Nancy Pelosi: Wrong on Health Care

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by Rob Natelson – original article posted 09-17-09

Speaker Nancy Pelosi has issued a press release in which she purports to rebut those of us who have expressed doubts about the constitutionality of some health care reform plans.

Pelosi (or her ghostwriter) claims:

“The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states… or to the people. But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited. (bolded in original).

For several reasons, this is a highly misleading statement.

First, it fails to mention a concern expressed by many constitutional scholars, including those on the Left: Substantive due process.

“Substantive due process” is the doctrine by which the Supreme Court strikes down laws it deems unacceptably interfere with personal privacy or autonomy. Health care laws that, for example, limit one’s ability to fund and control one’s own health care could well run afoul of substantive due process rules.

Second, the statement fails to mention that, while the Supreme Court has upheld many delegations of power from Congress to executive branch agencies, the Court has affirmed repeatedly that there are limits. Some health care proposals involve wider delegations of authority than any since the New Deal’s National Reconstruction Adminisration (NRA) — which was invalidated by a unanimous Court.

Third, the Pelosi release disregards the fact that on several occasions the modern Supreme Court has struck down overreaching federal legislation, supposedly adopted under the Commerce Power. Also, on several occasions, the Court has interpreted congressional acts narrowly to avoid constitutional conflicts.

Fourth: Pelosi (or her speechwriter) clearly misstate the current Supreme Court’s test for laws under the Constitution’s Commerce Power. The statement that Congress can regulate “activities that have an effect on interstate commerce” should be that Congress can regulate “economic activities that have a substantial effect on interstate commerce.” Non-economic activities, such as some health care decisions, would have to meet a much stricter test. This may seem to be a minor mistake, but for legal purposes it is an important one, and one that, for the Speaker of the House of Representatives, is not easily excusable.

Finally, Pelosi (or her ghostwriter) commits the mistake of failing to look at wider judicial trends. One of these trends is the long-term movement by the Supreme Court toward interpreting the Constitution according to its real meaning – the original understanding of the Founders and Ratifiers.

And virtually no knowledgeable person thinks government health care is constitutional under that standard.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar. (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute.

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The Congressional Budget Office has estimated that having a "public option" would squeeze $100 billion in costs from the system over 10 years because of competition with private insurers, Pelosi said.

Compromise doesn't mean compromising the essence of policy, all know it !!

1. As regards a make-believe scheme, the source of funding coming from a middle class is utterly against the commitment of Democratic party.

2. No cost-competitive advantage of the insurer-friendly scheme does not clear the grave concern about the unsustainable cost of overall health care program in the long run. Baucus scheme Doesn't Bend Cost Curve Enough, Experts Say.

The scheme proposes a "fake" alternative, nonprofit insurance cooperatives -- and it places so many "restrictions" on these cooperatives that, according to the Congressional Budget Office, they "seem unlikely to establish a significant market presence in many areas of the country."

3. Even with some benefit for primary practitioners, the baseless scheme does not come with fundamental payment reform, or a pay for value reimbursement formula. It means that the insurer-friendly scheme is not cleaning up the concerns over a quality issue and $9trillion of deficit over the next decade.

((Here is some of CBO analysis : While the costs of the financial bailouts and economic stimulus bills are staggering, they are only a fraction of the coming costs from Social Security, Medicare, and Medicaid. Over the next decade, the Congressional Budget Office (CBO) projects that each year Medicaid will expand by 7 percent, Medicare by 6 percent, and Social Security by 5 percent. These programs face a 75-year shortfall of $43 trillion--60 times greater than the gross cost of the $700 billion TARP financial bailout)).

4. For Medicare & Medicaid system to survive from the most wasteful structure on earth, enough savings by way of fundamental changes need to be secured, in return, the savings thereof suffice to meet the goal of well-planned public option.

((Even with far less visits to docs, which average a half or a third of them in any other free states, Americans pay roughly twice as much per person right now)).

5. For the record, prior to nation-wide deployment of reform, The State Of "Yes We Can", Minnesota influenced by Mayo clinic spends "20 percent" less per patient than the national average and 31 percent less than in the highest cost state. It highlights that no substantial tax raise is needed at least for sure.

((The $583 billion of revenue package, and the astronomical savings of public option aside, "20%" of $923.5bn (the combined Medicare and Medicaid cost per year, as of July) represents around $184.7bn per year and 1.847trillion over the next decade, and this patient-centered value alone could be sufficient to meet the goal of public option)).

6. In brief, the long-awaited and most hopeful health care plan is to meet these criterias : Affordability, Quality, and A Check function against runaway premiums thereof.

Clearly enough, due largely to its lower overhead cost, purchasing power and fundamental payment reform, the well-planned public option would be doing moore than the fabricated scheme by THE INDUSTRY in these aforementioned regards.

Now is the moment to turn page to contemporary energy and financial upgrades glossed over in 8 years.

Thank You !

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