Nanny State, Granny State.

A good law professor knows it's all in how you define the argument, or spin the scenarios.

Susan Estrich wants to introduce us to some uninsured 20-year-olds. And their parents and grandparents, aunts and uncles, who love them very very much, and just want to keep them safe and secure. Her argument doesn't hold.

Her uninsured 20-year-olds impact interstate commerce everday, I'm sure. The ones she'd introduce us to with their internet habits and consumer behaviors, no doubt influenced by mom and dad, and their grandparents' legacies. The trips to Hawaii, the E.R. visits for sunburn for not applying that sunscreen when out of mom's protective sight. (and wear a condom, for heaven's sake!)

But those 20-year-olds: they're not the only ones to be thinking of. If they don't pop for insurance, or aren't covered under the family plan at 20, that's a deliberate, rebellious lifestyle choice. It's not because they don't have access to the cash to consume medical services without paying for services rendered.

Maybe there's a book in it: "How I survived the off season, without liquidating my familial assets, uninsured and jobless, down and out in L.A."


Let's get real: the burden of mandatory insurance will fall on plenty of young people just starting out, who truly will be choosing between gas for the car, and a financial penalty for not surrendering an unused monthly premium rate to an insurance company. Between eating better quality food, or skipping meals to balance their own budget -- which now includes paying for insurance, instead of out-of-pocket as needed, for the minimal medical needs a conservative 20-year-old incurs.

Now if we're talking snowboarding in Colorado when you turn 21... Snorkeling in a foreign country on spring break... Getting smashed and smashing your body parts up, for fun to rebel on the weekends...

To me, that's done by kids whose parents (and grandparents!) can well afford to insure them against the consequences of their reckless actions. Maybe look into an umbrella policy for liability reasons, to protect the family assets should junior's reckless behavior spill over and affect an innocent bystander.

Some families, some young people have a less transactional and more individualized definition of insurance: you pay, with your body and your pocketbook, for bad luck (which can be minimized often) and poor choices. You live, and learn. You take your losses, pick yourself up, and get back to the business of living.

But if you legislate away any assumption of risk.... if you lump the uninsured, well-to-do twentysomethings with their high-lifestyle risks that Susan Estrich writes of, in with the young people who should not be burdened paying off the poor choices of others who have benefitted by being risky, and their bodies years later are naturally paying the price, something is not right in the land.

The commerce clause precedent Estrich alludes to has never gone so far -- even in a hazy penumbral way -- to mandate a young person, any person! , be fined with no opt out, for not subsidizing an ill-thought-out business plan.

(Some of the monies collected allegedly will finance abortion procedures. Making others complicit in paying the costs of terminating an unborn life, with no option not to participate in this deeply personal, ultimate choice. Will we miss our liberties when they're all gone?)

Make no mistake: with no penalties for pre-existing health conditions and no distinguishing between different classes of risk, somebody will be losing. Paying out mandatorily and not getting back.

And that bit about precedent that Estrich the professor -- not Estrich the political consultant -- cites, before lifting the veil and cynically cutting to the chase ("it's all about counting to 5, not exactly rocket science) ?

Well here's another professor who calls the power grab for what it is, and easily distinguishes this newest commerce clause overreach:

The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

If you have money for the Hawaii trip, why not just write a check and send off a donation to a charitable cause -- or just hand one of those poor uninsured 20-year-olds you'd introduce us to enough money to treat at the E.R. for that long-neglected illness, or sudden injury that befalls him.?

Or better yet, start looking forward and thinking outside the box you'd lock us all into. Because we're gonna keep on telling you that not all of us want nannies for our kids, or to sign up on your (abortion included!) health care plan. We choose differently. Get it?

Now, you can't keep telling me that health care is the biggest economic issue — 1/6 of our economy and all that — and then turn around and say there's not enough of a connection to interstate commerce to require 20-year-olds to have insurance. Uninsured 20-year-olds have a much greater impact on interstate commerce than hot-dog stands. I can introduce you to some. They are forces of interstate commerce, and as every parent knows, they are not immortal. They get hurt. They get sick. They should have insurance. If that's the worst thing the nanny state ever does to all of us, I'd say a gracious thanks.

I would not for a minute say that it was unconstitutional, and neither, I believe, will the Supreme Court.

As for one state getting a better deal than the other 49, that is a political question that is precisely the sort the courts don't have to get into, meaning that it's the breaks of democracy, not a case of the majority unfairly discriminating. When you get done counting to 60, you still have to count to five. I don't see five votes to protect 20-year-olds from insurance. Too many parents and grandparents and aunts and uncles in the crowd. Not to mention decades of precedent and the Constitution itself.

---------------

Speaking of nannies, I always wondered about something Estrich referenced in a previous column about her own uninsured nanny. Why do you need to fix a personal problem with a national mandate?

ESTRICH: It is not an argument I'm going to engage in. Sure, do I like fighting with my insurance company to get coverage as we've all done? No. Do I think it will be more pleasant fighting with the government? Frankly, no.

I just would say, Monica, two questions. First of all, I keep hearing people talk about cost control. How do you do it? And second of all, what do I say to a woman whose husband has been diagnosed with cancer, who works a job without health insurance, and who has nowhere to go? I mean, I just -- what do I say?
...
ESTRICH: All I can tell you, Monica, I live in California. I went out to buy health insurance for a woman who helped me raise my children for all these years. I shopped more than six companies. She was at the time, 50. She had gas, of all things, gastritis. And I could not get one of those companies, not one of them, to take my money and write her a policy. Now, I went to all of them. It is a competitive market. But let me tell you, in this competitive market, there aren't a lot of people looking for those over 50 with pre-existing conditions. So tell me what you want me to do about that woman?

If you choose to employ a person in your home, with almost a familial role, why wouldn't you use whatever assets you had from your own prosperous family -- husband and wife -- to insure your "employee" from the get go? And her extended family.

It's not enough just to pay Social Security taxes for household help, why not -- voluntarily -- pay whatever premiums she incurs from when you first introduce an employee to your household and she presumably is young and in good enough health to participate in active child rearing, and most importantly -- still insurable from a smart business point of view? Otherwise, aren't the taxpayers bearing the burden of your smart childcare choice by shifting the employment cost to other, non-involved others? And surely Estrich and her ex-husband can afford to directly help bear the cost of their (former?) nanny's care?

Wouldn't that eliminate the later problem of uninsured (or uninsurable) individuals -- especially those who are, or for a significant period of time were, gainfully employed -- draining on the finite healthcare resources?

Charity begins at home. And eliminating the cost of the risk factor in making individual health decisions doesn't eliminate the risk. Make good choices, and learn from paying off the ones you blow. And don't penalize others -- particularly those not with your bounty of choices in the first place -- for making wiser decisions and sticking by them.

Thanks, and have a nice Friday everyone!