I just recently had an email exchange with Ilya Shapiro at the Cato Institute. This was in response to an editorial of his in some online publication(you can probably look it up for yourself).
This is the substance of those emails.
You don't know what you are talking about.
Ever since EMTALA was passed, the US has had universal healthcare. Anyone in American, citizen to illegal alien, can get healthcare.
http://en.wikipedia.org/wiki/Emergency_ ... _Labor_Act
The Federal government mandates that all hospitals provide care to anyone who comes in.
Even when they have not paid into the system, or can pay the hospital.
Without a mandate for payment for those services.
Hospitals pass that cost on to the taxpayers, insurance companies, and the uninsured who do pay.
That is to say, that the whole cost is passed on to the rest of us.
It is inevitable that everyone will access the healthcare system, at least at some point in their lives(or deaths).
Insurance is a risk distribution system.
Because healthcare will be utilized by ALL Americans(and non Americans), it is is cost distribution system.
And the existing distribution system of costs is really really stupid.
If the Federal government can mandate Hospitals to provide healthcare to non paying customers, then the Federal government can mandate those who can pay for healthcare, to pay for it.
Thank you for you time
Thanks for writing. You present a policy argument, which may or may not be the correct way to look at the economics of the matter (probably not because health insurance is different than health care) but in any event is a separate question from what the Constitution allows. “Good” or utilitarian policies (in health care or otherwise) may be unconstitutional – to use an absurd example, if the government kills all sick and old people, spending on health care will decrease – and not all constitutional policies are desirable. Here, neither the Commerce Clause, the taxing power, or anything else, allows the federal government to force you to buy something.
Note, by the way, that state car insurance mandates are different for two reasons: 1) states have general police powers while the federal government is limited to those powers listed in the Constitution; and 2) driving is a choice (the law on this is indisputable) so there's a difference between having to buy insurance of you choose to drive (on public roads) and having to do so by don't of being alive.
By the way, for a sketch of a better way of reforming health care, see for example For a sketch of a better solution, see for example http://www.cato.org/pub_display.php?pub_id=10646
Hope that helps. Best wishes.
Senior Fellow in Constitutional Studies,
Editor-in-Chief of the Cato Supreme Court Review
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Washington, DC 20001
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>>Shapiro's Additional Response...
I meant to add the following:
The requirement that hospitals care for anyone who present themselves (EMTALA) is different from the requirement that people buy health insurance. Hospitals can choose to go out of business (put enough onerous regulations on them and they will). Individuals can’t opt out of government-imposed mandates (other than by committing suicide, I suppose).
My Response to Mr. Shapiro's email(to which I received no response)...
First off, thank you for responding to my email.
"Thanks for writing. You present a policy argument, which may or may not be the correct way to look at the economics of the matter (probably not because health insurance is different than health care) but in any event is a separate question from what the Constitution allows."
I would say that even though healthcare is not enumerated in any of the sections or amendments, for healthcare as we know it did not exist at the writing. It is mentioned in the Preamble.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare
, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Considering the intentions of the Framers, I would find it unlikely that they would support our present day modern military(common defence), and not include modern healthcare(general Welfare); if the Constitution were written today.
For example, Article 1, Section 8, Clause 8 sets up protecting the rights of poets, artists, and inventors. Not to protect those actual poets, artists, and inventors per se, but "To promote the Progress of Science and useful Art" for the rest of us. If the Framers had this kind of intention, a micro management of social engineering, then certainly they would have, if it existed, set for a whole Section just for healthcare. Of course this is hypothetical, but looking at the intentions of the Framers, it really is undeniable that they 'would have'.
"“Good” or utilitarian policies (in health care or otherwise) may be unconstitutional – to use an absurd example, if the government kills all sick and old people, spending on health care will decrease – and not all constitutional policies are desirable. Here, neither the Commerce Clause, the taxing power, or anything else, allows the federal government to force you to buy something."
That is true that it does not force(or coerce) one to BUY something, but it does force and coerce people to pay for something. When one thinks of insurance, one thinks of a product. An insurance policy is a product. But healthcare is not. Most insurance is based on the actuaries that you will not ever use it. Car insurance, fire insurance, home insurance, etc. But healthcare today is completely different, everyone alive has accessed it(by being born) and will inevitably use it during their lifetimes; or at the time of dying.
Now there are exceptions to this, for example if your mother decided to have your birth at home, with a friend midwife who took a cake or chicken as payment for her services. And there is the very odd exception of dying at home or outside of a hospital setting, never accessing the healthcare system during your life. But these exceptions are so exceedingly rare as to not even mention(other that to mention that there may be exceptions).
Every American will access the healthcare system. Many of my poor friends access it by way of the ED doors at local hospitals.
"Note, by the way, that state car insurance mandates are different for two reasons: 1) states have general police powers while the federal government is limited to those powers listed in the Constitution; and 2) driving is a choice (the law on this is indisputable) so there's a difference between having to buy insurance of you choose to drive (on public roads) and having to do so by don't of being alive."
Correct. But car insurance and healthcare are two different things. Only linked by analogy because healthcare was once only paid for when one bought insurance for it, or paid straight out of pocket. But a large percentage of healthcare today is not paid for(by the consumer), and large percentage of healthcare is paid for by taxes. It is only through a historical defect in logic of economics that businesses were encumbered with the onus of paying for it for their employees. It is a service not like car insurance, but like the public roads that you mention. Built either by mandate on contractors, the roads around your home for example, or the roads that connect cities and states that are built by public entities. And there are plenty of people who do not access the public road system directly, who pay for that service; justified because even if they themselves do not have a car they, benefit from it socially and economically. And they are forced to pay for it.
Many people confuse healthcare and health insurance. Some people confuse the two intentionally, to enact policy for example. They are two separate things. You, as an American are entitled to, and will receive healthcare(thanks to Ronald Reagan, and EMTALA), without ever having to pay for it. You don't even have to be an American, you can be an illegal alien, here in America for a week. If you come into a hospital, you will be treated, for whatever you have wrong with you; with no exceptions. And you will receive the treatment as if you had been paying into the system all your life, even the same treatment as a doctor who works at that same hospital. Someone has to pay for this. Americans demand this level of service, they have to pay for this level of service. They don't presently.
As Libertarians, it is against our nature for things received not being paid for. We view that as theft. So it is really a Libertarian argument, that if Americans are going demand the level of service that they do, to benefit from a service/entitlement which is healthcare that they do, that they should also be responsible and pay for it.
"I meant to add the following:
The requirement that hospitals care for anyone who present themselves (EMTALA) is different from the requirement that people buy health insurance. Hospitals can choose to go out of business (put enough onerous regulations on them and they will). Individuals can’t opt out of government-imposed mandates (other than by committing suicide, I suppose)."
Correct as well. One of the objections to EMTALA before it passed was that hospitals would just close their ERs. And it was a real objection. Or that hospitals would go out of business, and many did. We did put onerous regulations on them, and look what happened. If memory serves me correct, 1600 ERs nationwide closed. It was the spawning of the Med 7, Acute Care type businesses of the 80s and early 90s. Some still do exist. But the real hospitals kept their ERs open, and just dealt with the aftermath. They increased the costs of ER visits and services to account for unpaid consumers. And they passed the costs on to the other departments as well. You don't actually believe that ER healthcare cost all that much more than other healthcare today do you. Everyone who works in ER makes the same as everyone else in a hospital. The doctor makes the same as a, or just a little more, than a GP. ER costs more because it is open all day, of course. But per hour costs are really not that more than say, a clinic. It costs more because many of their consumers don't pay, and the costs were inflated to cover those who don't pay. Thus increasing all costs to paying consumers, insurance companies, businesses, and to government agencies which do pay for healthcare. It is cost distribution, like I said in my first email to you. Normal insurance(like car insurance) is risk distribution, current healthcare insurance and payment methods are merely cost distribution.
There are still a few hospitals which exist, which don't have ERs nationwide. But they are the extreme exception. Even Kaiser hospitals accept MediCare and MediCal patients, they don't like anyone to know that, but they do. And uninsured patients are definitely treated at them.
Those same individuals that you say can't opt out, will still access the healthcare system in their lifetimes. If they attempt suicide, more than likely they will come into a hospital somewhere and receive treatment and healthcare. And even if they are found dead, they will still activate the EMS(which still costs a lot of money). They can't opt out of the healthcare system if they choose to, and most choose not to. Those costs are still all passed on to you, distributed to you(and me). Those Americans who never access the healthcare system are such statistical fliers, that if you find them it would be remarkable. Healthcare is not like car insurance.
Again, Thank you for your reply.
It is an interesting discussion.
Perhaps I should have been more polite.