-Submitted by David Drumm (Nal), Guest Blogger
Harvard Law School professor Einer Elhauge writes that the very first Congress, in 1790, passed a law that included a mandate that ship owners buy medical insurance, but not hospital insurance, for their seamen. That Congress included 20 framers and was signed by another framer: President George Washington. In 1792, Washington signed another bill, passed by a Congress with 17 framers, requiring that all able-bodied men buy firearms. In 1798, Congress, with 5 framers, passed a federal law that required seamen to buy hospital insurance for themselves.
Why weren’t these examples cited by the Solicitor General during his oral argument?
Randy Barnett, looks at the example of ship owners required to provide health insurance for their seamen. Barnett sees no substantive difference between the purchase of insurance and a regulation requiring the purchase of life preservers or life boats. Ship owners are in the business of commerce and this law regulates how that commerce is conducted.
However, ship owners are not in the business of shipping seamen. Ship owners are in the business of shipping cargo, which sometimes includes passengers. Life preservers and life boats are directly concerned with the shipping business. A regulation requiring that seamen be able to perform their duties would be tied directly to the shipping business. A regulation benefiting those seamen unable to do their work, is not.
Barnett also looks at the Militia Act that required persons to provide their own firearms and notes that this is not a “purchase mandate” since the guns could be gifts or borrowed or inherited.
However, the insurance mandate doesn’t exclude insurance that comes as a benefit from a employer, or insurance that is provided under a parent’s policy.
Two years ago, David Kopel points out that the 1798 law imposed a 20 cents per month withholding tax on a seaman’s wages. This revenue was to be turned over to the Treasury Department and used to support sick and injured seamen. Kopel notes that the 1798 law is a good precedent for programs such as Medicare.
Although Elhauge’s examples are not without problems, the arguments against the first two examples also have their problems.
While a single-payer system would have circumvented the constitutional issues, it would have never made it through Congress.
UPDATE:
Einer Elhauge Replies
Professor Randy Barnett is a good friend who deserves enormous credit for coming up with a creative constitutional argument that has commanded such attention. But I don’t ultimately find his distinctions persuasive, and it isn’t because I like the health insurance mandate. I am on public record calling it bad policy. But that of course does not make it unconstitutional.
Although Barnett acknowledges that the early medical insurance mandates were exercises of Congress’ commerce clause power, he distinguishes them on the ground that they were imposed on actors who were in commerce, namely on shipowners and (in a third example he omits) seamen. His distinction thus means that he admits that these precedents show that if one is engaged in commerce in market A – here the shipping market or the seamen labor market – then Congress has the power to impose a mandate to purchase in market B – here the medical insurance market – even though markets A and B are totally unrelated. This concession conflicts with the argument of the challengers, which claimed that widespread activity in the health care market did not permit a purchase mandate even in the highly related health insurance market. Indeed, this concession seems to make the whole action/inaction distinction collapse because the fact that no relation between the markets is required means that commercial activity in any market – say, the market for employment or food or housing – would permit the Obamacare mandate. Because the Obamacare mandate applies only to those who have income that subjects them to income tax, it is necessarily limited to people who are active in some commercial market and thus his test would be satisfied.
On the gun mandate, Barnett offers two arguments. First, he says it was different because it did not require individuals to buy guns if they got them from someone else. But the Obamacare mandate similarly just requires you to have health insurance; you don’t have to buy it if someone else provides it for you, which is true for many who get their health insurance from the government or their employer, spouse, or parent. Plus, the gun mandate required the self-provision of consumables like ammunition and gunpowder that required purchasing more than one was already going to use.
Second, Barnett says the gun mandate was different because it was an exercise of the militia power rather than the commerce clause power. But I still think this misses the point. As Judge Silberman held, the text giving Congress the power to “regulate commerce” on its face includes a power to mandate purchases given 1780s dictionary definitions of “regulate.” To rebut this, the challengers have relied heavily on the notion that the unprecedented nature of purchase mandates allows us to infer the framers were against them. This example shows there was no such unspoken understanding. Nor does the text of the militia clause give much basis for a greater power to mandate purchases. To the contrary, the relevant portion of the militia clause gives Congress the power “To provide for… arming ….the Militia,” that is the power to provide the militia with arms, which seems the opposite of forcing individuals to self-provide those arms. If that text can be flexibly read to allow a purchase mandate, then such a reading is even more plausible under the Commerce Clause.
Moreover, even if the challengers do win on the Commerce Clause, the mandate must still be sustained if it is authorized under the necessary and proper clause. Given that the challengers admit the constitutionality of the provisions that ban insurer discrimination against the sick and argue that those provisions cannot be severed from the mandate, it seems undisputed that the mandate was necessary to exercise Congress’ commerce clause power to ban such discrimination. The challengers’ argument on the necessary and proper clause thus boils down to their assertion that purchase mandates are not “proper” – and these historic examples refute the notion that the framers thought there was anything improper about purchase mandates.
Finally, Barnett asserts that these are the only examples of federal purchase mandates. Even if that were the case, they seem pretty telling given their framer involvement and they rebut the claim such mandates were unprecedented. But in fact there are many other examples of federal purchase mandates. One federal mandate requires corporations to hire independent auditors. Another requires that unions buy bonds to insure against officer fraud. Such mandates fit the mold of allowing activity in one market to trigger a mandate in a totally different market, and as noted above, if that is constitutional, then so is Obamacare’s individual mandate.
H/T: LGF, Eugene Volokh.
Bob,
I think the exact quote is “You’ve changed man, It used to be about the music.”
As to the following: “I’ll go out on a limb here and say that posters like bhoyo, Blouise & I, among others, find a certain harmony in preserving the limits of constitutional power and that the threat of disregarding such rules and limits sounds more like a cacophony.”
Yep (Eloquence R Me)
Pbh: “Bob, It seems to me that this argument breaks down once you recognize that the ACA does not require someone who already has insurance to replace that with USA sponsored insurance. Quite the opposite, in fact.”
Pbh,
The issue is does the law exercise a power not granted; it matters not whether the law affects only certain people.
Pbh: “Moreover, for those who literally have no deposits, deposits will be provided on a State level within a consortium of pre-existing banks/insurance companies.”
And that pre-existing system would be Medicaid/Medicare; which I’ve been saying all along is the only proper pathway to solid, sound health care reform. Just like most of the other civilized nations of the world we should have a single payer form of health care that doesn’t leave Americans out in the cold to die.
It is not the ends that I object to here but the means which effectively shred the concept of specifically enumerated powers.
Recall what bhoyo wrote earlier:
bhoyo: “Much attention is given to Madison’s comment in fed 44, where he states if the ends are required the ends are expected. What is ignored is Madison qualifying that in fed 40 where he states that “where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.”
If anything I welcome an expansion on FDR’s social policies, but not like this.
I’ll go out on a limb here and say that posters like bhoyo, Blouise & I, among others, find a certain harmony in preserving the limits of constitutional power and that the threat of disregarding such rules and limits sounds more like a cacophony. To quote our dear friend Millhouse once again, “It used to be about the music man” and it still should be.
Again, I want what you want; just not like this.
Hi
Just in case anyone missed Madison;s concerns regarding the broad use of the General Welfare, this out take might be prescient: If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.
I have found the Federalist Papers, Blackstones Coemmnetaries, Sr George Tuckers Commentaries, Wilson Commentaries to a largw degree these treatises followed the Fed papers. One De Toqueville mad a comment about the exent of National Power I found interesting: I HAVE already pointed out the distinction between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at is disposal and united the habit of executing its commands to the right of commanding; if, after having established the general principles of government, it descended to the details of their application; and if, having regulated the great interests of the country, it could descend to the circle of individual interests, freedom would soon be banished from the New World.
HI,
I have a lot of questions regarding Story’s Commentaries, at one point I purcahsed a copy. While I was reading through it I digressed into review ing some one elses analysis of the use of the Federis Essays by the Court. During the Story/ Marshall time I found one reference to a Hamiltonian essay, but nothing else. I have concluded Story attempted a new Fed Papers, and one that expressed the Federalis Party concepts. the Commentaries. Itt dominated a least Harvard Law School for years. Interesing was the praises for the Fed Essaya from all over the world, the trouble for the Court is the body of the Fed Papers disavowed a pliant interpretaion.
Given Citizens United, I think it is very fair to say that the Roberts Court appears to have very little caution in the realm of unintended consequences.
Let us imagine what could happen should the USSC strike down the mandate, but nothing else. After all, there is nothing that I can see that prevents Congress from requiring national insurance carriers to forego “pre-existing conditions” as an underwriting discipline. Should that survive, and I think it could even if the mandate is disallowed, what then?
Chaos is what. Vaporization of all but a very few, maybe only one, insurance company.
And then, when those very few surviving insurance behemoths understand that they cannot survive merely on the backs of those who can afford their regulated premiums, what do they pay their lobbyists to do?
Single payer anyone?
pbh
By the way, I thought about putting quotes around the words “deposits” and “banks” as substitutes for “premium”s and “insurance providers”, but the fact is that with the past two decades of deregulation, they are, for most purposes, one and the same.
pbh
“What, of course, the Court didn’t say [in McCulloch] . . . is . . . we are not just going to have the bank . . . we are going to force the citizenry to put all of their money in the bank.” Clement added, . . . “I don’t think that the great chief justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.”
Bob, It seems to me that this argument breaks down once you recognize that the ACA does not require someone who already has insurance to replace that with USA sponsored insurance. Quite the opposite, in fact.
Moreover, for those who literally have no deposits, deposits will be provided on a State level within a consortium of pre-existing banks/insurance companies.
By the way, it is all well and good to revile the insurance “providers”, but consider the task of replacing them wholesale. Talk about income transfer, lost jobs and government beauracracy.
I think the incremental approach is preferable here. First, let the insurance behemouths sort out how to survive under the “no pre-existing condition left behind” rule. That should reduce their numbers substantially. Then let them figure out how they continue to reap ridiculous profits when they have become quasi-governmental wards a la Fannie Mae. By which more pressure is applied. Then let them come screaming for help.
pbh
bhoyo:
You are correct that Madison reiterated the denial of power in the Cod Bounties debate:
Mr. MADISON. It is supposed, by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawback, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the general welfare! This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited are {428} to be considered as a sort of caption, or general description of the specified powers; and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever — to all such, at least, as will admit the application of money — which is giving as much latitude as any government could well desire.
I, sir, have always conceived — I believe those who proposed the Constitution conceived — it is still more fully known, and more material to observe, that those who ratified the Constitution conceived — that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers — but a limited government, tied down to the specified powers, which explain and define the general terms.
It is to be recollected that the terms “common defence and general welfare,” as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it was ever supposed or suspected that the old Congress could give away the money of the states to bounties to encourage agriculture, or for any other purpose they pleased. If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.
The novel idea now annexed to those terms, and never before entertained by the friends or enemies of the government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete legislative power I have stated, — it would do more; it would supersede all the restrictions understood at present to lie, in their power with respect to a judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever.
This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a judiciary establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws, and apply money providing in any other way for the general welfare. I shall be reminded, perhaps, that, according to the terms of the Constitution, the judicial power is to extend to certain cases only, not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen, that the specification of certain objects does not limit the import of the general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objectsof legislative regulations — as well such as fall under the judiciary article in the Constitution as those falling immediately under the legislative article; and if the partial enumeration of objects in the legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the judiciary article.
{429} There are consequences, sir, still more extensive, which, as they follow dearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.
The language held in various discussions of this house is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted. In a very late instance — I mean the debate on the representation bill — it must be remembered that an argument much used, particularly by gentlemen from Massachusetts, against the ratio of 1 for 30,000, was, that this government was unlike the state governments, which had an indefinite variety of objects within their power; that it had a small number of objects only to attend to; and therefore, that a smaller number of representatives would be sufficient to administer it.
Arguments have been advanced to show that because, in the regulation of trade, indirect and eventual encouragement is given to manufactures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose. But surely, sir, there is a great and obvious difference, which it cannot be necessary to enlarge upon. A duty laid on imported implements of husbandry would, in its operation, be an indirect tax on exported produce; but will any one say that, by virtue of a mere power to lay duties on imports, Congress might go directly to the produce or implements of agriculture, or to the articles exported? It is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports could never be deduced from a power to tax imports, although such a power might indirectly and incidentally affect exports.
In short, sir, without going farther into the subject. Which I should not have here touched at all but for the reasons already mentioned, I venture to declare it as my opinion, that, were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America; and what inferences might be drawn, or what consequences ensue, from such a step, it is incumbent on us all to consider.
Robert’s point in Butler is that this view did not prevail in the SCOTUS.
Hi all,
I have read a little history, as well as Butler and Helvering. In the history reading, I now rely on primary documents. In regard to the general welfare Clause I can find very litttle to substantiate the claims advanced in either Butler of Helevering, that is within the corpus of extant documents of the Ratifying Conventions. The only references I can find of a pliant or broad reading are from Hamilton and the Federalists members, afer Hamilton made the assertion. As we all are aware Fed 41 denies such a power was designed into the clause. I have found reference to Hamilton and Madison adamantly agreeing the Anti federalist Brutus had to be responded to, they fealt his ideas were sophistry, a major point of Brutus was that the General Welfare Clause would be interpreted as we do now. Apparently Publius thought that was wrong then, but changed half it’s mind later when the Cod Bounties were needed. Although I may be mistaken I thin Madison repeated the denial of power when the Cod Bounties were debated on floor of the House.
Bob,Esq:
“McCulloch is not a license for unlimited power; it merely states that there exists implied powers ‘necessary and proper’ to the effectuation of an enumerated power. Or, the enumerated powers NECESSITATE the existence of implied powers to carry them out.”
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You are certainly right about McCulloch, Marshall was a federalist not a tyrant. Hover, the current view of the “General Welfare Clause” is not found in McCulloch but found in two more recent cases: Helvering v. Davis, 301 U.S. 619 (1937)(which held that Social Security enactments did not violate the 10th Amendment and was a valid exercise of Congressional power under the General Welfare Clause and South Dakota v. Dole, 483 U.S. 203 (1987)(where the Court found constitutional under the General Welfare Clause, Congress’ power to punish states by withholding highway funds for failure to comply with the National Minimum Drinking Age Act,)
I think Justice Owen Roberts in US v. Butler, 297 US 1 (1936) sets forth the debate about the meaning of the clause and correctly identifies the advocates for each position as well as stating the current school of thought about the clause:
Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one.
bhoyo:
“yet on a Constitutionsl basis the question of whether or not the mandate is ultra vires seems unanswered.”
(…)
“If the trend continues, despite the gains, will we create a totally non responsive national government ? A budget seems out of the question, the debt is at the moment beyond control. Is there a time when we need to say, this far and no further ? Not to be mean spirited nor regressive, but to take time to evaluate comprehensive reform that centers on the dual goal of social justice, and preservation of the liberty I know my liberal friends value.”
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We won’t know that until SCOTUS rules on the issue. In the meantime, we have set up the intellectual poles within which the answer is likely to come. I think the debate about the powers of the federal government is a useful exercise. The answers to those questions are never static and much like a railroad fireman they require our constant tending.
Your lament about a stagnation of the political process is valid but history tends to show this is most always followed by a bursting forth of progressive legislation designed to cure or ameliorate the degeneration in the body politic that the stagnation wrought. It’s all very cyclical in my view. In 1884 a young Woodrow Wilson wrote about the Congress “which lay foundering in a confusion of warring committees.” Less than twenty-five years later we had a fountainhead of progressive ideas through Congress led by trust-busting Teddy Roosevelt.
In the 1950s, Congress bottled-up all civil rights legislation requiring the House to modify its Rules. The Senate remained a graveyard for the legislation and Congress was again said to be in deadlock. Twenty years later an outpouring of sentiment led by leaders of the Civil Rights Movement catapulted the legislation in the center ring of American politics and we had the greatest expansion of civil rights for minorities and women in our history.
Conservatives are always so gloomy. Read some history and cheer up. Things usually do work out.
As a small reminder about Lopez
1 the channels of interstate commerce,
2 the instrumentalities of interstate commerce, or persons or things in interstate commerce, and
3. activities that substantially affect or substantially relate to interstate commerce.
In particular:
1.Whether the activity was non-economic as opposed to economic activity;
2.Jurisdictional element: whether the gun had moved in interstate commerce.
3.Whether there had been Congressional findings of an economic link between guns and education.
4.How attenuated the link was between the regulated activity and interstate commerce.
PS. Actually, the national bank was funded by the taxpayers (in other words we were forced to put money in the bank).
Is the question as simple as this, we want nationhealthcare so we need to find a rational basis for Constitutional footing ? Sympathy demands a recognition of the problem, everyone agrees there.With medicare and SS in place is this just the logical next step ?
Madison and Hamilton’s debate is still ongoing. We seem to forget, or maybe the secondary histories have a significant role here, that the policies Hamilton pursued were to the advantage of the wealthy, the bank was mentioned, and the Banks largest advocate in the House was Fisher Ames. Ames also became a director of the firts bank. When Hamilton proposed ‘non discrimination’ of the debt good it be assumed the soldier who had alienated his Pierce’s Note out of necessity benefitted ? Did the assumption of state debts benefit the average agrarian of the 18th Century ?
Today we face different challenges, in a significantly different environment. The Dems of today can trace their lineage to Madison, who advocated strict construction of Constitutional powers.Mid 20th Century logic concluded we could attain Jeffersonian ( Madison included ) ends with Hamiltonian means. To a large extent social progress owes it success to that change of means and ends. If the trend continues, despite the gains, will we create a totally non responsive national government ? A budget seems out of the question, the debt is at the moment beyond control. Is there a time when we need to say, this far and no further ? Not to be mean spirited nor regressive, but to take time to evaluate comprehensive reform that centers on the dual goal of social justice, and preservation of the liberty I know my liberal friends value.
Mark: “Hamilton’s almost limitless and expansive view is most certainly the law of the land.”
Mark,
McCulloch is not a license for unlimited power; it merely states that there exists implied powers ‘necessary and proper’ to the effectuation of an enumerated power. Or, the enumerated powers NECESSITATE the existence of implied powers to carry them out.
The test for validity today is whether congress might reasonably find that the act relates to one of the federal powers. U.S. v. Ardoin, 19 F.3d 177, 188 n.37 (5th Cir 1994) Cert denied 115 S.Ct. 327 (1994)
The individual mandate is ultra vires because it is not reasonably related to any enumerated power.
Thus this exchange during oral arguments:
“At one point, Justice Stephen Breyer (who may well have the broadest conception of the Commerce Clause power of anyone alive), asserted that “the national bank . . . was created out of nothing, to create other commerce out of nothing.” Paul Clement, representing the 26 states who filed suit against Obamacare, replied, “What, of course, the Court didn’t say [in McCulloch] . . . is . . . we are not just going to have the bank . . . we are going to force the citizenry to put all of their money in the bank.” Clement added, “I think the framers would have identified the difference between those two scenarios, and I don’t think that the great chief justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.”
The harsh reality, as you’re so fond of referring to, is that Justice Kennedy will most likely hold that the individual mandate decimates the concept of federalism and specifically enumerated powers and it will be struck down.
Good evening,
I am delighted at the level of the responses here, yet on a Constitutionsl basis the question of whether or not the mandate is ultra vires seems unanswered. The participants here are more aware of the historical background, that is the Madison/Hamilton debate than in many places I have visited. The quodlibet produced regarding the ACA, still seems to center around political leanings of the poster, which although anticipated, is still troubling. Pragmatism aside for a second, the whole design of our written constitution begins with ‘We the People of the United States’, and suggests the Constituion is designed to be unifying, not invidious. I am not unaare of the consequences of elections, but have laong lamented the inability we have in reaching a basic agreement as to the extent of national powers.
Mespo, I certainly get the game of it. On the other hand he doesn’t really care about your leanings (after all its not much different from the HS debating team) and you really have nothing needs learning about being pejorative other then there’s a lot of it around and people use it when thats all they got. As such it is not really symbiotic. More like the giant sucking sound that accompanies a waste of time. Then again, whatever flips your switch. For what its worth you won.
mespo,
You and Bob are both pros at innuendo. 😉
1zb1:
“mespo, your really have far more patience then deserved for someone who seems to begin or end every argument with some form of calling others a communist or fascist or both as their chief line of reasoning.”
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Bob & I are old hands at this little interplay. He calls me names and I cite him precedent. It’ s really a healthy relationship. I learn pejorative and he learns my leanings on the law. Symbiotic, don’t you see. 🙂
Gene H:
Your logic and ethics are impeccable. My point is we have to do what circumstances allow. If we can get some controls on costs, then we can proceed to reign in the most eggergious abusers and the most inefficient. It’s a step-by-step approach that is ethically reprehensible but probably the best we can get with the power of the insurers in Congress.
It was Roosevelt’s approach. He used the Sherman Anti-Trust Act to accomplish democratizing the economy and busting “bad trusts.” Incrementally, that led to the Clayton Amt-Trust Act and the Robinson-Patman Act.