Andrew Colclough

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The Volokh Conspiracy - Is the tax power infinite?

One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce  among the several states does not include the power to compel people to engage in commerce. Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax.

For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power?  I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759–60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D? In Sonzinsky v. United States (1937), the Supreme Court declared that it would not inquire into hidden regulatory motives that might have motivated a tax. But in Sonzinsky, the underlying activity (running a for-profit commercial business selling machine guns) was unquestionably within the scope of commercial activities that might be subject to an excise tax.

In contrast, not buying health insurance is not in its nature a commercial taxable activity. Neither is wearing a hat, or getting up when you please, or going to bed when you think it proper.

[...]

It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in instrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.

Read the whole thing volokh.com

You should also get familiar with the absurd Wikard vs. Filburn case which set the precedent for the Federal government to overreach with regard to interstate commerce. Here's more on that case.

Filed under  //   constitution   health care   interstate commerce  

American Thinker: The Moral Case Against Health Care Reform

In a free society, does one individual's needs constitute another individual's obligation to provide? The answer is no; rather, it is the duty of free individuals to decide what and whose needs appear most important to them. In a free society, the individual is of supreme importance and should not to be used as a means to society's ends. The individual has the right to order his actions and possessions in the manner most consistent with pursuing his own happiness and values. This view is consistent with America's founding principles. The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The above rights are known as "Natural Rights," and they protect the individual's right to freedom, autonomy, and self-government -- in other words, to take all the actions required to support the furtherance, fulfillment, and enjoyment of one's own life. They provide no material assurances or particular opportunities to the individual, but rather set conditions that allow the individual to decide what use he shall make of the circumstances in which he finds himself -- to act in his own best interest so long as his actions don't infringe on the equally protected rights of others.

Based on this logic, government programs that involuntarily transfer or redistribute wealth are immoral because they violate the individual's natural right to order his own actions and possessions. Theft is immoral. Likewise, theft via the government is immoral.
READ THE WHOLE THING americanthinker.com

Decent article. Be sure to read the full thing.

Filed under  //   american thinker   health care   theft  

A couple gems from Krugman's -> Closing Arguments on Health Care - NYTimes

Whenever you read Paul Krugman, it is always helpful to remember that this man won a Nobel Peace Prize in Economics. It might as well have been for Pushing Water Uphill. Here are a couple remarkable statements from his latest New York times column. That's right...THE New York Times - where The Vision of the Anointed is valued above any rational thought:

Beyond that, this is a story that could happen only in America. In every other advanced nation, insurance coverage is available to everyone regardless of medical history. Our system is unique in its cruelty.

[...]

So you end up with a tripartite policy: elimination of medical discrimination, mandated coverage, and premium subsidies.

Above, Krugman is referencing the much lauded "pre-existing conditions" angle. Now, in a tiny way, I actually agree that often insurance companies can be extremely harsh in their restrictions regarding people who have pre-existing conditions. However, the problem here is the screwy way some companies define "pre-existing." That should draw Krugman's ire - not the fact that any pre-existing condition must be ignored. The latter concept is lunacy. What would be the incentive to purchase insurance, if you were guaranteed coverage regardless of any pre-existing conditions? The whole point of insurance being that you are paying someone else to pool the risk that you may or may not require healthcare. It is not "discrimination" to willfully take on exorbitant risk.

So what of Krugman's solution: 1) Force insurance providers not to "discriminate." Coercing and removing the risk for mortgage lenders to make less "discriminatory" loans sure worked out really well for the mortgage industry. 2) Mandate everyone purchase insurance to increase the risk pool. Good idea...except that the poor are immediately and totally screwed. His solution for that - subsidize the poor. His solution to pay for that subsidy - you guessed it - taxing other groups of people. This is a fine strategy, if you endorse using the law to plunder various arbitrary groups of individuals. Since the law's sole purpose is to provide justice by defending a man's life, liberty, and property, you should be able to see the obvious contradiction. In short - Krugman solution is practicing injustice to promote justice

Also, with regard to his, "every other advanced nation...," statement; massive entitlement programs are exactly why most of these nations are going broke. Apparently, in Krugman's mind, it is considered "advanced" to not only be fiscally irresponsible, but also to proclaim that A is not A.

Next quote:

Can you imagine a better reform? Sure. If Harry Truman had managed to add health care to Social Security back in 1947, we’d have a better, cheaper system than the one whose fate now hangs in the balance.

Yes, nobel laureate Paul Krugman just referenced Social Security in the same sentence with "better" and "cheaper." Anyone who grasps mathematics knows that Social Security is careening at breakneck speed into the abyss of insolvency. Furthermore - it is a textbook Ponzi Scheme,requiring an ever expanding population of people who pay into the system. (For the record - the current population growth in America is 2.1, a number which includes massive latino immigration rates. In order for a population to maintain itself, the absolute lowest-low population growth rate must be 2.11 children per family.) Krugman's statement above relies on demonstratively ludicrous political platitude that Social Security is a trust fund.

The point I am trying to make here is not that I am a better economist than Paul Krugman. I am not. Rather, our basic assumptions about economics and law are fundamentally different. Paul Krugman's flaw, is not a lack of intelligence -- quite the opposite is true. His problems arise from the rather obvious flaws in his foundational assumptions. 

For instance, Krugman's appeals to the "cruelty" of our system. Surprise, cruelty exists on earth - but in Paul Krugman's mind, only in our health system, and the only solution to this cruelty - is to reject the most basic principal of economics: scarcity. It may be cruel to view healthcare as a scarce resource, but this is an unalterable fact. Again, it is a fact that cruelty exists in our system, but only in a childish fantasy world can you assume this cruelty will be eliminated through the right government program. There will still be the very same amount of healthcare regardless of any program. The cost of healthcare is in direct relationship to its supply and demand, and some inherent inefficiencies within the current system. There may be things we can do to weed out these inefficiencies, but it is nearly a complete denial of human history to believe that a government system will be more efficient. The real cruelty here is perpetrated by the New York Times, by propping up a man who promotes such a Disney-movie level view of economics.

As much as he might try to hide it, Krugman holds firm to Keynesian economic theory, and is a classic purveyor of The Vision of the Anointed. These ideas aren't directly expressed, but can be easily derived from his writings. Take for instance - his vision of law expressed above. Though he doesn't state it directly, it can be determined by simply extending his arguments to their logical conclusion. It is clear that Krugman does not hold that the law is an instrument of justice alone, but that it may also be employed to correct certain economic inequalities within a society. The concept of "economic justice" is based on the simplistic and clearly false notion that all people have the same wants, needs, and drive.

The Vision of the Anointed is complicated, but can be summed up in the idea that broad and complex decisions are best made by "experts" or "intellectuals", rather than individual persons. It assumes that if the right constraints are removed, human dispositions can be improved. Thus, the real key to societal advancement is to install the very best and brightest people to positions in which they have the power to make these decisions. This idea is really at the heart of Keynesian economic theory; that an empowered group is required to manage and provide direction to the vast economic forces within a nation. In other words - The Vision of the Anointed is the belief that an enlightened group of men can make people or society better.

I reject this vision. I tend to follow the Austrian School of economics which is essentially focused on liberty and understanding Human Action. I define law as Frederick Bastiat did:

The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.  
In that statement, I find the proper definition and function of government - a tool, or an extension of individual rights. I acknowledge the depressing, yet true fact that health insurance and health care are scarce resources, and do not exist purely because of my desire for their existence. In my opinion - Krugman bends or discards these facts to serve his vision. His view of the law perverts the law's only function, by legalizing plunder, and preforming actions which would be unlawful if practiced by any individual. Visions ought to be based on facts of nature, rather than attempts to bend nature to fit a vision. The same can be said for economics.

Be sure to read Krugman's entire column here: nytimes.com

Filed under  //   Keynes   austrian school   economics   government   health care   human action   justice   law   liberty   new york times   paul krugman   worldview  

Does the Health Care Reform Bill (without respect of persons) increase, or decrease individual liberty?

 

To whom it may concern,

Here are several brief, though vital, questions when considering a vote on this, or any health care reform action from the federal level:

  • Does the bill give ANY special government sponsored privilege to a private company, which could hinder open and fair competition?
  • Does it make the real costs of medical treatment more transparent for individuals, empowering them to make better decisions, or does it remove or obscure this information?
  • Does the bill benefit one "class" or group of people, at the obligated expense of another?
  • Can the bill be easily removed or revoked in the case that it fails to achieve it's proposed results?
  • Similarly, does this bill create a program which individuals could easily become dependent upon for existence, and would thus be obligated to support?
  • Is the bill tailored to address the specific individual needs, circumstances, and choices of each person it effects, or does it focus on broader generalized groups?
  • Finally, does the bill force any action upon individuals - which does not increase or protect their life, liberty, or property?

Whether or not you should vote 'Yes' or 'No' on the current Health Care Reform Bill, can be summarized in one relatively simple question:

Does the bill in question (without respect of persons) increase, or decrease individual liberty?

If this bill results in a gain of personal responsibility, individual knowledge, cost-price-value transparency, more and freer choice, and/or fairer, more open market competition - WITHOUT sacrificing any of the above, than you should vote 'Yes'.

If it does not, than I must urge you as an American, to vote against such a measure.

This is the only right, just, and prudent course of action.

Thank you.

No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic. Until the day of my death, I shall proclaim this principle with all the force of my lungs (which alas! is all too inadequate).

-Frédéric Bastiat, 1801-1850

Filed under  //   health care   human rights   letter   liberty   reform   vote  

Healthcare should be seen as a Human Wish, as it cannot be a Human Right - Walter Williams

Outstanding summary of Ayn Rand's extended argument in 'Man's Rights', by Walter E. Williams:

Most politicians, and probably most Americans, see health care as a right. Thus, whether a person has the means to pay for medical services or not, he is nonetheless entitled to them. Let's ask ourselves a few questions about this vision.

Say a person, let's call him Harry, suffers from diabetes and he has no means to pay a laboratory for blood work, a doctor for treatment and a pharmacy for medication. Does Harry have a right to XYZ lab's and Dr. Jones' services and a prescription from a pharmacist? And, if those services are not provided without charge, should Harry be able to call for criminal sanctions against those persons for violating his rights to health care?

You say, "Williams, that would come very close to slavery if one person had the right to force someone to serve him without pay." You're right. Suppose instead of Harry being able to force a lab, doctor and pharmacy to provide services without pay, Congress uses its taxing power to take a couple of hundred dollars out of the paycheck of some American to give to Harry so that he could pay the lab, doctor and pharmacist. Would there be any difference in principle, namely forcibly using one person to serve the purposes of another? There would be one important strategic difference, that of concealment. Most Americans, I would hope, would be offended by the notion of directly and visibly forcing one person to serve the purposes of another. Congress' use of the tax system to invisibly accomplish the same end is more palatable to the average American.

True rights, such as those in our Constitution, or those considered to be natural or human rights, exist simultaneously among people. That means exercise of a right by one person does not diminish those held by another. In other words, my rights to speech or travel impose no obligations on another except those of non-interference. If we apply ideas behind rights to health care to my rights to speech or travel, my free speech rights would require government-imposed obligations on others to provide me with an auditorium, television studio or radio station. My right to travel freely would require government-imposed obligations on others to provide me with airfare and hotel accommodations.

For Congress to guarantee a right to health care, or any other good or service, whether a person can afford it or not, it must diminish someone else's rights, namely their rights to their earnings. The reason is that Congress has no resources of its very own. Moreover, there is no Santa Claus, Easter Bunny or Tooth Fairy giving them those resources. The fact that government has no resources of its very own forces one to recognize that in order for government to give one American citizen a dollar, it must first, through intimidation, threats and coercion, confiscate that dollar from some other American. If one person has a right to something he did not earn, of necessity it requires that another person not have a right to something that he did earn.

To argue that people have a right that imposes obligations on another is an absurd concept. A better term for new-fangled rights to health care, decent housing and food is wishes. If we called them wishes, I would be in agreement with most other Americans for I, too, wish that everyone had adequate health care, decent housing and nutritious meals. However, if we called them human wishes, instead of human rights, there would be confusion and cognitive dissonance. The average American would cringe at the thought of government punishing one person because he refused to be pressed into making someone else's wish come true.

None of my argument is to argue against charity. Reaching into one's own pockets to assist his fellow man in need is praiseworthy and laudable. Reaching into someone else's pockets to do so is despicable and deserves condemnation.

Emphasis Added.

Filed under  //   ayn rand   coercion   force   health care   human rights   walter williams   wishes