The Freedom Bulletin

It seems like things might, just maybe, be going in the right direction based on the Supreme Court justices’ questions during today’s hearing on the Affordable Care Act. Although predicting court decisions is always iffy, news sources described a majority of the justices as skeptical as they fired questions at Solicitor General Donald Verrilli. Justices Breyer, Sotomayor, Kagan, and Ginsburg are almost certainly in favor of the law, Justices Alito, Scalia, and Thomas are almost certainly against it, and it is Roberts and especially Kennedy who everyone is guessing about.

Here are some of the best points, in my opinion, that were made today:

“Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market. Therefore, you can make people buy broccoli.” ~ Justice Antonin Scalia

“Why do you define the market that broadly? It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant.” ~ Justice Scalia

“[The individual mandate] is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.” ~ Justice Anthony Kennedy

“You don’t know if you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need. But when you do and the government provides it.” ~ Chief Justice John Roberts, comparing the individual mandate to requiring everyone to purchase cell phones so they can call 911 more efficiently

“You can’t say that everybody is going to participate in substance abuse services.” ~ Justice Roberts

“The failure to buy health insurance doesn’t affect anyone. Defaulting on your payments to your health-care provider does. Congress chose for whatever reason not to regulate the harmful activity of defaulting on your health care provider.” ~ Michael Carvin, attorney for the National Federation of Independent Business and other private plaintiffs against the individual mandate

“If being born is entering the market…that literally means they can regulate every human activity from cradle to grave.” ~ Attorney Carvin

“It’s not really a health-care provision so much as a corporate giveaway. 300 million guaranteed customers for the insurance industry.” ~ Oliver Hall, a supporter of single-payer health care who protested against the individual mandate

Sources:

• Associated Press
• CBS News
• LA Times
• NY Times
• Wall Street Journal (live blog here)

Visit the Supreme Court’s website if you want to read a transcript of all of today’s arguments (PDF).

Did you know that the federal government can ban you from growing too much wheat on your farm? In the 1942 case of Wickard v. Filburn, the Supreme Court affirmed (unanimously, no less!) a federal law doing just that. Farmer Roscoe Filburn was fined for every bushel of wheat he grew that exceeded a government-set limit. According to the New York Times, this case will play a large role in the Court’s upcoming deliberations over the constitutionality of the Affordable Care Act (“ObamaCare”).

“To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.

Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.”

In other words, there’s a difference between banning people from making something themselves in the hope that they will have to purchase it from someone else, and actually requiring people to purchase something (namely, health insurance).

In my opinion, this isn’t a very big difference; philosophically and morally, both the Wickard decision and the Affordable Care Act’s  individual mandate are wrong. But out of these two violations of individual rights, the individual mandate is somewhat worse. Punishing people for growing something on their own land is bad enough, but the ACA would punish people for inactivity and would compel them to participate in an economic transaction that they do not necessarily wish to participate in. Additionally, while the wheat law allows people the option of going without wheat (admittedly not a very good or practical option), the ACA does not even allow people the option of declining to participate in the health care market.

Lawyer Michael A. Carvin, in a brief for the National Federation of Independent Business, made an excellent analogy:

“The uninsured regulated by the mandate are the teetotalers, not the bootleggers, of the health insurance market.”

ACA supporters almost always equate not having health insurance with receiving medical services for free and therefore becoming a free rider. Although this is true of some people, it is not true of all. Some people choose not to receive medical services at all. And some people choose to pay with their own money for each health service they receive, instead of paying for insurance. It would be just as wrong to force these people to purchase health insurance as it would be to force teetotalers to purchase alcohol.

It will be interesting to see if the Court agrees with this analogy.

If one thing is for sure, it’s that medical costs have gone up recently. A new study showed that health insurance prices rose, on average, 9% in the past year. The Affordable Care Act may very well share the blame for this, and so might the fact that doctors perform too many medical procedures (surprisingly, doctors themselves admit to this).

But logic indicates that the main cause of how much something costs is…well…the price the seller chooses to charge. You wouldn’t think the New York Times would have to do an article on this obvious fact, but they did.

The reason why doctors and hospitals charge so much for their services is simple: because they can do so without losing customers. If you have cancer, for example, you might need chemotherapy to live, and if you have a broken bone, you need to get a cast. People don’t have the option of going without these things if they decide they cost too much money. In economic terms, the demand for health services is inelastic. Governmental policies have exacerbated this problem – for example, the Durham-Humphrey Amendment by requiring people to visit a doctor and get a prescription before being allowed to buy medication, and the individual mandate by actually requiring people by law to buy health insurance.

The only solution to this problem, in my opinion, is price ceilings. This idea has been floated around a little bit, including in California where a bill called AB 52 would limit health insurance price increases, by Massachusetts Governor Deval Patrick, who created a similar policy, and more recently, State Rep. Ron Mariano, who more sensibly focused on the prices of health services themselves, proposing a bill that would limit prices paid to the costliest hospitals. This bill is definitely a step in the right direction.

As such an ardent advocate of liberty, it might appear strange to support government telling businesses how much money they can charge. Shouldn’t people be able to engage in any transactions they choose? But I look at excessive prices as akin not to consensual transactions but to extortion. People have a right to their own money, and doctors do not have a right to suck a person dry of all their money for performing a medical procedure that the person needs to live. Doctors, just like any other merchant, deserve compensation for the services they sell, but because their customers are not truly choosing to purchase those services, doctors should not be allowed to take so much money that people have no more money left to spend on anything else. It would be impossible for everyone to agree on a particular price at which a transaction becomes extortion. But people should certainly be discussing this question and working toward instituting a price ceiling on medical services, instead of continuing to let doctors and hospitals extort people.

There’s nothing wrong with the government setting maximum prices that sellers are allowed to charge for goods and services that have inelastic demand. The Boston Herald called Mariano’s idea “a move toward government price controls, plain and simple.” But I believe there is nothing wrong with that.

Massachusetts might have a lot of questions on the 2012 ballot. On Wednesday, 23 ballot initiatives passed Attorney General Martha Coakley’s review and now will need to get 68,911 signatures by this November and (unless the legislature takes action) 11,485 more by next July.

They include:

• Giving people 3 days to cancel car purchases
• Expanding the do-not-call law to include charitable organizations that use telemarketers
• Amending the state constitution to require legislators to ensure that all people have “comprehensive, affordable, equitably financed” health insurance (this won’t appear until the 2014 ballot because constitutional amendments require the approval of 25% of the state legislature two sessions in a row)
• Limiting annual increases in water and sewer rates to 2.5%
• Legalizing medical marijuana (website)
• Legalizing assisted suicide for people with terminal illnesses (website)
• Creating a Citizens’ 9/11 Investigation Commission
• Requiring car manufacturers to share information with repair shops that they need to repair vehicles (website)
• Banning car insurance companies from setting prices based on credit score, education, or occupation
• Banning certain types of fishing equipment that could endanger whales
• Establishing consequences for teacher evaluations (website)
• Expanding the bottle deposit law to include water, juice, and other drinks
• Repealing the state’s individual health insurance mandate (website)
• Allowing grocery stores to sell wine
• Requiring the RMV to notify drivers, when suspending or revoking their licenses, of the exact laws they are accused of violating
• Legalizing secretly recording public officials who are performing their official duties in a public place

Among the initiatives that did not make it through were one to develop three casinos, one to require competitive bidding for energy contracts, and one to require people to provide photo ID in order to vote. The latter question’s backer, Olivier Kozlowski (and radio host Michael Graham) criticized the AG’s decision, saying, ”In Massachusetts, the cheapest ID you can get from the Registry is $25. If there’s someone out there who doesn’t need an ID for anything else in their entire life other than voting, then their ‘freedom of elections’ has been infringed upon, under the Massachusetts constitution.” I actually agree with the AG on this one. A similar ID requirement was upheld by the Supreme Court in Indiana, but photo IDs are free there. To charge $25 for an ID and to require an ID in order to vote is to charge $25 to vote. While I understand why people want to make voter fraud more difficult, requiring people to purchase an item in order to vote is tantamount to a poll tax, and this simply infringes upon the right to vote.

Sources: Mass.gov, MassLive.com, Boston Globe

Good news for liberty from the 11th Circuit Court of Appeals – in a 2-1 opinion, the three-judge panel ruled that it is unconstitutional for the federal government to require Americans to have health insurance. The decision was part of the lawsuit by 26 states against the Patient Protection and Affordable Care Act (“Obamacare”).

According to the majority opinion written by Judges Joel Dubina and Frank Hull:

“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”

Read the full opinion (PDF).

Today was the deadline for ballot initiatives to be filed in Massachusetts for the 2012 election. There are some interesting initiatives that are aiming to get on the ballot:

• The Massachusetts Patient Advocacy Alliance wants to legalize medical marijuana for people suffering from cancer, AIDS, multiple sclerosis, or other serious illnesses. People would need permission from a doctor, and they could only get marijuana from treatment centers that would be regulated by the state Department of Public Health.
• The Fatherhood Coalition filed an initiative to abolish Chapter 209A, a law which allows people to get restraining orders without proof, of even an allegation, of wrongdoing. Designed to protect victims of domestic abuse, the law can also be used unjustly by people who are merely mad at their spouse or want to kick them out of the house.
• Massachusetts Citizens for Life is trying to abolish the state’s individual mandate, which requires all residents to have health insurance. I am glad to see this because, while the national individual mandate is the subject of a lot of controversy and criticism, the state one hasn’t been nearly as much.
• David Nunez, a Colorado casino developer, submitted a petition to allow three casinos in Massachusetts.
• Stand For Children wants teachers’ merit to be weighed above seniority in hiring, layoff, and transfer policies.
• Plus, there were 26 other petitions filed, for a total of 31.

To make it onto the ballot, each question must be certified by Attorney General Martha Coakley. Then, organizers must collect the signatures of 68,911 registered voters by November, as well as another 11,485 signatures by next July.

August 4 update: How did I miss this one? The Death With Dignity Act, which would allow people with terminal illnesses to obtain drugs to end their lives, is trying to get on the ballot as well. In my opinion, this would definitely be a step in the right direction.

On Thursday, former Massachusetts governor Mitt Romney gave a much-publicized speech about health insurance policy…but the speech ended up being a repeat (with a little more detail) of what he’s been saying for a while now. Romney is standing by the Massachusetts law he signed in 2006 requiring all residents to have health insurance (the individual mandate) while condemning the law President Obama signed doing the same thing nationally.

In the speech (and accompanying PowerPoint presentation), Romney said that apologizing for the law he signed as governor might make him more popular with conservatives but “It wouldn’t be honest.” (I couldn’t help thinking for a second, “Well, that hasn’t stopped him before…”) Kudos to Romney for sticking to his guns instead of flip-flopping, but his speech showed that while at least somewhat consistent, he is not a friend to liberty.

Somehow, to Romney, requiring everyone in a state to buy health insurance is a way to “help people get and keep their health insurance,” while doing the same thing nationally is a “government takeover.” He (and his supporters, such as State House Minority Leader Brad Jones) emphasized states’ rights, the new taxes, spending, Medicare cuts, and bureaucracy of Obamacare, its unpopularity with voters, the way it was passed, and its impact on jobs. They argue that the individual mandate is the only way, besides letting people go without needed health services, to prevent the free rider problem where poor people get sick and receive health services that they cannot (and do not) pay for.

But as a Boston Herald reader points out, choosing not to have health insurance is not the same as relying on taxpayers to bail you out. It is conceivable that a person could choose, instead of buying insurance, to simply pay for any health services he or she may receive. This is a risky option and many people would not consider it a good one, but people should have that option, and banning it, as Romney did in Massachusetts and Obama and the Democrat-controlled Congress did nationally, violates everyone’s rights. As long as payment is strictly enforced, a small amount each month if necessary, this would be a better solution to the free rider problem than the individual mandate system, where poor people’s health insurance is still subsidized by tax money. (Price ceilings would make such a system even better and more affordable for everyone, but I digress).

People should oppose the national health insurance “reform” law because it violates people’s rights. People’s rights should never be violated, whether by the United Nations, the federal government, state governments, local governments, or other individuals. Romney may oppose that law, but (as Jeff Jacoby pointed out back in December) he does not oppose it for the right reason. If he did, he would have to oppose the Massachusetts law as well.