y'know for Ezra, I think this whole Constitution thing is a trifle passe, and inconvenient... that's why it's an issue of semantics. He doesn't care how it happens as long as it does.

Imagine how much he'll cry if the GOP comes to power and uses that very same argument to over-reach? "b-b-b-but it's not the same!"

Truly, I think there are people who are shocked to believe that you have to actually control what government does...

On the buy and consume, I believe the consume part can be easily rebutted....but not the buy part.

I heard this interview with a Senator, Jay Inslee. He running a petition to stop the overturning of the healthcare act. (the links I found weren't very informative.) The guy was talking about all these great things the act did for seniors and kids. I was so infuriated by the "interviewer" for just serving up questions to let him expound on these things. Never asked about the constitutionality questions...

A tax has to be collected by the governement and has to be for something. Taxing on in-action seems ridicules. It is essentially a head tax which I believe has already been ruled to be unconsitional.

I'm always surprised by this claim of an unlimited power to tax.

Now, first, a direct tax has always meant a tax we pay directly to the government, which this one would be. There are indirect taxes -- but those are always value-added things -- tariffs, excise taxes, sin taxes, etc -- attached to a purchase, and then business collects them and sends them to government.

Now, direct tax: The congress appears to have two direct taxing authorities:

Section 8 of Article I is always cited for authorization - "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."

Now, we know that limits Jerry Nadler's famous attempt to give a market adjustment to income taxes, but what else do we have?

Section 9, following 8 and therefore by the rules of Anglo-Saxon law interpretation (as versus, say the law of the Medes and Persia, where they can't change their minds), modifying 8, restricts direct taxes to be proportional to the population -- i.e., it is effectively a membership cost applied at the state level:

"No capitation, or other direct, Tax shall be laid unless in Proportion to the Census or Enumeration herein before directed to be taken"

So, this unlimited taxing authority... appears to fall down on direct taxes.

Now, Amendment 16 gives some additional direct taxing -- but, again, only in proportion to income, and this health care fee, although administered through the income tax program, is not the same as an income tax. They could have structured this as a uniform income tax that was reimbursable... but they did not:

"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."

I see how that authorizes a federal income tax -- but that language cannot be contorted to say that there's a general taxing authority that lets Congress pick and choose who pays it without basing that choice on either (1) the population of a state, or (2) a proportional income tax.

Since this is neither, and it's clearly a direct tax -- since indirect taxes usually require that there is an economic purchase, not a failure to purchase -- has anyone seen a sensible defense of this taxing authority on Section 8 grounds that actually acknowledged that Section 9 existed, that the 16th amendment existed, and that still somehow they put together a defense of this direct tax?

And the simplest answer on this being not even a proper head tax:

If Sec Sebelius determines that Ohio has no compliant plans, but that every plan in Massachusetts is, and that indeed Romneycare covers everybody there, then you would have every person in Ohio paying, no one in Massachusetts paying, and it fails the test of being in proportion to a state's population.

Ezra Klein makes his money saying things most of the country would scoff at, but not the thin slice of America that still reads his paper. So, yeah, expect him to sound odd unless you are part of that college town administrator or graduate-degree-holding, East Coast corridor apparatchik world he panders to.

Also, this is rather interesting: "...much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power."

Huh? I think the author mistyped. I always thought it was that powers are *granted* to congress et al in the Constitution, and that powers *not granted* to the federal government are reserved to the states.

The commerce clause is a granted, subject to the limitations of the grant (e.g., Bill of Rights) not a limitation on Congressional power.

It's been interesting to watch the Left finally unmasking itself: "The Constitution won't let us do whatever we want... waaaaaaah!" From stating that the Constitution is essentially obsolete, to admissions that (leftist) judges should rule based on their own policy preferences, the Left is finally admitting what we knew all along: they are all in favor of totalitarianism as long as they're on top. Stalin nods.

I thought this passage interesting:

But if, in the name of that noble goal, you construe Congress's power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power.

I don't follow Krauthammer here. How is purchasing health insurance is anything other than "commerce"?

Given the wide latitude for Congress to regulate commerce established by a long line of Supreme Court decisions from Wickard v. Fillburn to Gonzalez v. Raich, I don't think there's any doubt that Krauthammer is wrong about the "interstate" point as well. Here's Antonin Scalia – a supposed originalist – in Gonzalez, which found that Congress could legislate against marijuana that never crossed state lines:

The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce...Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

If the Supreme Court overturns this bill, it won't be because the bill itself is so outrageous in its claims of what Congress can do under the Commerce Clause, but because the Court has decided to turn back its own precedents in favor of a much more restricted and originalist interpretation of the Commerce Clause.

Here's Orin Kerr on Judge Vinson's opinion The Volokh Conspiracy

The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important. In the critical passage on the Necessary and Proper clause, on page 62–63, Judge Vinson relies primarily on original meaning, specifically Federalist No. 33.

How the Supreme Court handles this bill will be telling. As recently as the middle of this decade, it has allowed the Commerce Clause to reach entirely intrastate economic decisions. If it stands on its own recent decisions, it seems hard to see how it overturns the ACA. If it overturns the healthcare bill, will it also roll back these other rulings and truly place limits on Congress via the Commerce Clause? Or will it try to carve out a narrow decision that has little value as precedent, as it did in Bush v. Gore? If it takes the latter route, the court's slide into just another politicized part of our government continues unabated.

Also, this is rather interesting: "...much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power."

Health insurance is not sold across state lines, and HCR does not change that. Yet they want you to believe they may do this because of interstate commerce.

In which case, Congress' power will be unbound. And Article 1 of the Constitution could be reduced to this sentance: Congress shall have the power to do whatever the hell it wants. Pay up, you peasants!

I'll be honest - I don't hold out much hope for the court that decided Raich, Kelo, and McConnell to get this right.

On the other hand, they did partially reverse themselves on McConnell with Citizens United, so there's hope.

On the gripping hand, there's still Anthony Kennedy. Which means the wind still holds some sway in the court.

What SCOTUS need to do is re-interpret or overturn Wickard v. Filburn and rule that if anything that is produced in state for personal use is not subject to the ICC.

That puts the 70% of the laws passed since the 60's up for grabs.

Tying every new law to the U.S. Constitution and really limiting the availability of the tenth -- we might be able to rebuild from where we are.

I'm not trying to troll or stir the pot, just ask a genuine question:

We know that the state of health care is a serious problem in the US. Every other industrialized democracy on the planet has achieved universal coverage at 1/3 to 1/2 of the cost we are currently paying. Many of these countries also have substantially better health outcomes than the US.By far the majority of these countries have done so using single payer plans paid for by direct taxation.

We also know that health care costs (Medicare and the federal contributions to Medicaid) are the fastest growing portions of the federal budget and, if left unchecked, will cause a budget crisis in the US. [Note: In the interest of keeping this from getting even longer, I have omitted citations, but as far as I can tell, everything I have said so far is an objective fact].

Attempts by previous administrations (Eisenhower, Nixon, and Clinton) as well as the current one have not attempted to implement a single payer system for fear that it would be perceived as "socialism". The law passed by the Obama administration seeks an insurance-based solution. In an effort to keep the insurance pools viable, the law attempts to solve the free-rider problem (in which people only purchase insurance when they are already seriously ill) by mandating purchase of insurance or participation in a state-run insurance exchange.

So, finally, the question: If single payer is unacceptable and mandated insurance coverage impinges on our freedom, what concrete steps would you suggest to improve health outcomes and contain costs? Even better, suggest a way to bring per-person health care costs down to the levels paid in other countries while also bringing up outcomes to similar levels.

Many of these countries also have substantially better health outcomes than the US.

Name one.

If single payer is unacceptable and mandated insurance coverage impinges on our freedom, what concrete steps would you suggest to improve health outcomes and contain costs?

Asked and answered multiple times, but here goes: get the government out of the way, stop the AMA from artificially limiting the supply of medical professionals, dismantle the HMO and co-pay system that hides the cost of care from the end consumer.

Even better, suggest a way to bring per-person health care costs down to the levels paid in other countries while also bringing up outcomes to similar levels.

Mu. All socialized medicine programs reduce costs by reducing care and quality. TANSTAAFL.

Every other industrialized democracy on the planet has achieved universal coverage at 1/3 to 1/2 of the cost we are currently paying.

You also have to look at the amount of taxes paid in those countries. And most of Europe is broke. They aren't going to be able to sustain the single payer option over the long term.

Many of these countries also have substantially better health outcomes than the US.

Is this a better outcome?

www.dailymail.co.uk/health/article-1159506/Life-prolonging-cancer-drugs-banned-cost-much.html

www.dailymail.co.uk/news/article-1230349/Bowel-cancer-victims-UK-denied-life-prolonging-drug-thats-free-Europe.html

www.cbc.ca/health/story/2007/10/15/waittimes-fraser.html

We also know that health care costs (Medicare and the federal contributions to Medicaid) are the fastest growing portions of the federal budget and, if left unchecked, will cause a budget crisis in the US.

You're using the wrong tense. That should be written as is causing not will cause. The entitlement programs in the U.S. are not what were envisioned by the founders. The federal government should be a shadow of what it is. The whole system is rigged. You can not get your Social Security benefits without taking Medicare. There is essentially no private health insurance available once you are over 65.

When Social Security was created, it was designed as a a short term program that was supposed to be around for 10-20 years to get those who lost it all in the Great Depression through their final years. It was never designed to be around that you retire at 65 and live another 15 to 20 years.

Medicare was LBJ's pandering to the left.

So, finally, the question: If single payer is unacceptable and mandated insurance coverage impinges on our freedom, what concrete steps would you suggest to improve health outcomes and contain costs? Even better, suggest a way to bring per-person health care costs down to the levels paid in other countries while also bringing up outcomes to similar levels.

Get health insurance back to what it was intended to be -- catastrophic coverage.

Get some tort reform -- limiting the lawyers take, regardless if the plaintiff gets $10K or $10M.

Get the doctors, nurses, etc. that are incompetent out.

Make sure that the consumer knows the real cost and risks.

These are just some of the ones off the top of my head.

As follow up on the question about health outcomes, here are two sources I found that I'm assuming to be reliable:

1. World Health Organization ranking of health systems. The US is ranked #37. Note that this data is from 2000 and may be outdated: http://www.photius.com/rankings/healthranks.html

2. Conference Board of Canada report card on health care: http://www.conferenceboard.ca/hcp/overview/health-overview.aspx This report is aimed at a Canadian audience but gives simplistic rankings (A - F like a report card) for 16 countries and a more detailed comparison between Canada and the US.

It seems clear from these reports that other countries are doing measurably better than the US in quantifiable ways: longer life expectancy, lower premature mortality, lower infant mortality, and lower rates of death due to "medical misadventures".

I find myself back at the same question. Japan, as one example, offers comprehensive health insurance which includes all medical, dental, vision and prescriptions at approximately 1/3 the cost per person we are paying right now in the US. Why can't we have that as our goal?

I understand the point that an aging population will put more financial pressure on health systems around the world and that's certainly valid, but aren't other countries (which are starting at a lower base cost and also have lower rates of health care inflation) still in a better position than the US?

First of all, all WHO figures are useless for comparison between nations because they are all "self-reported", and no two nations use the same definition for life expectancy, infant mortality, etc. For example, a baby isn't considered alive until it's survived 24 hours outside the womb in most of Europe. So a baby that dies two hours after birth was never alive, and so never enters the mortality statistic as it would in the US.

Japan is a very poor example to use, as they will stop being a viable nation within 50 years. They are essentially bankrupt, but nobody's acting that way quite yet. We're already fucked in debt, and we cannot afford to subsidize any more. All health-care costs reported from socialized medicine nations are lies because they leave out subsidies.

Look at REAL metrics that can't be flubbed: 5 year survival rates after cancer diagnosis - US leads. Survival of prematurely delivered babies - again, the US leads.

Oh, and another thing - you are more likely to get MRSA in a British hospital than anywhere else in the world. Assuming you ever get in, that is.

Brian, thank you for the responses, I'm trying to look for sources to confirm these items.

If you'll forgive the pun, if you can trust WHO, whom can you trust?

The problem with the WHO isn't the WHO in this case, it's the way that the statistics are collected. You're comparing apples and bricks and cars, since they take whatever the individual nations send them, and don't correct or correlate for differences in reporting and definition.

So you have to look at each country's stats individually and correct them for definitional differences.

The other thing to consider is that the pro-universal-healthcare types in this country (the US) are mostly progressives, and every word that a progressive says is a lie, including "and" and "the". So when a progressive quotes a study to support their cause you can be almost certain that it's wrong or it's being misreported.