Healthcare Reform Thread II

[Darius871]

All that says is that Congress can't define the rights themselves. Big deal?

Congress being unable to define constitutional rights + the total absence of jurisprudence defining health (or healthcare's prolonging of "life") as a constitutional right = Section 5's total inability to independently sustain any healthcare policy whatsoever.

In any event, as I said, Section 5 can't enforce even a judicially-defined substantive right whatsoever against private entities; it's simply a tool to prohibit state action, period. Thus, the failure of an insurer to insure a particular citizen, or the failure of a particular citizen to transact with some insurer, is not subject to Section 5 authority. It's just that simple.

...The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it secures 'the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.' These counts in the indictment [against private citizens] do not call for the exercise of any of the powers conferred by this provision in the amendment.

...When stripped of its verbiage, the case as presented amounts to nothing more than that the [private citizen] defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.

The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing [92 U.S. 542, 555] to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.

...

U.S. v. Cruikshank, 92 U.S. 542 (1875)

"As we have consistently held 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' Williams I, 341 U.S., at 92 [71 S.Ct., at 593] (opinion of Douglas, J.)" United States v. Price, 383 U.S. 787, 799, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966).

United Broth. of Carpenters and Joiners of America, Local 610, AFL-CIO, 463 U.S. 825 (1983)

[Darius871]

I guess the Declaration of Independence is nothing but toilet paper to you: "Right to life, liberty, and pursuit of happiness."

Actually, it is toilet paper. Were you seriously ignorant enough to think it's a source of law in any way, shape, or form?

Then all federal legislation that emerged during Reconstruction and 20th century civil rights movement are unconstitutional??

Who suggested anything of the sort? A great deal of Reconstruction legislation is a prime example of Section 5's proper exercise (prohibition of racially discriminatory state action), and the civil rights legislation had a totally separate Commerce Clause basis (extinguishing discriminatory practices that substantially crimped interstate commerce). These have nothing whatsoever to do with some fictional constitutional authority to "protect human rights" by way of forcing private parties to transact with other private parties.

[flash9286]

Pretty much everything Darius said. Was too busy watching Lost.

[Drake Tungsten]

How did MrFun even come up with this red herring?

I don't know. I never would've thought that telling him to educate himself would result in a page-long ****** fest on the Constitution waiting for me when I got done watching Lost...

[Darius871]

How did MrFun even come up with this red herring?

I don't know. I never would've thought that telling him to educate himself would result in a page-long ****** fest on the Constitution waiting for me when I got done watching Lost...

On the bright side, at least on the odd day where I question whether crippling debt and three years of hell got me anything other than signaling, witnessing such spectacular singularities of legal ignorance on Poly serves as a reminder that occasionally you do learn something in school.

[MrFun]

So then the legal context of "medical necessity" only applies to state governments and not with private insurance companies or any other private organization or individual person.

[Drake Tungsten]

Good god. Stop clinging to some irrelevant concept you think supports your point of view and actually try to learn what the Supreme Court has said on cases relating to the Commerce Clause.

[Kuciwalker]

Congress being unable to define constitutional rights + the total absence of jurisprudence defining health (or healthcare's prolonging of "life") as a constitutional right = Section 5's total inability to independently sustain any healthcare policy whatsoever.

I wasn't actually talking about healthcare, as I don't think it falls under the description anyway.

[MrFun]

I'm following up on what Darius had said in one of his earlier posts about the 14th amendment.

"As we have consistently held 'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' Williams I, 341 U.S., at 92 [71 S.Ct., at 593] (opinion of Douglas, J.)" United States v. Price, 383 U.S. 787, 799, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966).

So if "medical necessity" really only applies insofar as state governments are concerned, then I concede to Darius's point.

X-post: in reply to Drake

[Darius871]

So then the legal context of "medical necessity" only applies to state governments and not with private insurance companies or any other private organization or individual person.

To be honest I'd never even heard of this "doctrine" until you brought it up, and it only took about 30 seconds of googling to see that it has jackall to do with interpretation of what the federal government does or does not have enumerated authority to regulate (see United States v. Oakland Cannabis Buyers' Cooperative). I can't even guess how you got there other than the fact that a Raich dictum tangentially touched on it as a possible defense to a hypothetical criminal prosecution, which simply has nothing whatsoever to do with this thread.

[DaShi]

KBeast :shoot:

[flash9286]

MrFun, you need to more specific what you talking about. The only two "medical necessity" bodies of law that I know of are 1) medical necessity is a defense to criminal prosecution and 2) and what is "medically necessary" under Medicare/Medicaid or your applicable insurance. I don't the see connection with the topic here.

[MrFun]

MrFun, you need to more specific what you talking about. The only two "medical necessity" bodies of law that I know of are 1) medical necessity is a defense to criminal prosecution and 2) and what is "medically necessary" under Medicare/Medicaid or your applicable insurance. I don't the see connection with the topic here.

I was talking about number 2. I thought that this law could allow for an argument on extending federal government authority in health care in addition to authority it already has, under Medicare/Medicaid.

[flash9286]

MrFun, I know nothing about either body of relating to medical necessity, but from a glance at westlaw it looks like the second body of law just relates to defining what treatments are covered under insurances and medicare/medicaid. That is, something may not be covered if it is considered not to be “medically necessary” because: (1) its nature, consequences, or general efficacy is unproven as to the medical condition at issue, or (2) because, while its general efficacy is known, it is not of “medical benefit.”

I still do not see the connection.

[Drake Tungsten]

Nobody knows how this bill will work out. It is an undertaking exponentially more complex than the Iraq war, for example. But to me, it feels like the end of something, not the beginning of something. It feels like the noble completion of the great liberal project to build a comprehensive welfare system.

The task ahead is to save this country from stagnation and fiscal ruin. We know what it will take. We will have to raise a consumption tax. We will have to preserve benefits for the poor and cut them for the middle and upper classes. We will have to invest more in innovation and human capital.

The Democratic Party, as it revealed of itself over the past year, does not seem to be up to that coming challenge (neither is the Republican Party). This country is in the position of a free-spending family careening toward bankruptcy that at the last moment announced that it was giving a gigantic new gift to charity. You admire the act of generosity, but you wish they had sold a few of the Mercedes to pay for it.

http://www.nytimes.com/2010/03/23/opinion/23brooks1.html