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    Post Healthcare and The Constitution: Where is the Authority?

    The authority of governance for the modern republics of the world comes directly from the consent of the governed. This is very much true for The United States and this thinking informed The Founding Fathers when they created this country. Coupled with the idea that all authority is derived from the consent of the governed is also the concept that people and government would establish a social contract. This also influenced the early framers of The United States. The social contract is often bandied about by those attempting to empower more authority in a centralized government in the name of more services to the people. However, the truth is that our social contract is The United States Constitution. Any other attempt to create some mythical unwritten social contract outside the one we have is a lie to the citizens hearing it. The Constitution defines governments scope of power and with the bill of rights and supporting amendments limits to it as well. The Constitution also clearly defines the rights of its citizens. These are not menu options but guaranteed to every citizen

    What does The Constitution say about the federal governments authority over healthcare? Is it a federal responsibility? Does it fall within the scope of our social contract?

    Some think that the Preamble to The Constitution grants authority within the "General Welfare" reference. The first problem with this perspective is that The Preamble to The Constitution does not grant powers or authority. The Preamble is the summary statement. It describes the intent for all that follows. It sets the context on how The Constitution should be viewed. The second problem with the idea that welfare grants power to provide healthcare is that it says promote the general welfare not provide the general welfare. The goal is not to give things to the American people but to create conditions in which the American people can enrich themselves.

    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."

    Many would reference the commerce clause (Article I, Section 8, Clause 3). The next logical question is, does the commerce clause apply? The original intent of the commerce clause was to grant Congress legislative authority over international commerce and to insure ease and fair trade between the states. However, there are some limitations to the power of the commerce clause (many which are ignored today). Congress has no regulatory authority over commerce that does not cross state lines. Congress also has no authority to prohibit commerce across state lines, it may only regulate. Any regulation under the commerce clause must be applied equally to each state. Equal protection for the states.

    The Commerce Clause:
    Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

    For the sake of the discussion a patient goes to their doctor for a checkup or a procedure. The patient is receiving a service which is commerce but the doctor or even hospital is local, the transaction it never crosses a state or multiple state lines. Thus the commerce clause does not apply. If the patient traveled to another state to receive the service the commerce clause still does not apply because the transaction is again local. The same is true for the purchasing of health insurance All insurance local to the state, so again the commerce clause does not apply.

    The law prohibiting the sales of insurance across state lines (McCarran-Ferguson Act) is an interesting case looking at it through an originalist lens. First, the whole act is unconstitutional regardless of previous supreme court rulings. The act is a prohibition on commerce. This alone is a violation of the commerce clause. Congress may not prohibit commerce between the states. The act essentially lets the federal government act with the power and authority of a state but lets it act as all states. This is a violation of the tenth amendment. The irony of the McCarran-Ferguson Act is that it has created complexities for those looking to nationalize the U.S. Healthcare industry. If one thinks about it, The Affordable Care Act violates the McCarran-Ferguson Act by creating a centralized insurance exchange.

    The Tenth Amendment:
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”.

    ObamaCare (The Affordable Care Act) attempted to nationalize activities that fall squarely within the authority of the individual states. Additionally, there is no constitutional authority to guarantee any commercial services be mandated to the populace nor for the federal government to require the consumption of a commercial product. These requirements are both a violation of the ninth and tenth amendments to The Constitution as well as a violation of the intent stated in the Prologue. Congress should not be passing laws that take liberty away from the people. The setting up exchanges in place of the state that decided not participate with a state exchange again violated the tenth amendment. The SCOTUS ruling that the word State means whatever the intent of the authors was is a pure violation of historical precedence and calls into question the legitimacy of the supreme court as anything but a political body.

    Medicaid and Medicare also have constitutional issues. The very nature of entitlement funding through the federal government with ever increasing expenditures without formal house appropriation bills to fund these programs violates Article I, Section 7, Clause 1. The question here is whether the House of Representatives has the authority to abdicate its constitutional authority to other institutions? Additionally, these programs are bankrupting the Federal government and need to be addressed.

    Article I, Section 7, Clause 1:
    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

    Every time the federal government has involved itself in healthcare it has driven the costs for everyone up. The simplest truth is that there is no governing authority for the federal government to establish a managing presence in healthcare as well as there being no constitutional mandate to insure that commercial services are made available or consumed. Doing any of these things throws The Constitution onto the scrap heap. If healthcare is to be legally addressed at a national level, The Constitution will need to be amended. Repeal The Affordable Care Act and get out of the way. Let enlightened self-interest and the market place drive the services up and the costs down.

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  3. #16
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    May 2017
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    Quote Originally Posted by Charmony View Post
    Good points, I especially agree with the last sentence. I also think that if Americans had a better diet and lead healthier lives, there would be less need for healthcare insurance.
    which leads to the question of why do food stamp cards cover potato chips, twinkies, candy bars, and soft drinks? isn't that perpetuating the problem? lol

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    Aug 2004
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    is healthcare a right?

    That depends on what your understanding of a "right" is. and what "health care" is. Rights are God-given, i.e., life and liberty - or, if you are not a person of faith, they are what you are entitled to by virtue of being human - still, life and liberty. The purpose of the government is to ensure that citizens do not curtail, obstruct or endanger the life and liberty of others.

    "Health care" is often confused with "health insurance." The first is about the providers of that care - hospitals, clinics, doctors, nurses, therapists - and the second is about how the services and facilities of those hospitals, etc. are paid for. Do you have a right to go to the hospital, see a doctor, therapist, etc? Of course you do. Do they have a right to be paid for their services? Of course they do. The conflict comes in when a system is set up that intervenes between the the providers and the patients, often supplanting the medical professional's judgment for the sake of a protocol that is cheaper; a doctor, in his or her best judgment may think a certain device or medicine or treatment is medically necessary, but the insurer will not cover the cost of it. If that's the case (which it is in many cases) should the hospital, doctor, etc. waive their fee, should the patient have to come up with the payment or should the insurer provide the reimbursement?

    Then there is the "silent epidemic" of the dwindling rank of doctors. While a lot of people in urban areas, or areas where there are university complexes with teaching hospitals or medicals schools attached, may not feel the pinch, in a lot of suburban areas, smaller towns, rural areas there is a slow but progressive doctor drain. If you say "if I arrive at a time when I need medical care, I should be able to get it", that presumes that there will be a hospital and medical professionals to supply it.

    I asked a doctor recently how long it would take for a patient to get an appointment if they called today, and he said, "Two or three months." So yes, you have a right to make an appointment, you won't be denied an appointment, your medical insurer may even pay fairly for the appointment - you're just going to have to wait two or three months for the appointment.

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  7. #18
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    Quote Originally Posted by janer View Post
    is healthcare a right?

    That depends on what your understanding of a "right" is. and what "health care" is. Rights are God-given, i.e., life and liberty - or, if you are not a person of faith, they are what you are entitled to by virtue of being human - still, life and liberty. The purpose of the government is to ensure that citizens do not curtail, obstruct or endanger the life and liberty of others.
    In one sense the notion of is "X" a "right" is a moot one; the term has been abused and twisted by the progressive movement. As you point out, "rights" are God-given. Even then rights are never guaranteed (the "right" to "life" for example doesn't mean that the government - at any level - is required to do whatever it takes to prevent lightning from striking you) but merely that they cannot be taken away by anyone else, especially any level of government.

    As Jefferson would write, "the God who gave us life gave us liberty at the same time." The government doesn't give us life so even if we accept that healthcare is a "right" it would mean by that same logic that this would only mean that the government cannot take away our healthcare "if you like your healthcare ..."

    We get confused by the progressive idea that actually started out as "freedoms" not as "rights" penned by Roosevelt in 1941

    Freedom of speech
    Freedom of worship
    Freedom from want
    Freedom from fear

    It is the later two freedoms, especially the "freedom from want" that causes the most problems with the "rights" based mindset. "Freedom from want" gets morphed into "The right to an adequate standard of living." (Well that's what Wikipedia redirects you to, anyway.) That right is anathema to the classical view of rights as understood by the founders and framers because it is a "positive" right.

    Under the theory of positive and negative rights, a negative right is a right not to be subjected to an action of another person or group—a government, for example—usually in the form of abuse or coercion. As such, negative rights exist unless someone acts to negate them. A positive right is a right to be subjected to an action of another person or group. In other words, for a positive right to be exercised, someone else's actions must be added to the equation. In theory, a negative right forbids others from acting against the right holder, while a positive right obligates others to act with respect to the right holder. In the framework of the Kantian categorical imperative, negative rights can be associated with perfect duties while positive rights can be connected to imperfect duties.
    Let's tl;dr that ..."In theory, a negative right forbids others from acting against the right holder, while a positive right obligates others to act with respect to the right holder."

    So if healthcare is a positive right (again, completely anathema to anything the founders and framers would have considered) it then compels and obligates someone to act with the respect to the right holder. We have a technical term for the forcing of involuntary action of the other ... it's called "slavery." Thus the problem with all positive rights is that it violates the negative rights of others (especially the pursuit of happiness). Thus positive rights are anathema to negative rights; the two cannot exist side by side. To establish positive rights is to abolish negative rights, and with that the entire framework of the Age of Enlightenment. Moreover, such positive rights, cannot be perfect, as it would be impossible to guarantee the existence of the other to act in the first place (healthcare in the Antarctic, for example, isn't always perfectly possible, never mind the International Space Station or worse a manned mission to Mars).

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