Fighting the Good Fight. *bump*

Georgetown Law Professor Randy Barnett continues to explain why the individual mandate to pay health insurance premiums is unconstitutional:

The "Patient Protection and Affordable Care Act" includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power.

Just as we had plenty of professors early on explaining why McCain-Feingold would not pass First Amendment constitutional scrutiny, it might be wise now to listen here, to a law professor opining in his legal area of expertise.



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In RELATED NEWS:
The NY Times top stories today tout the benefits of deep-tissue massage in releasing toxins, and the benefits of good food and healthy diets in maintaining health.

To their surprise, the researchers, sponsored by the National Center for Complementary and Alternative Medicine, a division of the National Institutes of Health, found that a single session of massage caused biological changes.

...

Food is at the center of health and illness, he argues, and so doctors must make all aspects of it — growing, buying, cooking, eating — a mainstay of their medical educations, their personal lives and their practices.

Well, I knew that. (Next thing, they'll be telling us you can pick up more germs waiting to see the doctor to get an antibiotic prescription for your sniffles than if you just treated with common sense at home.)

And things like massage and good food indeed cost money (though don't let anyone fool you that fresh vegetables and fruits necessarily need cost more, via stores like WholePaycheck.)

An individual should be able to look at their own healthcare needs and household budget, and decide if it's better to pay premiums to cover somebody else's family medical care and pre-existing conditions, or if it's better for the individual to spend that money on preventative care: exercise costs, food budget, the occasional massage, and set aside savings for nominal costs, like a routine doctor's visit.

Who better to determine and manage personal health risks than the individual herself? Who better to evaluate medical advice and options than the person paying for their bills out-of-pocket, who actually feels the costs of proposed treatments, and has an incentive to seek efficient care?

Of couse, some might think such an individual is "reckless", or "betting against herself". But look at the track record. Some people are just healthier than others, with less formal "medical" need.

If there are no outstanding bills, no continuing medical need such as prescription drugs, and the option -- with a clean medical history -- to purchase pro-rated insurance as needed in the future, we must allow individual to choose, in consultation with their chosen doctors as per tradition, how to best meet and maintain their own individual health goals.

One size does not fit all when we're talking quality care -- never will, and if Prof. Barnett's work draws attention, in popular circles, to the pre-existing fact that such a mandate is indeed illegal, there might still be time to properly focus on what's causing the painful symptoms of a bloated healthcare industry, without infecting too many others nationally.

Personal Choice is no magic pill to good health, that's for sure, but unlike the insurance game, generally you do end up getting back what you put in.

or, "Be Good to Yourself, because nobody else has the power to make you happy healthy..." (George Michael: Heal the Pain.)


ADDED:
How does this logic fail when you distinguish between the "uninsured" and "the uninsured who have outstanding medical bills for treatment incurred"?

"Sometimes I fault myself for not being able to make the case more clearly to the country," Obama told the audience of about 30 people. He described how Americans paying for health insurance are forced to subsidize those who do not have it, with hospitals passing on the expense of treating the uninsured to insurance companies, which in turn pass it on to clients.

"What they do is, they essentially pass on those costs in the form of higher premiums to the people who do have health insurance," he said.

If you properly frame the issue, you begin to see it's the latter category of uninsured we should concentrate our focus on, by either insuring the poor via Medicaid, or recognizing our undocument immigrants who will still not be insured, or paying any mandatory premiums, under the new "reform".

Push to control medical costs first, Mr. President.* And work on de-incentivizing childbirth costs of undocumented immigrants by eliminating the need for an "anchor baby" to procure citizenship for the family.

* Miami Herald columnist Carl Hiaasen recently gave us a good real-world example of how and why medical costs are skyrocketing, and it has little to do with the minimally treating uninsureds who choose to pay their bills as-they-go:

South Florida remains the Deepwater Horizon of Medicare corruption in the United States, and the gusher is getting worse. No other place even comes close to matching the number of crooked health-care businesses, or the immense dollar amounts that wind up in the pockets of criminals.

While overworked prosecutors crack down on operators like Gonzalez, the latest wave of Medicare cheats is specializing in fictional billing for mental health services, rehab sessions and physical therapy.

As Jay Weaver reported in The Miami Herald last week, mental health clinics in Florida billed Medicare for $421 million in 2009. That's four times more than was billed during the same period by mental health clinics in Texas, and 635 times more than was billed by clinics in Michigan.

As crazy and depressed as Floridians can be, there's no way that we're four times crazier than Texans, or 635 times more depressed than Michiganders.

The only plausible explanation for such a staggering discrepancy in mental-health claims is stealing -- thieves in Florida are simply more adept at fleecing Medicare.

Our dubious distinction as the sleazebag capital of America brought Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius to Miami last week for the first-ever national summit on healthcare fraud.

It wasn't quite as flashy or upbeat as the LeBron James-Chris Bosh-Dwyane Wade summit at the American Airlines Arena, but the mission is nonetheless worthy of attention.

Medicare is the biggest drain on the federal budget, and epidemic fraud is the biggest drain on Medicare. Most older Americans depend on the program to cover many health-care expenses, but the system is sagging and bloated.

Experts say Medicare fraud in South Florida costs U.S. taxpayers between $3 billion and $4 billion annually. It's predictable that Miami-Dade, Broward and Palm Beach counties would be the hotbed, and also the venue for one of every three federal healthcare fraud prosecutions.

Part of the problem is that Medicare pays claims first, then asks questions later. That leaves criminals with a time gap that often allows them to bank the money, shut down their storefronts and scurry on before they get caught.

In 2008, Medicare paid $520 million to home healthcare agencies in Miami-Dade, just for treating diabetic patients. That was more money than the agency spent on that particular illness throughout the rest of the country combined.

The feds then changed the rules and put a cap on claims for homebound patients receiving insulin injections. The scammers simply turned their energies toward other exploitable areas -- in particular, mental health and physical therapy treatments.

Records show that Florida rehabilitation facilities billed $171 million to Medicare last year for physical and occupational services, which was 23 times more than California and 26 times more than New York -- two other states with no shortage of fraud artists.

For years, the Justice Department has been locking up Medicare fraudsters in Florida, yet business is booming. More FBI agents and prosecutors would help, but you'd need an army of them to dismantle all the bogus Medicare operations in South Florida.

What say you, Mr. President? Sounds like a win-win if you can put some people back to work tracking down the bloat in the current system as it is...