41 Responses to The Long Reach of Obamacare

  • The first problem isn’t as big as you might think. I don’t think ObamaCare bans discrimination against smokers. And if it doesn’t allow discrimination against the obese now, you can bet it will in the future. However, the obese are net deficit reducers. Dying young of a heart attack is cheaper than dying old of cancer. Besides, I don’t mind the government promoting health.

    This is all the more so considering that this plan that allows children to remain on their parents plan until they’re 26. This means – and I hope I’m wrong but I don’t see how – that we will be facing future waves of increasingly unhealthy children and young adults who will have a right to unlimited medical care while not having to pay a dime into the system. What were they thinking?

    Insuring up to 26 is a cost shifting measure. The parents pay for this employee benefit. Minors are already covered. Even those opposed to ObamaCare generally don’t oppose universal health care for minors. Minors and college students generally cannot obtain health care on their own.

    There were a thousand-and-one alternatives that could have been considered, and were actually proposed by Republicans, libertarians, and others in the run-up to Obamacare, that were completely ignored by ideologues who are single-mindedly and irrationally devoted to one and only one type of solution to problems. Among those alternatives would have been to focus heavily on preventative care.

    Republicans didn’t offer any ideas to help the uninsured. They had no political incentive to. I would’ve wholehearted supported a plan to encourage wider use of HSA’s but the Republicans never even considered that. By removing themselves from the table, we got a worse bill. Imagine if they said “Give us the Stupak Amendment and HSA incentives and we’ll give you the rest of what you want.”

    If you’re right about your first point, preventive care is coming. BTW, ObamaCare requires that plans cover regular primary care visits.

    Here’s one idea, from my preferred distributist angle: to promote through incentives new and innovative agricultural projects such as vertical farming, or any number of similar ideas that could have been owned and administered at the local level to provide city-dwellers with more fresh fruits and vegetables. This isn’t pie-in-the-sky stuff; access to healthy food is severely limited for poor people in the inner cities. This in turn has devastating health consequences.

    I am extremely skeptical of these sorts of ideas. And having lived near inner-cities I know for a fact that access to healthy food isn’t the problem. A lot of poor inner-city people will work at grocery stores then use their paycheck to eat at McDonald’s. It’s primarily a cultural problem.

    It is a complete and utter fallacy to argue that the health care crisis we face today is somehow “proof” that the problem can’t be solved locally.

    It’s a complete and utter fallacy to argue that the health care crisis will fix itself entirely through local efforts. It hasn’t worked for a reason. Massachusetts was the only state to accomplish it. And only the state or federal government can accomplish it because the very nature of insurance requires a large risk pool which is why you don’t see local universal health care. Also, the uninsured is a minority that tends not to vote. Too many state and local governments ignore them. It would’ve been like leaving civil rights to the state and local governments in the 60′s. As Rerum Novarum states, one of the functions of government is to ensure that lower levels of government don’t trample on individuals. The cost is another debate but IF cost-effective health care can be provided and state and local governments do not, then the federal government must.

  • Blackadder says:

    Sadly, I think the prospects of ObamaCare ever being invalidated or repealed are very slim (I realize saying this may be unpopular; reality is often unpopular). The courts aren’t going to throw out the mandate (and even if they did this would make the bill worse, not better). To repeal the bill, you need either veto proof majorities in both the House and the Senate, or a filibuster proof majority in the Senate, a majority in the House, and the Presidency. The last time the Republicans had such majorities was the 1920s. You could probably tweak and improve ObamaCare around the edges, and you might even be able to replace it with a different federal health care system (for better or for worse). But you’re not going to see the thing just flat out repealed.

  • Art Deco says:

    Umm,

    It was just enacted without filibuster proof majorities and the fiscal crisis headed this way will make for some interesting innovations. Self-confident prognosticators are foolish prognosticators.

  • Joe Hargrave says:

    “I realize saying this may be unpopular”

    Don’t worry about that! :)

    I think the states are going to try and nullify it, anyway. If it is put to a vote, I believe voters will nullify Obamacare in the states. Specifically, all of the bills I have seen reject the individual mandate to buy health insurance, which is the heart of Obamacare.

    Whether you think that’s a good or a bad idea, it will probably happen.

  • Blackadder says:

    It was just enacted without filibuster proof majorities

    No, the Senate bill was passed when the Democrats had a filibuster proof majority. The reconciliation bill is being passed via reconciliation, which is not subject to a filibuster, but much of the main bill couldn’t have been enacted that way and can’t be repealed that way either.

    I think the states are going to try and nullify it, anyway. If it is put to a vote, I believe voters will nullify Obamacare in the states.

    I’m sure they’ll try, but they won’t succeed. You could get 100% of a state’s voters voting to prohibit the mandate and it wouldn’t matter, as federal law trumps state law where the two conflict.

  • Joe Hargrave says:

    RR,

    “Dying young of a heart attack is cheaper than dying old of cancer.”

    But living for 40 or 50 years with expensive ailments (they don’t all necessarily lead to a young death) is more expensive than living a healthy life and then requiring medical care at old age – which is what health care systems in other countries presuppose. The latter is natural, the former is a cultural problem.

    “Besides, I don’t mind the government promoting health.”

    Well, I certainly do mind the government creating the conditions under which it becomes their interests to regulate and even mandate personal behavior. If that’s the sort of thing you want, I’ll be happy to help you raise money for a ticket to North Korea.

    “Even those opposed to ObamaCare generally don’t oppose universal health care for minors.”

    I do when we have basically abolished denial of coverage for pre-existing conditions, and also have a cultural epidemic of unhealth that creates millions of such pre-existing conditions.

    Fix the cultural problem first. Then cover the minors.

    “Republicans didn’t offer any ideas to help the uninsured.”

    That’s simply not true. Don’t equate things you don’t like with things that didn’t happen.

    “If you’re right about your first point, preventive care is coming.”

    And its something that the feds should help local communities with – not do for them. It is a cultural problem, and also an economic problem. It is not a problem that will be solved by forcing everyone to buy health insurance.

    “It’s a complete and utter fallacy to argue that the health care crisis will fix itself entirely through local efforts.”

    Who said “entirely”? And it isn’t a fallacy, either – it may just be inaccurate, which isn’t the same.

    “It hasn’t worked for a reason.”

    What hasn’t worked? That’s the problem – very little has been tried. What local initiatives were tried, and failed?

    As for your final IF, that is a pretty big IF, and before insisting the feds MUST do anything, a wide range of local options should be tried and implemented.

    But that’s not what a bureaucratic, resource-eating entity is interested in.

  • Joe Hargrave says:

    “You could get 100% of a state’s voters voting to prohibit the mandate and it wouldn’t matter, as federal law trumps state law where the two conflict.”

    Well, according to the courts and Washington, sure. But it isn’t a magical process whereby one piece of paper conquers another, like a game of rock, paper, scissors.

    If enough states nullify Obamacare – over 30 states are said to be considering such legislation – then it will come down to enforcement. Will it be worth the tension and hostility with the states to do all that would needed to be done to enforce a program that the vast majority of citizens want nothing to do with?

  • Blackadder says:

    Well, according to the courts and Washington, sure. But it isn’t a magical process whereby one piece of paper conquers another, like a game of rock, paper, scissors.

    It’s not a magical process, but the internalized customs and habits of the American people. Arguing that states should nullify ObamaCare is like arguing that the solution is to establish an anti-ObamaCare guy as monarch. It’s true that if enough people abandoned their support for the American system of government and transfered it to the monarch, he would win! But it’s not going to happen.

    If enough states nullify Obamacare – over 30 states are said to be considering such legislation – then it will come down to enforcement.

    I’m not quite sure what it is you are expecting the nullifying states to do. The ObamaCare mandate doesn’t require state officials to be involved in the enforcement process (at least not that I’m aware). If you don’t have insurance, a fine is assessed against you, which is collected by the federal government. Short of having state troopers storm the local IRS building I’m not sure what a state could do to interfere with this.

  • Mike Petrik says:

    The nullification debate was decided in the first half of the 19th century, and only the most idiosyncratic constitutional scholars view it as having any continuing vitality whatsoever. Of course, states can always try to ignore federal laws (think George Wallace here), but mostly that just produces interesting theater. I am not convinced that this legislation is unconstitutional, even though I am convinced it is stupid and mischievous. The combination of the commerce and necessary and proper clauses operates, for better or worse, to give Congress rather sweeping powers. It is almost certainly true that the Framers did not envision the large federal government we have today, but the constitution they crafted allowed for it, even if it didn’t make it a requirement. Just as the constitution probably allows for socialism as well, even though the Framers almost certainly would have regarded socialism with passionate derision. The efforts by states to try to nullify this horrible legislation is nothing but feckless grandstanding. Maybe we’ll get some good speeches, but it will not devolve into state defiance and a constitutional crisis (and that is almost certainly for the best). Instead, we will end up with a fiscal crisis eventually cured by a VAT and higher marginal rates on high income earners, as we become more like Western Europe. Not the end of the world, but not a good society for the striving class — i.e., those who are willing to take risks and work very hard to better their lot in life. It is common to point out that Horatio Alger wrote fiction only, but the truth is that the US may not be the best place to be poor, but it is the best place in the world to be poor if you want to be rich. No society has more economic and social mobility. A big government welfare state inevitably suppresses the appetite to strive (by making it less necessary) while at the same time makes striving less attractive (by greatly reducing its returns). Taxes on income are not taxes on the wealthy no matter what the newspapers print; they are taxes on those who are working hard to become wealthy, and such taxes inevitably make the process harder. And neither is this unconstitutional, or even necessarily bad. It depends on one’s values.
    One last rant: take if from a tax lawyer — tax compliance in Western Europe is much worse than in the US, where our impulse to be law-abiding is much more highly developed. It will be interesting to see how Americans respond to a more taxed and regulated society. My hunch is that the ingenuity displayed in Western Europe when it comes to circumventing laws will be replicated here as well, except (of course!) we’ll be better at it.

  • Joe Hargrave says:

    “I’m not quite sure what it is you are expecting the nullifying states to do.”

    I would have to assume that they are able to do “something” – otherwise they wouldn’t be going through this process. That “something”, so they say, is to make the federal law null and void within the state. That’s what nullification does.

    Mike

    “The nullification debate was decided in the first half of the 19th century, and only the most idiosyncratic constitutional scholars view it as having any continuing vitality whatsoever.”

    History and necessity do not recognize anything as “settled.” When circumstances change, so does approved wisdom about what the status quo is.

    Our revolution was not like the French; it was waged, so some argue, in order to preserve certain rights that were being usurped and denied, and not in pursuit of abstract ideals – at least not in the main.

    If enough people believe that the federal government has overstepped its boundaries, arguments to the effect of “this was settled over century ago” will rightfully and truthfully be regarded as utterly meaningless.

    No one should mistake the tolerance, or even the apathy, of the people with regard to federal expansion thus far for some kind of firmly held consensus on the legitimacy of limitless government expansion.

    “The efforts by states to try to nullify this horrible legislation is nothing but feckless grandstanding. Maybe we’ll get some good speeches, but it will not devolve into state defiance and a constitutional crisis”

    Maybe. If it is limited to one state, or even a dozen states, certainly. If it spreads, then these complaints will be about as useful as bringing a watering can to a forest fire.

  • Big Tex says:

    Republicans didn’t offer any ideas to help the uninsured. They had no political incentive to. I would’ve wholehearted supported a plan to encourage wider use of HSA’s but the Republicans never even considered that. By removing themselves from the table, we got a worse bill. Imagine if they said “Give us the Stupak Amendment and HSA incentives and we’ll give you the rest of what you want.”

    http://www.opencongress.org/bill/111-h164/show

    http://www.opencongress.org/bill/111-h1495/show

    http://www.opencongress.org/bill/111-h3400/show

    http://www.opencongress.org/bill/111-h3218/show

    http://www.opencongress.org/bill/111-h3970/show

    http://www.opencongress.org/bill/111-h1086/show

    http://www.opencongress.org/bill/111-h2607/show

    http://www.opencongress.org/bill/111-h3889/show

    http://www.opencongress.org/bill/111-h3468/show

    http://www.opencongress.org/bill/111-h3821/show

    http://www.opencongress.org/bill/111-h3887/show

    http://rules-republicans.house.gov/Media/PDF/RepublicanAlternative3962_9.pdf

  • Moe says:

    “If enough states nullify Obamacare – over 30 states are said to be considering such legislation – then it will come down to enforcement. Will it be worth the tension and hostility with the states to do all that would needed to be done to enforce a program that the vast majority of citizens want nothing to do with?”

    Yes, and wouldn’t the whole thing fall apart if the mandate goes, as insurance companies would go bankrupt.

  • Joe Hargrave says:

    “Short of having state troopers storm the local IRS building I’m not sure what a state could do to interfere with this.”

    Weren’t there showdowns exactly like this in the 60s over desegregation?

    I realize liberals – like that bigoted leftist blowhard Chris Matthews – love to somehow use the example to imply that nullification is inherently racist, but, it was also invoked by abolitionists against the fugitive slave laws before the Civil War.

    This confidence in “the internalized customs and habits of the American people” is entirely misplaced. It’s gotten to the point where even neo-cons are seriously considering ideas such as Phillip Blond’s Red Toryism as a potential buffer against widespread hatred of the federal government:

    http://www.nytimes.com/2010/03/19/opinion/19brooks.html?scp=1&sq=phillip%20blond&st=cse

    I think it would be great to move in that direction – at the state level.

  • Blackadder says:

    I would have to assume that they are able to do “something” – otherwise they wouldn’t be going through this process.

    This is a false assumption, I think. State laws about the mandate strike me as being mainly political theater. A couple of states are bringing lawsuits challenging the constitutionality of the mandate in the federal courts. That’s mainly theater too (the federal courts won’t strike the mandate), but at least there it’s clear what would happen if they won.

  • Joe Hargrave says:

    “State laws about the mandate strike me as being mainly political theater.”

    Not this time. Like with cap and trade, the states are resorting to nullification for self-preservation – Obamacare will break the bank. The states claim they can’t afford to implement it. Governors are supporting nullification efforts for this reason alone.

    It’s been a long time coming, and it may be too little, too late, but many states don’t see this as a choice. It’s a necessity.

  • RL says:

    Not fair Big Tex. There was no media coverage of those bills, so how could anyone have known they existed? Surely Obama and the other Democrats would have considered them had they only known about them!

  • Blackadder says:

    Weren’t there showdowns exactly like this in the 60s over desegregation?

    Yes, and in every one of those cases the state backed down.

    It’s actually easier to imagine state resistance in the desegregation case than with the mandate (I’m speaking logistically, here). If a federal court orders a school integrated you can always call out the state guard to block the entrance to the school. If you do that the feds will send in their own troops and you’re left with two choices: back down or start shooting. But at least there’s a clear point to have a confrontation, which is lacking with the mandate. Is the state supposed to have troops surround people without health insurance wherever they go? Would that even make a difference? (Presumably if it came down to it the feds could have the money taken out of someone’s bank account or garnish his wages or whatever).

  • Blackadder says:

    Not this time. Like with cap and trade, the states are resorting to nullification for self-preservation – Obamacare will break the bank. The states claim they can’t afford to implement it.

    Most of ObamaCare doesn’t require state implementation. It’s a federal program, after all. There are some state costs associated with the Medicaid increase, but this has nothing to do with the mandate and would remain even if it was struck. I suppose some states could just drop out of the Medicaid program. Nevada, for example, has threatened to do so. But that wouldn’t stop ObamaCare, it would just make it a solely federal program, rather than a mostly federal one.

    Of course, any state that tries to drop out of Medicaid or otherwise thwart ObamaCare is playing with fire. Pretty much all the states are dependent on federal dollars to fund many of their programs. If they are in dire fiscal straights that will make them less willing to risk a federal cutoff, not more.

  • Joe Hargrave says:

    I don’t know if I understand the logistics well enough to say for sure whether or not you’re right. What the AZ legislation will do, if it is passed, is this:

    “constitutionally override any law, rule or regulation that requires individuals or employers to participate in any particular health care system”

    “prohibit any fine or penalty on anyone or any company for deciding to purchase health care directly. Doctors and health care providers would remain free to accept those funds and provide those services.”

    “overrule anything that prohibits the sale of private health insurance in Arizona.”

    Now, it seems to me that if this went into effect, what it would mean is this: the state would not enforce any federal law. The police, the sheriffs, the national guard, none of them would participate with the feds.

    So if a person chose not to participate in the federal plan, and refused to pay the fine for that, then the state wouldn’t do the fed’s dirty work for them.

    You bring up the possibility of just garnishing wages. I suppose that could happen, and its something nullifiers ought to consider – but don’t tell me there’s no possible way in which an individual’s bank account could be protected against anyone trying to withdraw money, especially if it is in a local credit union or some other institution that isn’t attached to the feds through bailout money.

    Essentially, where there is a will, there is a way. It may be more complicated and more dangerous than the nullifiers anticipate, but that doesn’t make it impossible. And if enough people want it, it will in fact become easier. If the states are smart, they’ll let the feds make the first blundering, incompetent attempt at despotism after they nullify, rather than trying to secede over this.

  • Mike Petrik says:

    Joe, I don’t doubt that widespread dissatisfaction with this legislation could produce its repeal one way or another, but not via nullification. Not a chance. The two real options are (i) legislative repeal, which clearly is more likely to happen if the GOP ever retakes all three houses (Senate, H of R, and White) and (ii) federal judicial intervention probably based on some theory, grounded in federalism, that Congress over-stepped into state government operations. The latter would have to involve the very operation of state government. The fact that it affects state residents is not enough. There are limits as to what the federal government can require of a state government, and perhaps this legislation crosses that line. I’m not aware of how it would, but perhaps it does. If so, the federal courts will be required to defend state sovereignty. Alternatively, federal courts could hold that even though Congress plainly has the power to require individuals to pay taxes to fund government insurance, it has no power to require such individuals to pay private insurance companies to fund private insurance. I don’t have an informed view on such an argument, but count me very skeptical.

  • Joe Hargrave says:

    Mike,

    Perhaps I’m missing something here. If the states pass legislation that say the individual mandate is nullified… how is it not nullified?

    It’s one thing to argue that, in a contest of wills, the states will back down, even if the voters don’t. Ok, maybe so. But you never specify why you think it will fail. I’ll tell you this much: it isn’t going to fail because people are afraid of the consequences of its success.

    “The fact that it affects state residents is not enough.”

    That’s not the reason given, either in this case, or with cap and trade – though it is a compelling enough reason for people to support the effort. The reason given is that this program will push the states closer to complete financial collapse, if not directly into it.

    So the theory involved would be this: federalism is not a bankruptcy pact (anymore than Catholic social teaching is). If it is a matter of fiscal survival, to say nothing of responsibility, then the states have few other options. They may have to choose between basic services and implementing Obamacare – if the infrastructure collapses, what good are free doctor’s visits?

    And how is it Constitutional for the federal government to impose massive financial burdens on the states anyway?

  • Joe Hargrave says:

    I should add that the financial argument is not the only argument: many think it is unconstitutional based on the tenth amendment as well. But as you pointed out before, it can be interpreted, creatively, to justify just this sort of thing.

  • Joe Hargrave says:

    BA,

    I think the threat posed by Obamacare to the states is greater than you think.

    http://www.heritage.org/Research/Factsheets/The-End-of-Federalism-How-Obamacare-Will-Impact-States

    “If Congress raises eligibility to 133% of the federal poverty level, 33 states would see their Medicaid populations increase by 30%, and 10 states would see their Medicaid populations jump by 50%.”

    After all, this was one of the big talking points during the debate: people who can’t afford (or simply do not have) health insurance but aren’t poor enough to qualify for Medicaid. Covering that gap alone may break the bank, especially in states like AZ that are teetering on the edge.

  • Big Tex, I stand corrected, sort of. A couple of those bills deal with the privatization of Medicare. At least one with tort reform. Those wouldn’t expand coverage. A bunch would offer tax credits which would expand coverage but that’s a part of ObamaCare. You linked to H.R.3887 which would expand coverage for children up to age 25. I wasn’t aware that Republicans supported these ideas which were incorporated into ObamaCare. The final link you provided was not promoted heavily by Republicans once the CBO report came out. The CBO said it would cover less than 10% of the uninsured.

    The Democrats would not agree to a bill without a mandate and the Republicans would not agree to one with a mandate. Bipartisanship was impossible.

  • Blackadder says:

    Now, it seems to me that if this went into effect, what it would mean is this: the state would not enforce any federal law. The police, the sheriffs, the national guard, none of them would participate with the feds.

    Right, but what I’m saying is that state officials don’t typically enforce federal tax law to begin with, so saying that state officials won’t get involved doesn’t say much.

    You bring up the possibility of just garnishing wages. I suppose that could happen, and its something nullifiers ought to consider – but don’t tell me there’s no possible way in which an individual’s bank account could be protected against anyone trying to withdraw money, especially if it is in a local credit union or some other institution that isn’t attached to the feds through bailout money.

    I think pretty much all banks have deposit insurance, which is federal. Again, though, if the feds get a federal court order (in federal court) requiring a bank or employer to turn over the money, it’s not clear what the state could do about it.

    “If Congress raises eligibility to 133% of the federal poverty level, 33 states would see their Medicaid populations increase by 30%, and 10 states would see their Medicaid populations jump by 50%.”

    As I said before, a state could just decide to drop out of Medicaid. That wouldn’t affect the mandate, however, and it remains the case that whatever additional money the states have to cough up to comply with the Medicaid expansion is less than what they are already receiving in federal dollars (and which they may risk losing if they don’t comply).

  • Blackadder says:

    Regarding the Dalmia article, I would say that historically civil disobedience has been effective for the left (e.g. Gandhi, King) but not for the right (e.g. Operation Rescue, tax protesters).

  • Mike Petrik says:

    Joe,
    It may be unconsitutional, but that has nothing to do with a state deciding it is unconstitutional, which is what nullification is. States don’t get to decide which federal legislation is constitutional and which is not. It is well-settled that this is the role of the judiciary, and ultimately the US Supreme Court; and that is going to stay settledd. States can certainly argue that a measure is unconstitutional, and federal courts will decide, but the fact that a state legislature has resolved that a federal law is unconstitutional will not impress the judiciary at all. This is not to say that there are not grounds to question constitutionality; there may be. But nullification has nothing to do with such substantive grounds, but with who decides.
    All that said, it is certainly true that a state could provoke a constitutional crisis simply by not abiding by a federal law that has been upheld. this has less to do with law than simply power (which is the antithesis of law). Many folks anticipated just that during the civil rights era, though thankfully it did not happen.
    There are few people more hostile to the O-Care legislation than me, but nullification is not only lawless it is potentially reckless.

  • Joe Hargrave says:

    BA,

    “what I’m saying is that state officials don’t typically enforce federal tax law to begin with”

    Maybe so – but what happens when an entire state is in revolt? Lets say there was no nullification, but thousands of citizens refused to pay the fines. Who would collect them? Would the feds send in an army, or would they order local law enforcement to do it? I don’t know.

    But if there is nullification and you have an entire state, or lets say, the majority of the state, breaking the federal law, how will it be enforced?

    “if the feds get a federal court order (in federal court) requiring a bank or employer to turn over the money, it’s not clear what the state could do about it.”

    If a state has already nullified a federal law, I should think that preventing federal enforcement of that law would logically follow. Wouldn’t nullification presuppose that federal court orders trying to force compliance will not be obeyed?

    If they have no way of preventing these things, then they shouldn’t be attempting to nullify. They could, as some cities did during the beginning of the Iraq war, just issue non-binding resolutions condemning Obamacare – if they only wanted to grandstand.

    But if they are talking about nullifying a federal law, it follows then that they are also talking about taking what measures are necessary to prevent attempts to force them to comply with the law they nullified.

    As I said, if only one state does it, they will fail. If only a few try it, they will fail. If 30 states do it, then its the ability of the feds to enforce anything that I question.

    “a state could just decide to drop out of Medicaid”

    Well, you’re right: these really are two separate issues.

    “it remains the case that whatever additional money the states have to cough up to comply with the Medicaid expansion is less than what they are already receiving in federal dollars ”

    Is that the case? How do you know?

  • Big Tex says:

    It is my understanding that the federal government derives its power from the states. It exists because of the will of the states. The states don’t exist due to the federal government. I dispute the notion that nullification is lawless and potentially reckless. Nullification comes from the 10th amendment, and thereby the law of the land.

    As far as its alleged recklessness, it is my opinion that there should be some mechanism to check the powers claimed by the federal government. Much of the judiciary is part of the federal government and therefore unsuited for this task. The states, however, govern at a different level and have the duty to check the powers of the ever growing federal leviathan.

    We have forgotten that our nation is a union of states. Fortunately, some states are waking up to this reality and asserting their power in various arenas from fire-arms regulation to the national ID card. Health care reform in its current form should be no different.

  • Joe Hargrave says:

    Mike,

    “It is well-settled that this is the role of the judiciary, and ultimately the US Supreme Court; and that is going to stay settledd.”

    The “well settled” argument means nothing to me or millions of other Americans. We’re not talking about holy dogma here. Whatever we settle in law, we can unsettle real quick.

    “the fact that a state legislature has resolved that a federal law is unconstitutional will not impress the judiciary at all”

    I think they know that, and I don’t think they care. It comes down to enforcement. One state can be forced to comply. A dozen can be forced, probably. I doubt whether or not the impressions, or lack thereof, of the judiciary will have any bearing on the simultaneous revolt of over 30 states.

    “There are few people more hostile to the O-Care legislation than me, but nullification is not only lawless it is potentially reckless.”

    The blame resides with the people who pursued this legislation, not those who resist it. The Declaration of Independence was probably considered reckless in its time too.

    Yes, I’m making the comparison – I don’t think there’s ever been a point in history in which the revolutionaries have not been confronted by the conservatives with the “you’re being reckless” argument. The American rebels probably looked as crazy to the well-off Tories as the tea party folks do to the neo-cons today (I’m not calling you a neo-con, by the way – just making a point).

  • Mike Petrik says:

    Well Joe, certainly if enough folks want a revolution then we’ll have one. Is ObamaCare a sufficient warrant to have such a revolution — not hardly IMO. O-Care may be bad policy — I certainly think it is — but it is probably not lawless. Most bad laws are perfectly constitutional. On the other hand, Roe v Wade was lawless in that the Court exceeded its powers simply because it could. I take your point that as a practical matter states may be able to do the same thing. I suspect that will prove not to be the case, but in any event I disfavor such behavior, whether by state legislatures or federal courts. Be careful what you wish for, Joe. Even if states could successfully ignore federal laws under the pretext of some sort of nullification theory, the end result would not be very pretty and I would not assume you’d like it.

    Tex, your point of view lost in 1865. I don’t see it coming back. It is debatable whether our Union was created by the people or the constituent states, but even assuming the latter it does not follow that because a state voluntarily joined it may voluntarily leave or even ignore those federal laws it decides are unconstitutional, etc.

  • Joe Hargrave says:

    Mike,

    By saying “your point of view lost in 1865″, by the way, you’re just acknowledging my point – that force, not the law books are what matters. It “lost” only because those who accepted it did not have the strength to make it law. Who is to say how the balance of power will end up now?

    “Is ObamaCare a sufficient warrant to have such a revolution — not hardly IMO.”

    Necessity, and not principles, ultimately determine the parameters of politics. Even Catholic teaching used to recognize this – and it still does, if you go straight to the source. Of course we must adhere to our principles as firmly as we can within those parameters – we must not embrace inherently immoral solutions. Rarely are we ever limited, though, to only inherently immoral solutions.

    If it causes the states to go bankrupt, or to choose between bankruptcy and defiance of federal law, then rejecting Obamacare becomes a matter of necessity. The same, by the way, applies to bringing the national guard home and back under state control (especially in the Southwest, where Mexican troops have crossed the boarder to test the AZ national guard), it applies to cap and trade and other “climate” legislation that could also bankrupt states, and other issues.

    It has nothing to do with what was settled in 1865 or any other time. You cannot superimpose past realities onto present circumstances, nor subordinate truth to legalism.

    “Be careful what you wish for, Joe. Even if states could successfully ignore federal laws under the pretext of some sort of nullification theory, the end result would not be very pretty and I would not assume you’d like it.”

    What I would like or not like is not really the point. If we take the founders seriously, and I believe Christian morality seriously, we have a duty to resist injustice. Christ’s crucifixion wasn’t pretty and could have been avoided had he simply obeyed the Sanhedrin. Neither was the American revolution pretty.

    Human beings do not exist to obey governments. Governments exist to secure our unalienable rights. That’s their end of the social contract – if they break it, we are no longer bound to it.

    I support finding any and all ways to peaceably resolve conflicts. But I do not support avoiding conflicts when those ways have been exhausted or become impossible.

  • Blackadder says:

    [W]hat happens when an entire state is in revolt? Lets say there was no nullification, but thousands of citizens refused to pay the fines. Who would collect them?

    I believe the IRS collects the fines. The bill contemplates hiring something like 18,000 new IRS agents, so I think they’ve got it covered.

    Remember also that you can’t violate the mandate unless you don’t have health insurance. Most people already have insurance, and are not likely to want to become uninsured just to make a political point. Even if they did, most people get insurance through their employer, and so couldn’t violate the mandate even if they wanted unless they quit their job (I would also add that if “nullifying” ObamaCare requires everyone to go without health insurance, then the cure is probably worse than the disease).

    If a state has already nullified a federal law, I should think that preventing federal enforcement of that law would logically follow. Wouldn’t nullification presuppose that federal court orders trying to force compliance will not be obeyed?

    Short of armed insurrection it’s not clear to me how a state could prevent a federal court order from being obeyed.

  • Joe Hargrave says:

    So, let me get this straight.

    Six or seven states, comprised of millions of non-compliers with federal law, will be brought to heel by 18,000 IRS agents without any cooperation from state governments. Is that about right?

    I’ll keep saying what I have been saying. If this resistance is limited to a handful of states, the logistical problems you cite are relevant. They become less relevant as the number of states rejecting federal law grows.

    “Most people already have insurance, and are not likely to want to become uninsured just to make a political point.”

    If the legislation does what it says it will do, it will create the conditions under which any number of life problems and contingencies could become an occasion for violating federal law, not just for patients, but for doctors as well.

    Especially in these economic times, mandatory health insurance could put a strain on households and individuals that may have otherwise chosen to forgo it for a time, for a few months or a year, to pursue other things.

    There are all kinds of unforseen consequences that arise when governments overstep their legitimate functions and force citizens to do all sorts of nonsense for some utopian ideal. I don’t have enough faith in the efficiency or morality of federal programs in general to accept that its attempts to play nurse for 300 million Americans will not result in catastrophe.

    “most people get insurance through their employer”

    Not every company is able or willing to provide health insurance, but under Obamacare they will be forced to; yet another segment of society that will have reason to resist the federal takeover.

    “Short of armed insurrection it’s not clear to me how a state could prevent a federal court order from being obeyed.”

    As I’ve said, repeatedly, the sheer force of numbers. Short of armed invasion, it isn’t clear to me how the federal government could force several million people in several states to obey a law that they don’t want to obey, because they can’t afford to or because it is unconstitutional or both.

  • Big Tex says:

    Tex, your point of view lost in 1865. I don’t see it coming back.

    Well, no one was talking secession here, at least not yet. That’s a matter of last resort. We’re talking nullification, an entirely different concept. However, I do see a resurgence in states asserting themselves. And it’s not just health care that’s getting them all riled up.

    http://www.tenthamendmentcenter.com/the-10th-amendment-movement/

    Heck, I’ve heard folks talking about repealing the 17th Amendment (well before Louie Gohmert starting talking about it) and returning to a system where state legislatures elected senators. I believe in times gone by, it was the Senate who was to represent the will of the states, and the House of Representatives to represent the will of the citizenry.

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