and regulation of commerce and they are discrete and differentiated in that taxation (and any other revenue bills) must start in the US House of Representatives.  Penalties can be non-monetary (such as prison sentences or hard labor) and those can start in either House of Congress, but anything that requires taking money from the people or the States must start in the US House of Representatives.  Thus the labels are important as those labels that the US Congress assigns for taxation indicate that such bills that garner revenue started in the US House of Representatives, not the Senate.  It may seem a minor quibble, but the Affordable Care Act started in the US Senate, which can neither levy taxes nor have penalties with monetary revenue generation for the federal government.  If the argument is that this is a tax, then the bill should be struck down due to its lack of legitimate originating body.  Within the US Congress the people have determined that it is only the House which can originate such bills (they can be started in the Senate but then must be redone as a House bill, passed in the House, then passed in the Senate as a House bill).

As the US Constitution is a limiting power system (as the power outlays in the main body and Amendments IX and X enforce) there is a limitation in the power of taxation:  "...provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

This is the Common Defense and General Welfare clause and it relates directly to taxes, duties, imposts and excises for generating revenue.  In referring to 'the United States' instead of 'the several States', the taxation power relates to the entirety of the Nation taken as a unit: it is not a power that allows it to be broken down to separate between individual States or amongst the people.  When Chief Justice Roberts refers to "The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate." he is trying to construe that health care insurance is something that is treated for the Nation as a whole and yet there are other ways to garner health care other than through insurance.  Health care is garnered  by and amongst individuals who live in States, and those States each have separate jurisdiction over those things not delegated to the federal government, and it can be done through any means an individual wishes which includes sole reliance on charitable institutions.

As the Common Defense and General Welfare are put together, they are considered a single object defining the taxation power.  The taxation Power Domain starts broad in Section 7, but is refined in Section 8 so that it cannot be used tyrannically.  Because both Common Defense and General Welfare of the United States relate to the Nation as a single whole, any taxation power is administered equally across all States as a single whole.  Taxes are levied upon activities and they are in a clause in Section 8 that deals with activities of trade: taxes, duties, imposts and excises.

Even further there is the forgotten part of the General Welfare clause that is added to Common Defense and General Welfare: "...to pay the Debts and provide for the common Defence and general Welfare of the United States;"  By using the word 'and' there is the direct connection of these three objects: Debts, Common Defense, General Welfare.  These are treated as a single object due to the 'and' between them: taxes, duties, imposts and excises are to be collected only for these things.  The Debt of the United States is its federal government's debt.  Similarly the running of the Common Defense for the Nation is done by the federal government.  The General Welfare of the Nation is done via external trade and assuring regularity of internal trade amongst the States which is a power granted to government.

Does healthcare fall into any of these categories?

1) It does not fall into the Debt.  It is incurred by individuals in the States, under the regulatory apparatus of the States.  Healthcare does not fall into this object category.

2) It does not fall into the Common Defense.  Healthcare is done as in internal and individual purchase for individual needs for medicine, medical examination, medical care and medical treatment.  If a pandemic requires federal intervention because it acts like an invading enemy, then the US military will deal with it.

3) It does not fall under the General Welfare.  The General Welfare deals with trade that is between Nations or between States and is attached to the regularity of imposts, duties, and excises, which are all specific taxes dealing with trade.  It is their specificity to trade, and the negative power structure of the overall Constitution that limits the federal government to these trade based forms of taxation for trade (otherwise they would just be taxes without restriction within this Domain of Power).  As healthcare is purchased locally and is not an item of inter-State trade (until such time as States wish to regularize this amongst themselves as the several States), then there is no entry point to tax it at the federal level.  If it was an item of inter-State trade it would be limited to duties, imposts and excises, not other forms of taxation.

In each category for the Domain of the Taxation Power granted Congress, health care is not seen as part of its Domain because it is not for the Nation taken as a whole or for the trade amongst States either.  In trying to set up regulatory law on health care, the Congress has created law where it has no Power Domain.  Because there is no Power Domain for Congress to exercise power, there can be no definition of a 'shared responsibility' as that responsibility is, indeed, not shared but falls to individuals and the States.

Yes this is a condemnation of Medicare, Medicaid and any other attempts for the federal government to have anything to do with healthcare.  That includes offering tax write-offs and subsidies via the tax code.  By having no Power Domain in this realm, Congress has not the power to act.  For the Affordable Care Act to be a tax it must have the proper starting point (the US House), the proper subject (the United States as a unitary whole), the proper object (Debt, Common Defense, General Welfare) as taxation is the activity.  This is due to the SVO sentence structure of the English Language and when reading the US Constitution the drafters were mindful of their language and the internal logic of the sentences so that they had proper Subject, Verb, Object agreement.  For the Affordable Care Act to have its implementation be the Verb of taxation it must have the proper Subject and Object to complement it.

It lacks those things as a tax.

In this I have disagreement with Chief Justice Roberts: he cannot parse out a sentence in the US Constitution.

As Chief Justice Roberts didn't reference the Commerce Clause in regarding taxation, it is worth noting that 'the several States' wouldn't cover the Affordable Care Act as there are no 'several States' seeking to implement a system of regularizing health care amongst them.  Even if there were States doing that and the federal government had any role to play, it would be limited via the explicit language in the General Welfare Clause to duties, imposts, and excises.  Thus all Clauses dealing with 'amongst the several States' do not apply to the Affordable Care Act.

Do note, however, that the regulatory part of the of the Commerce Clause would allow for penalties up front, such as trading in contraband goods.  Penalties in the Commerce Clause can go directly to non-monetary ones, while penalties in taxation are only for the non-payment of taxes: taxes are not penalties but a cost put on the activity of trade.  Taxes are the overhead of trade, in other words.  When Congress speaks of penalties, they can be applied immediately to illegal trade, while penalties for taxes are for non-payment of taxes.  This is a distinction with a difference as the penalties show up at different phases of the activity involved and have different types of consequences and severity within the limits of the separate Domains of Power.  Both Domains do cross on activity by type, yes, but they have different functions based on types of activities: it is very hard to tax illegal trade thus it requires a different set of penalties, while payment of taxes is done on legal trade and the non-payment of taxes (the inactivity of paying the tax overhead) has the stated purpose of generating revenue , first, and penalizing non-payment, second.  Thus one can garner penalties for illegal trade (or legal trade done illegally) and the other is for legal trade, done legally but not garnering the given tax overhead for that legal trade.  In the case of legal trade done illegally anyone doing that can face direct penalties for doing same and have tax non-payment liabilities also show up.  A single action can be a breach of two separate Domains of Power for different reasons.

A further restriction on the Tax Power is:  "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken."  If the Affordable Care Act is a capitation tax that is apportioned by any other means than by Census or income (Amend. XVI) then it is not given to be within the Tax Power Domain.  The Affordable Care Act offers up this 'tax' only to those who do not purchase health insurance: it is not done by Census or income.  Therefore if the basis for the Tax Power Domain is used, then it cannot be done via this Clause, either.

On page 5 of the decision... amazing how much analysis you can pack into a single paragraph on a single page, isn't it?  This section deals with Chief Justice Roberts and Justices Breyer and Kagan:

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203, 211. Pp. 45–51.

Notice how the Justices left paying for the Common Defense out of the Clause?  Yes they are trying to make a point but the Object of the Clause is compound and self-reinforcing giving it added definition, thus refining the scope of the power.  And what is the view for not upholding the Medicaid changes?  Fascinating to read this taking the entire ACA into consideration "The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs."

The entire ACA is attempting to force a large change in how each State operates.  If the States don't agree to it then, like in Medicaid, its legitimacy is questionable.  Mind you, this is reading the exact same programmatics which is the ACA into changes into Medicaid which is a federal to State system of money transfers with strings attached.  Just like ACA.  The ACA goes further in purporting power to the federal government to set up 'health care exchanges' in States that don't voluntarily agree to set up their own.  By the logic of the 3 Justices involved, that would be outside the bounds of the Constitution.

Do these Justices even bother to think about what they are writing and the context in which they are writing it?  Talk about compartmentalized thinking...

At that point, due to the similarity of structure and Power Domain that ACA has with Medicaid (voluntary agreement structure State-federal), then the obvious way to get a 7-2 decision to strike down the ACA is just not to agree to it at the State level.    That is because the ACA does foist off a lot of structure onto the States without trying to get the States to agree to it, per State.  That is the same structural problem with Medicaid that has just been ruled out of bounds for the federal government to do.  And the moment one State opts out of all of the ACA, then it is the federal government no longer treating the States or the people equally which then should bring down the entire structure completely.

Mind you, if the States started doing that with Medicaid, something similar might be in store for it, as well.  Really, with these three Justices on the five part of 5-4 striking down, and the other 4 wanting a complete striking down, the first case with ACA of a State just refusing it entirely should get you that 7-2 majority for the ACA, which would invalidate the entire structure due to equal application of the law and this not being something set up amongst the several States but put upon the States by the federal government.

So, by page 5 on the upholding side, there is the Chief Justice being unable to parse a sentence, and he is joined by Breyer and Kagan in being unable to see the similarly structural qualities of the ACA to Medicaid, and the result of what would happen if a State does not voluntarily accept the ACA... which is the point of the entire case brought by the States.  Hmmmmm... just how stupid are these people in black robes, anyways?

Hey, I haven't even gotten to the logical inconsistencies around page 38 of the pdf.  You don't have to go that far to find stuff that is most disturbing in this decision.

Since so many are looking at a more general preface on page 12 of the pdf, lets see what the general view of the Court is:

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883).Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

May it be said that it is not the job of the Court to save the politically chosen representatives from their own inability to actually craft a law and that it is also not the job of the Court to shift the Power Domain of an act of Congress from one venue to another as the origination of that power is not that of the Court but Congress.  Trying to change those Power Domains to make a law 'work' is not the job of the Court: it is the job of the Court to make sure that the laws crafted within a given designated Power Domain of Congress or the President are Constitutional.  It is not permissive reading that is going on, but changing of Power Domains that are not given nor granted to the Court to do.

Yes those labels do have meaning and designation of which Power Domain the crafted laws is made to fall under.  The Court is no more given nor capable of doing that than is the President: only Congress can do that.  If they didn't do it right, the idea isn't to change the Domain but to send it back to Congress and tell them to do it right.

The Court cannot protect the people from our choices and they cannot shield Congress from its own incapacities and must point them out so that the Nation can get Constitutional laws drafted by the Congress in the proper Houses of Congress, properly ratified that do not seek to impose power in Domains not granted to the federal government.  When labels are changed by the Court to save the Congress from its incapacities neither the people nor the Nation are served and the Court has failed to do its job as it is given to do.  This isn't about policy but simply doing the job one has volunteered to do in the way you have agreed to do it.

First thoughts

On the SCOTUS decision today I only have a few thoughts.   The decision is here, and I did a quick scan of it to see what the actual decision was... again this was a comment at Hot Air and for now that is it.  I'm seeing what others have to say, of course, and take my own council not that of fear.

With no other fanfare -

= = =

From p.32 of the decision:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

It MAY be within Congress’s power. MAY?

Oh, and you must take a positive action to purchase said goods he uses as examples. You do not pay a penalty for not purchasing gasoline, or for earning no income. Although if he is making THAT connection then welcome to the mandated penalty for gasoline purchase and to the penalty for not earning income. Won’t those be swell brand, spanking new taxes in the future?

And then this following:

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.

Roberts then repeats this pattern at each instance showing that there is a similarity between a power to tax purchases and the power to tax inactivity.

He looks at the Child Labor Collection Tax which is a tax on those using child labor. An activity. For licensing taxes that is a fee given to those asking for the license to do certain regulated business. It is an activity. Nuclear waste surcharges is for an activity of shipping nuclear waste.

He then goes on to those tax incentives used to encourage conduct, and yet there is a stark difference between conducting such conduct to get a tax break, and not doing something and getting penalized for it. In the former if you do not purchase a home you are not penalized for it, you just do not get the incentives… but I’m sure that under some future Congress not owning a home can be assessed as a tax, so all you renters out there can look forward to that in the future. He also cites taxes on cigarettes, but you pay no taxes on them if you do not purchase them, so I guess we can all start to pony up for cigarettes we don’t buy as future Congress can do that, as well. Won’t that be swell?

By p. 40 we come to this lovely passage looking at the arguments against the tax:

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.
There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

And now you want to know WHY Congress can do this? This follows the above:

Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain,except death and taxes”).

Is this a direct power GRANTED to the United States government by its people? If not it is in Amendments IX and X. Nice job on forgetting that little bit of the Constitution while doing contortions on tax powers to let Congress tax an inactivity that the Chief Justice cannot find a precedent for. Not one thing he cites is a tax power over inactivity and there is no cost for inactivity in any other tax by the federal government.

Don’t let that stop you from inventing one.

ajacksonian on June 28, 2012 at 12:03 PM

= = =

So limiting the Commerce Clause and the  Necessary and Proper Clause.

What was put in its place is the wide-open field of giving Congress the ability to tax ANYTHING YOU DO including doing NOTHING.

Don't earn any income?  They can tax you for that.

Don't have a Volt? They can tax you for that.

No home? They can tax you for that.

Say! No firearms?  They can tax you for that.

This is the power of tyrannical, compulsory taxation and this decision just gave the green light for that.

What you don't know, and neither does your Congresscritter

Yes the vim, vigor and vituperation surrounding the Health Care Bill has been astounding!  Well, mostly on the against side of things, on the for side it has been the usual platitudes of 'how much this needs to be done' and 'how good it is' and 'you will find out what is in it after it is passed'.  Unfortunately that latter is paraphrased from the Speaker of the House of Representatives, and if that had been spoken by, say, some Fifth Earl West San Francisco it would sound like an aristocrat explaining that the workings of government are just too complex for the 'little people' to understand.

Companies are pretty fast off the mark in 'understanding' things as their bottom line is something they care about, so they adjust the fastest to try and absorb the hits from changes in the tax code so as to properly structure their companies as to make a profit.  Any profit.  Thus the following are now taking charges to their bottom line this year to try and stay ahead of the curve:

1) Caterpillar Inc. - $100 million (Source: WSJ 25 MAR 2010)

2) Deere (of John Deere) - $150 million (Source: CNBC 25 MAR 2010)

3) AT&T - $1 billion (Source: Yahoo News 26 MAR 2010 article by Barbara Ortutay)

4) AK Steel (mentioned in the Yahoo News article above)

5) Valero Energy (ibid.)

6) 3M Co. - $85 - $90 million (ibid.)

That Yahoo News article is just full of fun stuff like this passage:

Under the 2003 Medicare prescription drug program, companies that provide prescription drug benefits for retirees have been able to receive subsidies covering 28 percent of eligible costs. But they could deduct the entire amount they spent on these drug benefits — including the subsidies — from their taxable income.

The new law allows companies to only deduct the 72 percent they spent.

AT&T also said Friday that it is looking into changing the health care benefits it offers because of the new law. Analysts say retirees could lose the prescription drug coverage provided by their former employers as a result of the overhaul.

Changes to benefits are unlikely to take effect immediately. Rather, the issue would most likely come up as part of contract negotiations between the company and unions representing its employees and retirees. AT&T is the largest private employer of union workers in the U.S.

Hey!  I thought the 2003 Medicare Bill was too big for a Nation at war, that we couldn't afford it, and that the shift to private plans, being something the government could allow also means the government could fool with it in the future.

Which it has done.

And if you like your health care plan and are getting it from an employer?  Its either changing, benefits are being reduced or just going away... so forget about keeping it.  That promise was a lie as anyone who looks at the system could tell you when you start doing wholesale changes to mandates and such.

Now a bit more for the above on folks losing benefits due to this bill from AP via Google 26 MAR 2010 in an article by John Funk:

The health care law signed by President Barack Obama on Tuesday prohibits companies from writing off the subsidies starting in 2011, meaning they will no longer be able to deduct them from their taxable income.

For example, if a company spent $100 on benefits, including a $28 government subsidy, it could write off the full $100 on its taxes under the old rules. The new rules would allow the same company to write off only $72.

The follow-up health care bill to reshape parts of the overhaul would delay the changes until 2013.

As many as 1.5 million to 2 million retirees could lose the drug benefits provided by their former employer because of the tax changes, according to a study by the Moran Company, a health care consulting firm.

James Klein, president of the American Benefits Council, said between 6 million and 7 million retirees currently get the benefits. But the number of companies offering them has been dwindling for years.

Generally, retirees would prefer to stay with prescription drug coverage provided by their companies as opposed to enrolling in a Medicare Part D plan, said Marilyn Moon, a health care economist with the nonpartisan American Institutes for Research.

She said most of the company-sponsored plans are more generous and almost none have the coverage gap that comes with Part D plans.

Private plans more generous than what the government can do?  And they keep the retired better cared for without having to spend US taxpayers money?  And the benefits are more generous than what the US government can do under Medicare?

Say, why is Medicare such a great system for retirees if it is stingy, can't fully reimburse medications, costly and, oh, going broke with the approaching retirement of the 'Baby Boom' generation? Because it is what people will be falling back to, once the bite of this stuff fully takes place.  Notice that most of that starts to disappear just before an election year and then fully in place after it?

But the kicker is what those companies that DON'T change their benefits will do, and its a real kicker:

Consumers Energy, a Michigan gas and electric company with 2.9 million customers, said it will not take a big first-quarter charge because, like most utility companies, it can try to recover the added costs from its customers through rate hikes.

It has got to suck to be in MI with such bad tax codes and businesses fleeing Detroit that the city wants to turn some of the abandoned lots back into farmland (Source: AP via Washington Times 09 MAR 2010) .  Costs too much to turn the Motor City into the Farm City, however, so get used to vacant lots and abandoned buildings in Detroit for the foreseeable future.  Just watch RoboCop and you will get the idea, there.  So if you live in Detroit you will pay for the unsubsidized health benefits of Consumers Energy via rate hikes in gas and electric bills.  And through increased federal taxes, too.

Ed Morrisey at Hot Air (25 MAR 2010) hosted a video clip of Bill O'Reilly trying to get a straight answer on who collects the penalties if you don't enroll in Obamacare and he also put up the bill so you could search it yourself.  He came up with the IRS on p. 345 of the bill under its Section 5000A powers given to it by Congress in 1986.  Dutifully I looked that up:

From Title 26 (26 USC 5000) which is under Subtitle D – Miscellaneous Excise Taxes – Chapter 47 Certain group health plans, which has this as its taxing provision:

Sec. 5000. Certain group health plans

(a) Imposition of tax

There is hereby imposed on any employer (including a self-employed person) or employee organization that contributes to a nonconforming group health plan a tax equal to 25 percent of the employer’s or employee organization’s expenses incurred during the calendar year for each group health plan to which the employer or employee organization contributes.

There you go, Section 5000A of Title 26!  So if you get income that isn't employment income, say you get unemployment benefits or are rich and live on the earnings of off-shore accounts, you don't have to comply.  You have just gotta love how the very poor and very rich are BOTH able to get away from this junk, but the middle class gets screwed.  But don't worry, we Daniel Foster on 26 MAR 2010 at NRO (h/t: Morgen Richmond at BigGovernment)has found out that whatever the bill may say in one place, it might just contradict in another as found in the Joint Committee on Taxation on 21 MAR 2010 on p. 33 :

The penalty applies to any period the individual does not maintain minimum essential coverage and is determined monthly. The penalty is assessed through the Code and accounted for as an additional amount of Federal tax owed. However, it is not subject to the enforcement provisions of subtitle F of the Code.68 The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty. Non-compliance with the personal responsibility requirement to have health coverage is not subject to criminal or civil penalties under the Code and interest does not accrue for failure to pay such assessments in a timely manner.

Yes, that's right, there is no penalty for not getting a health care plan that can be assessed against you.  Basically its 'pretty please sign up or if you want to pay a fine you can but if you don't that is a-ok, too'.  Thus we will get 16,500 brandy-new IRS agents to... send you imploring letters to please, please, pretty please get health care and, if you could, send some cash to the IRS for your trouble, would ya?

Oh, joy!

Oh, rapture!

Then at the CampaignSpot at NRO on 24 MAR 2010 Jim Geraghty found the tampon tax:

b) TAXABLE MEDICAL DEVICE.—For purposes of this section— (1) IN GENERAL.—The term "taxable medical device" means any device (as defined in section 201(h) of the Federal Food, Drug, and Cosmetic Act) intended for humans. (2) EXEMPTIONS.—Such term shall not include— (A) eyeglasses, (B) contact lenses, (C) hearing aids, and (D) any other medical device determined by the Secretary to be of a type which is generally purchased by the general public at retail for individual use.

Yes and in that latter category is: tampons.  That sort of thing was brought up months ago... last year around this time if memory serves, but Harry Reid decided to keep such language in the bill.  Say, you can get a pacemaker, but if you need special lenses to see your way around the house, you gotta shell out for those through the nose. PLUS 2.3%  Good job!

From AP via Hot Air on 24 MAR 2010:

Hours after President Barack Obama signed historic health care legislation, a potential problem emerged. Administration officials are now scrambling to fix a gap in highly touted benefits for children.

Obama made better coverage for children a centerpiece of his health care remake, but it turns out the letter of the law provided a less-than-complete guarantee that kids with health problems would not be shut out of coverage.

Under the new law, insurance companies still would be able to refuse new coverage to children because of a pre-existing medical problem, said Karen Lightfoot, spokeswoman for the House Energy and Commerce Committee, one of the main congressional panels that wrote the bill Obama signed into law Tuesday.

Yes the 'For The Children' folks who pushed this from Congress were lying.  Young adults are under that too, so sorry.

It was such an important thing to do, they forgot to do it.

I am sure, very, very sure, that the Harry Reid Bill to bring us Obamacare will be chock-a-block with goodies like this because this landmark legislation was so important, so damned necessary, and had to do so very much that no one in Congress could bother to read it.

Just like the 'stimulus' which hasn't stimulated a damn thing save the pocketbooks of Congressional cronies.

I really do think that such behemoth bills should be read out on both floors of the Chambers of Congress.

So that it goes completely on record as having been read out so there are no excuses, no blathering, NOTHING that can be used to defend the passage of such bills.

It is one thing to have a bleeding heart.

It is quite another to slit one's wrists to prove just how much you care.

Examining health care in light of the powers of government

This is a personal opinion paper of The Jacksonian Party.

At Hot Air I ran across the question of the constitutionality of health care mandates as a possible power grant to Congress, and found a set of arguments both for and against that did not, to me, seem to scope out the exact power structure of the federal government.  As is my wont I left commentary, and I will now pass that on to you 'as-is' untarnished by a spell checker, without syntax check and otherwise for the amusement of the reader.

= = =

I think the better Madison quote comes from Federalist No. 41, in which he responds to the problems brought up by a number of Anti-Federalists:

Some who have not denied the necessity of the power of taxation have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the Articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare and allowed by the United States in Congress shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

The point brought up is that there are those who will ignore the semi-colon or otherwise misconstrue the actual verbiage in light of expedient legislation. The argument is not one of the logic involved, which those same Anti-Federalists actually point out, but one of human nature and the nature of governments over time moving away from restricted rights for government unless there are some very and extremely harsh checks on that power put in place. Hamilton's goal of a 'robust role' for government in commerce would be addressed by the veto of the US National Bank Veto of 1832, which addresses the very concerns about stare decisis, powers and limitations on government:

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

But in the case relied upon the Supreme Court have not decided that all the features of this corporation are compatible with the Constitution. It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress; but taking into view the whole opinion of the court and the reasoning by which they have come to that conclusion, I understand them to have decided that inasmuch as a bank is an appropriate means for carrying into effect the enumerated powers of the General Government, therefore the law incorporating it is in accordance with that provision of the Constitution which declares that Congress shall have power " to make all laws which shall be necessary and proper for carrying those powers into execution. " Having satisfied themselves that the word "necessary" in the Constitution means needful," "requisite," "essential," "conducive to," and that "a bank" is a convenient, a useful, and essential instrument in the prosecution of the Government's "fiscal operations," they conclude that to "use one must be within the discretion of Congress " and that " the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution;" "but, " say they, "where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground."

The principle here affirmed is that the "degree of its necessity," involving all the details of a banking institution, is a question exclusively for legislative consideration. A bank is constitutional, but it is the province of the Legislature to determine whether this or that particular power, privilege, or exemption is "necessary and proper" to enable the bank to discharge its duties to the Government, and from their decision there is no appeal to the courts of justice. Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the particular features of this act are necessary and proper in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional, or unnecessary and improper, and therefore unconstitutional.

Without commenting on the general principle affirmed by the Supreme Court, let us examine the details of this act in accordance with the rule of legislative action which they have laid down. It will be found that many of the powers and privileges conferred on it can not be supposed necessary for the purpose for which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the Constitution.

Here, some 43 years on from Federalist 41, we have the outlay of powers and how they work between the States and the federal government and within the federal government itself.

First off is that precedent, both SCOTUS and legislative, is a dangerous source of authority especially when examining the constitutional powers granted to the federal government. You do not ignore previous decisions, but they must not trump reasoning on constitutionality.

Second each arm of the federal government has separate and independent powers, not co-equal powers. This is forgotten and misconstrued in the modern day, but these separate powers were designed as independent checks and balances on federal government so that each branch has its review of constitutionality independent of the other branches. Congress is to create laws that are constitutional, the President has the veto power to reject laws that are unsound, improper, unnecessary or unconstituional. The SCOTUS is given grant to judge on the constitutional basis of laws and strike down those not adhering to the constitution. These are in no way equal powers, but separate and independent powers. So just as it may be within the scope of power of Congress to do something, it must be judged first by the President as necessary and proper exercise of powers, and judged by the SCOTUS on those grounds examining their independent powers in that judgment.

Third and not to be forgotten, is that there needs to be a general assent to legislation from the States and the people, and acknowledging that such legislation is desired from those levels and can be executed via necessary and proper laws that adhere to the constitution. Thus with health care and the powers granted to government we hear rejoinders on:

- Precedent - A dangerous source of authority regarding constitutionality as prior judgments may not have taken the full scope and power of the constitution into consideration as it regards other areas of legislation and law. When judging the constitutionality of a law, the restricted scope of prior decisions may not represent a true reading of those power grants for a particular statute. In health care and similar areas there are few arguments utilizing Amendments IX and X, and if the court has been remiss in the past in considering those, than those grounds can serve as a basis for new suits on legislation to call into question the necessary and proper part of powers granted to the government when enacting laws.

- Necessary and Proper - Even granted that the federal government may have a role in health care, can Congress create a necessary and proper law that adheres to its constitutional restrictions as to being wise and fiscally sound, and having the general support of the States and the people? These are not minor considerations and no election changes the fact that the people and States have been indifferent to passing this question on to the federal level. Thus, without that clamor and, indeed, the overwhelming majority not having expressed a want of federal intervention, there is little that Congress can stand on. Even appealing to precedent in this case must take into consideration all of the Congresses that have brought up this question, all the States that have considered it, and the general view of the electorate separately. Precedent does not lay basis for good law without these legs to stand on via precedent: the SCOTUS is not alone in having a history, and all relevant history must be examined as part of new legislation.

- Powers and Privileges - Those organs that Congress creates are made via the powers it has in the constitution. If the powers granted are not necessary to the purpose involved, then Congress cannot create such an organ of the government as it does not have the power to do so. If created without power to do a purpose, then it is not a constitutional object of government nor a means to achieve the ends of Congress. This is a question that must be established in light of mixed precedent, necessity, propriety and the actual extent of the power grant to the federal government. Just because legislation is expedient and towards good ends, that does not give it necessary and proper standing within the constitution, nor power to Congress to enact it.

An unlimited interpretation of 'general welfare' wipes all question of limited power away and reduces the Nation to a state of tyrannical government. If the form and function of these powers were so sweeping, the constitution would say so, and yet it defines the exact opposite, particularly when examined in Amends. I, II, V, IX and X. The specific things the federal government cannot do are joined by a general rule that what is not given to the federal is retained by the States and the people. Do note that the understanding of power functions is outlined in Law of Nations, specifically mentioned in the constitution and understood by the founders so that when power grants are seen in the document, it is easy to examine the similar sections of Law of Nations and see what the scope and meaning of the powers are (as witness George Washington's Neutrality Proclamation) and then examine how those scopes of powers continue as grants from the people to the federal government. From that additional questions in regards to security functions and their organs (CIA, NGA, NSA, etc.) are to be examined in the Commander of the Armies and the Navies power as they are, at heart, military functions for National Security (there may be too many of them, yes, but that is a different argument). Likewise to uphold the laws of the US, Congress has created the FBI for general laws and other organs for things like Immigration and Naturalization. Something like USGS and NOAA come under the part of mapping and charting necessary for military purposes and for understanding the scope and breadth of the Nation. Something like the Dept. of Agriculture, Education, Energy and so on are less viable on these grounds and less accountable as they have fewer functions directly tied to constitutional grants and could, and probably should, receive review on the necessary and proper functions, as well as if these are sound bodies to have or even wanted by the States and the people.

Healthcare under federal regulation? Is it necessary and proper? Is there an established hue and cry over many years for it from the States AND the people? Can it be done within the power grants? Can it be made fiscally sound? Have established precedents considered all aspects of such a power and the restrictions placed on them by the constitution and amendments? To date I have no good answers that lead to 'yes' on these.

YMMV.

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So ends my commentary at Hot Air on the topic.

Yes, my commentary does tend to run long, as do my pieces, as finding the collection of simple outlooks that underlie a complex problem is not easy nor amenable to simplistic scrutiny.  Finding and defining the parts tell us much about what the whole of something should look like and how it should work, and without finding those necessary and simple parts that make a complex problem, one cannot begin to address the problem, itself.  This is not a simplistic 'root causes', as given by many in an attempt to thwart any real progress on problems, but to thematically find and identify those parts of a problem that are salient to it and discarding emotional baggage attached to them.  Those seeking 'root causes' in the emotional baggage never come to address the actual, and underlying driving forces of a problem and find themselves always resorting to an emotional appeal from the lovely baggage they are rooting through.  I like to know why the baggage fell off the train in the first place, and will only look to the baggage as a cause if there is evidence that the baggage is the cause.