National Health Care Unconstitutional?

[GeneralVeers]

If one were to strictly interpret the Constitution, Medicare and CMS represents an intrusion by the Federal government in the rights of the states to govern their own affairs. Many other things also fall into this category (HHS, education, HUD, Welfare etc.) but I don't want to get into those.

What if Federally managed healthcare was defeated in the Supreme Court as a violation of states rights?

States would then be responsible for governing their own healthcare policy. The Federal Medicare tax would be eliminated, and the states would be allowed to tax at whatever rate they wish. States could then decide if they want a completely publicly financed system (like MA), partially funded like Medicaid or completely free market. The benefit would be competition between states for new ideas and efficiencies.

Another benefit might be increased impetus to pass tort reform. If State governments felt they could save a large amount by decreasing medical liability they might just pass beneficial legislation.

Thoughts?

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[Tiger26]

As much as I hate government run health care and believe in total free-market Darwin-like economic, eat the the other animal capitalism, Congress does have the Constitutional authority to regulate and intervene in matters affecting interstate commerce, meaning the the second any part of the health care process crosses state lines, they are able to encroach upon it.

 

[GeneralVeers]

As much as I hate government run health care and believe in total free-market Darwin-like economic, eat the the other animal capitalism, Congress does have the Constitutional authority to regulate and intervene in matters affecting interstate commerce, meaning the the second any part of the health care process crosses state lines, they are able to encroach upon it.

What part of the health care process crosses state lines?

 

[Tiger26]

What part of the health care process crosses state lines?

Probably wasn't as clear as I should have been, but I meant to say that any little thing crossing state lines could be used as a justification to regulate the entire process overall. I'm thinking occasional esoteric lab/path samples sent, the match process, big insurance groups owning hospitals in multiple states, aeromed transporting from one state to another, etc

Essentially, all I'm saying is that they would use little technicalities like this to justify their rational for having authority for the whole thing, especially under the increasingly dictatorial Obama regime.

 

[GeneralVeers]

Probably wasn't as clear as I should have been, but I meant to say that any little thing crossing state lines could be used as a justification to regulate the entire process overall. I'm thinking occasional esoteric lab/path samples sent, the match process, big insurance groups owning hospitals in multiple states, aeromed transporting from one state to another, etc

Essentially, all I'm saying is that they would use little technicalities like this to justify their rational for having authority for the whole thing, especially under the increasingly dictatorial Obama regime.

That would be hard to justify in court. If I had a few million dollars to play with, I'd consider running it by a Constitutional attorney. It might be a way to kill national socialized medicine forever, barring a Constitutional amendment.

 

[docB]

I don't know. There was that recent case (don't have time to look it up right now) where a farmer in Indiana (I think) was forced to comply with a bunch of federal regulation about grain production even though the grain he was growing was going to be used to feed livestock on his farm. It was never going to leave the farm, let alone the state. Yet the feds successfully argued that his grain production was their's to regulate under the interstate commerce clause because any production of grain anywhere affects prices for grain everywhere. That reasoning allows the fed to regulate, take over, nationalize any idustry that produces a fungible commodity.

 

[willow18]

What part of the health care process crosses state lines?

Okay, I could put forth a long legalese argument why it is a interstate issue and all, but here's a simple example: Guy living in State A is having a STEMI. He's 10 minutes from a hospital with a cath lab in State B, but 2 hours from one in his own state. Where do you take him? People are portable in this day and age, and so is their healthcare.

The federal government regulates many things that are much less interwoven and all those have held up in the Courts. Medicare is not the Feds interjecting into state business; it's Federal dollars for a Federal program. Nothing in the constitution prevents the Federal government from creating and running whatever program it wants...

There won't be real Tort reform until the Democrats realize that preventative medicine, EMR and even regulating Big Pharma won't stop physicians from having to practice defensive medicine. You don't hear a peep about it from Washington because the Trial Lawyers have the Dems in their pockets and 95% of congress are lawyers. A thought on that though; imagine we have a national healthcare system: doctors are then Federal employees and can't be sued for any actions occurring while performing government work.

 

[Tiger26]

Okay, I could put forth a long legalese argument why it is a interstate issue and all, but here's a simple example: Guy living in State A is having a STEMI. He's 10 minutes from a hospital with a cath lab in State B, but 2 hours from one in his own state. Where do you take him? People are portable in this day and age, and so is their healthcare.

The federal government regulates many things that are much less interwoven and all those have held up in the Courts. Medicare is not the Feds interjecting into state business; it's Federal dollars for a Federal program. Nothing in the constitution prevents the Federal government from creating and running whatever program it wants...

There won't be real Tort reform until the Democrats realize that preventative medicine, EMR and even regulating Big Pharma won't stop physicians from having to practice defensive medicine. You don't hear a peep about it from Washington because the Trial Lawyers have the Dems in their pockets and 95% of congress are lawyers. A thought on that though; imagine we have a national healthcare system: doctors are then Federal employees and can't be sued for any actions occurring while performing government work.

This is actually already a reality in the form of the Feres Doctrine, which prevents members of the military from suing for malpractice

http://en.wikipedia.org/wiki/Feres_v._United_States

 

[GeneralVeers]

Okay, I could put forth a long legalese argument why it is a interstate issue and all, but here's a simple example: Guy living in State A is having a STEMI. He's 10 minutes from a hospital with a cath lab in State B, but 2 hours from one in his own state. Where do you take him? People are portable in this day and age, and so is their healthcare.

The federal government regulates many things that are much less interwoven and all those have held up in the Courts. Medicare is not the Feds interjecting into state business; it's Federal dollars for a Federal program. Nothing in the constitution prevents the Federal government from creating and running whatever program it wants...

So why do I have a State medical license, not a Federal one?

 

[wook]

This is actually already a reality in the form of the Feres Doctrine, which prevents members of the military from suing for malpractice

http://en.wikipedia.org/wiki/Feres_v._United_States

Mostly true. However, the family of patients can sue (instead of the patient), so being a military doctor does not necessarily exempt you from legal actions and headaches.




Wook

 

[GeneralVeers]

I don't know. There was that recent case (don't have time to look it up right now) where a farmer in Indiana (I think) was forced to comply with a bunch of federal regulation about grain production even though the grain he was growing was going to be used to feed livestock on his farm. It was never going to leave the farm, let alone the state. Yet the feds successfully argued that his grain production was their's to regulate under the interstate commerce clause because any production of grain anywhere affects prices for grain everywhere. That reasoning allows the fed to regulate, take over, nationalize any idustry that produces a fungible commodity.

So essentially the Constitution is meaningless, and the Feds can regulate everything they wish under "interstate commerce"?

This was not what Jefferson intended.....

 

[DogFaceMedic]

So essentially the Constitution is meaningless, and the Feds can regulate everything they wish under "interstate commerce"?

This was not what Jefferson intended.....

I fundamentally agree that it was not Jefferson's intent, and States' Rights are a shadow. But the unconstitutional aspect of what is proposed is more based on individual rights for freedom of association. The current proposals will attempt to restrict how you practice and to whom you can provide medical service. The left will use lifeboat ethics to argue that resources are limited and the gov't has the obligation to ration care. If the left stacks the court -- like under Roosevelt -- they will succeed. Hillary-Care had a clause that dictated the number of residencies in order to force people into primary care.

 

[EM2BE]

Heard there was a huge tax deduction from paychecks in the past few weeks that was added on. Guess I have no clue since I don't have a paycheck to check out. How true is it? What kind of deduction is being taken (more than what there was even a year or 2 ago)?

 

[Speed Racer]

That would be hard to justify in court. If I had a few million dollars to play with, I'd consider running it by a Constitutional attorney. It might be a way to kill national socialized medicine forever, barring a Constitutional amendment.

The Constitution has been ripped to shreds by most administrations save for probably Reagans (probably) over the last 70+ years. At this point it is meaningless and the Federal government rules supreme. The only things that get turfed to the States are the stalemate issues like gay marriage.

And.....what the Obama administration is doing by expanding the role of the Fed and giving it more seizure powers is just another move to centralize power to the executive branch. Which now can declare war, spy on you, print money, seize businesses etc. I'm not sure we still have a representative government anymore. Welcome to autocracy......

 

[Old_Mil]

The Constitution has been ripped to shreds by most administrations save for probably Reagans (probably) over the last 70+ years. At this point it is meaningless and the Federal government rules supreme. The only things that get turfed to the States are the stalemate issues like gay marriage.

And.....what the Obama administration is doing by expanding the role of the Fed and giving it more seizure powers is just another move to centralize power to the executive branch. Which now can declare war, spy on you, print money, seize businesses etc. I'm not sure we still have a representative government anymore. Welcome to autocracy......

Basically.

I have no faith that a Supreme Court which legalized property seizures under eminent domain so that a local government could increase its property tax revenues by turning the land over to a developer who would tear down your home and put something else up would do anything to curtail the power of the federal government.

The refs are crooked and we're playing this game on the road.

 

[diphenyl]

Some would argue that emtala is unconstiutional as it requires us to perform our services without compensation. aka indentured servitude.

 

[GeneralVeers]

Some would argue that emtala is unconstiutional as it requires us to perform our services without compensation. aka indentured servitude.

I've thought that too. I've always thought that Canadian-style healthcare where it's illegal to run a private practice in most instances would be unconstitutional down here. It seems that those making the laws have little regard for the ideals in the Constitution and will do what they want anyway.

 

[Speed Racer]

Some would argue that emtala is unconstiutional as it requires us to perform our services without compensation. aka indentured servitude.

Some would argue that easy credit attracts the American worker into a form of indentured servitude to banks, corporations and the feds. All the while real world adjusted income has actually gone down and thus we have the shrinking of the middle-class. The credit inflated the quality of life and kept people blind to their (relative) shrinking incomes. Just wait till we get socked with inflation and Joe Sixpack can't get credit and his salary stays stagnant. He will be scared and hand over more personal liberty to the feds out of desperation. The nanny state grows.......

 

[GeneralVeers]

Some would argue that easy credit attracts the American worker into a form of indentured servitude to banks, corporations and the feds. All the while real world adjusted income has actually gone down and thus we have the shrinking of the middle-class. The credit inflated the quality of life and kept people blind to their (relative) shrinking incomes. Just wait till we get socked with inflation and Joe Sixpack can't get credit and his salary stays stagnant. He will be scared and hand over more personal liberty to the feds out of desperation. The nanny state grows.......

None of that is illegal or unconstitutional. If stupid people want to make stupid choices then they should pay for them.

Government sponsorship of EMTALA is potentially unconstitutional.

 

[Jeff698]

Some would argue that easy credit attracts the American worker into a form of indentured servitude to banks, corporations and the feds.

Some would also argue that there are black helicopters chasing them and that the UN has troops stationed in our national parks.

And some, like my patient last week, would argue that when they drink alcohol their "left titty gets bigger than their right".

Take care,
Jeff

 

[docB]

So essentially the Constitution is meaningless, and the Feds can regulate everything they wish under "interstate commerce"?

This was not what Jefferson intended.....

I agree with you. Our biggest problem is that right now the sheep bleat with approval of the administration because they think that a larger, socialist government will pay their mortgages, buy their gas and just generally give them money that they confiscate from the evil rich. The judiciary is allowing the federal government to really do anything it wants. And frighteningly this is a relatively conservative court. Wait ‘til the Obama appointees get seated. And the Supreme Court is the tip of the iceberg. Once he’s been going for a little while and his appointees hit all the various federal benches we’ll be missing the good old days before the whole system was exactly like the 9th Circuit.

The fact that they are using “interstate commerce” to get into anything is appalling. But it doesn’t even scare me as much as the Kelo decision that Old Mil mentions here:

Basically.

I have no faith that a Supreme Court which legalized property seizures under eminent domain so that a local government could increase its property tax revenues by turning the land over to a developer who would tear down your home and put something else up would do anything to curtail the power of the federal government.

The refs are crooked and we're playing this game on the road.

None of that is illegal or unconstitutional. If stupid people want to make stupid choices then they should pay for them.

Government sponsorship of EMTALA is potentially unconstitutional.

I agree the EMTALA should be unconstitutional. The argument often given back at us is that we all “voluntarily” made the stupid choice of becoming a Medicare provider and there fore we have to pay the price. The fact that you can’t work without signing up is irrelevant to them.

 

[EM2BE]

Some would also argue that there are black helicopters chasing them and that the UN has troops stationed in our national parks.

And some, like my patient last week, would argue that when they drink alcohol their "left titty gets bigger than their right".

Take care,
Jeff

You said you wouldn't talk about me like that!

 

[Jeff698]

You said you wouldn't talk about me like that!

Yeah, but it's only when you drink!

Take care,
Jeff

 

[KYTNOH]

Congress has essentially forgotten about the 10th Amendment in the last 100 years. State's rights are a joke now for the most part. Healthcare, education, parks, social programs, and bailout plans are never mentioned in the US Constituton as something the federal government can do. If you believe the 10th Amendment then the federal government cannot legally participate in any of these programs. Only the states can. Of course if any elected representative said that publicly 90% of Washington would say you're out of touch with reality. The level of involvement that the federal government has in its citizens' daily lives would be a slap in the face to our founding fathers if they knew about it.

Some would argue that emtala is unconstiutional as it requires us to perform our services without compensation. aka indentured servitude.

EMTALA gets around the 14th Amendment against endentured servitude by technically making compliance with EMTALA optional. EMTALA only applies to hospitals accepting government reimbursement through Medicare. So if a hospital doesn't want to provide uncompensated care then they can refuse to accept any medicare reimbursement. Of course pragmatically speaking no hospital can afford to not accept Medicare reimbursement.

EMTALA also doesn't apply to individual physicians unless they agree to be on the on-call panel. You can easily opt out of EMTALA guidelines by simply not affiliating with a hospital or putting your name on an on-call list. Of course, the choice to not enter emergency medicine would also have to be made.

 

[Perrotfish]

So essentially the Constitution is meaningless, and the Feds can regulate everything they wish under "interstate commerce"?

This was not what Jefferson intended.....

But it was more or less exactly what Adams and Hamilton intended. The debate over federalization of government services has been around awhile.

 

[GeneralVeers]

But it was more or less exactly what Adams and Hamilton intended. The debate over federalization of government services has been around awhile.

Adams lost that debate, however his inteventionalist, unconstitutional policies have won out.

 

[Perrotfish]

Adams lost that debate, however his inteventionalist, unconstitutional policies have won out.

I'm not sure what you mean when you say Adam's 'lost' that debate. I mean, he lost it in the sense that the origional government was organized around the Jeffersonian articles of confederation. But those sucked and they replaced them with the current Constitution that was pretty much a copy of Adams (very federalist) constitution for the commonwealth of Massachusetts. Also how you can think that the guy who more or less wrote the constituion can have unconstitional policies sort of baffles me.

 

[GeneralVeers]

I'm not sure what you mean when you say Adam's 'lost' that debate. I mean, he lost it in the sense that the origional government was organized around the Jeffersonian articles of confederation. But those sucked and they replaced them with the current Constitution that was pretty much a copy of Adams (very federalist) constitution for the commonwealth of Massachusetts. Also how you can think that the guy who more or less wrote the constituion can have unconstitional policies sort of baffles me.

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