25 November 2009

the third wheel of government

is sort of important actually

Particular importance should be placed on the fourth example argument.

The quote being responded to is not entirely silly, but it does have one particular element that is extremely silly. "Where in the Constitution, sir, do you see it authorized that Congress can be involved with "health care," or fund "health care"? I am asking here about the Constitution, not any court rulings. Thank you." -

What exactly is the Supreme Court's rulings then? How are they "unconstitutional"? I realize that the precise functions of the Supreme Court are left somewhat vague and unexamined by the Constitution itself, but many of its founding documents in support (the Federalist papers) do place some importance on the ability of an independent branch of judiciary to check the expanse of powers by legislatures and executives, but it is also implied and noted that they would do just as well to define where those expanses are legal (Constitutional rather), proper, and appropriately designed law. If laws are upheld as Constitutional by court rulings, then they are, in fact, Constitutional. I see no inconsistency there. It is conceivable that they are still bad policies or bad laws which are constitutional (just as there may be good or otherwise well-intentioned laws which are not because of specific clauses within our government's charters). If we are to feel that they are not Constitutional policies, then the onus is to prove that they are not and not merely to look at the document and look for the words "health care". A better use of time as a skeptic of the health care reforms is to look for ways to improve the legislation, or ways to defeat it entirely as a bad or poorly crafted law and to introduce options which are sounder reforms.

I'm not sure that either of these two options are being taken seriously which is why the sort of "10ther" situation has emerged instead as a leading objection. I grant that there are a wide range of federalized policies which seem dysfunctional and inappropriate (the Vice Presidency, the FDA, much of the Dept of Education's tasks, the corporate and regular income tax code's unnecessary complexity, farm subsidies, many regulatory practices, etc). I am not sure that this means there mustn't be a national policy regarding the regulation of insurance, or the provision of basic access to medical care because of some Constitutional conflict. That case is not made by stating that health care is not listed as a Constitutional right or mentioned in the Declaration of Independence. I might be rather sympathetic to that argument if made ideally (that health care, and, most pressingly to our current debate, health insurance are not basic rights), but it doesn't mean I am indifferent to these being claimed as legal rights within the context of a developed nation with the luxury of more expensive and expanded externality considerations over nations struggling to provide basic education, infrastructure, and political stability and that therefore these legal rights could go unrecognized because we didn't found a country based upon them. If however private property rights were so uniquely applicable and absolute, why then do we not focus efforts upon repealing the income tax instead, or upon seeking stronger eminent domain protections than those granted by state or even federal laws since various SCOTUS rulings have empowered powerful interests at the expense of the public, or why then do we not focus upon government takings which do not provide us with any externality benefits at all and instead are mere costs (such as the imperial focus and use of military force abroad with its now minimal, at best, national security boon).

It seems quite clear that health care is a broad and public expense already (either at the state or local level where it is often perfectly constitutional to use public funding and popular policy to boot, or because the costs of inadequate care and public health are additional costs shared already in the costs of our own private care choices). It is one rising expense which has been inappropriately addressed through public debate and policy over many years. This is a critique that I agree with, though to me this critique simply argues that our current system is so horribly flawed from various years of inertia in public policy that we should cast it aside and build from scratch something functional rather than fix something so tangled and broken. I fully agree there are better ways to manage the costs and deliver better quality of care outcomes or expand the number of people who have access to that better quality of care. I don't buy that any attempt to reform this, even to provide health insurance or health care through the government, would be somehow unconstitutional. It might be by some design flaws ineffective policy, but it's very thin ice to claim that it would be illegal.
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