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Health Care Reform Hot Button 4 - The Individual Mandate is Not Constitutional | An Independent Voters View

Updated on December 15, 2010

The Way Forward

14 December 2010 – Judge Henry E Hudson of the Federal District Court in Richmond Virginia struck down a key element of the Health Care Reform Legislation yesterday. Essentially telling the government that they had overreached in the application of the Commerce Clause in the Constitution, by including an individual mandate to buy health insurance from a private company or be fined.

I have been saying throughout the debate that this mandate was unconstitutional, as it, by force of regulation, unlawfully requires an individual to participate in commercial activity. Taken to its extreme, I could see the day that the government would require you to buy a GM automobile because “It’s good for the Country.”; after all we all own a piece of it now.  Maybe requiring you to buy Government designated ‘War Bonds’ in our ‘National Security Interests’ (10% of your salary sounds reasonable eh) after all we have to control the deficit and bring it down too. Once opened this Pandora’s Box could get really scary in a hurry. I’m not going to dwell on this but the scenarios for this type of government control are endless and get more and more Orwellian as the mind wanders into the details.

This was a sound decision by Judge Hudson, but it now raises the question of, “What is the way forward?”. The Individual Mandate was a key element in the legislation that passed and the rest is now a folding house of cards as it is unsustainable without the IM. Folks that have read my views know that I generally don’t publish unless I can see an alternative way to deal with things I comment on.

First let’s do what proponents for health care reform and even those on the fence would agree on; lets get business, healthcare providers, insurers, and individuals involved in the process to reduce costs. I have been hearing since the Clinton proposals in the 90’s about the rising costs of healthcare. Some of these rising costs were self-inflicted wounds as many of the costs for all of us are tied to what the government says it will pay for goods and services. Many folks pointed out the examples of waste in the Medicare/Medicaid systems due to the prices of stuff like Surgical Sponges (a 4X4 in piece of Gauze) that you can buy at Walgreens for .25 cents, that in the 90’s Medicare was reimbursing suppliers and hospitals over $4.00 for. I know that this is just one item of many. Get some business folks, and insurers together to figure out the logistics of efficient health care supply and delivery. Yes folks it really is Logistics.

Once they have squeezed out every penny, lets look at the business of heath care insurance. Ask yourself why are certain companies more profitable than others? You will find it has much less to do with who they exclude you think, and much more to do with how well they control costs of the services delivered, and how competitive their products are. These are the folks that we have to stop demonizing and get working on a better system. We must encourage and ‘incentivize’ them to provide better products that compete for the population that tends to choose to be uninsured. One immediate way is to open markets across state lines.

Also sometime back in the 90’s and continued during the Bush Administration our congress in an effort to try to hold down costs, limited reimbursement for Doctors in a way that meant they lose money every time they see a Medicare Patient. In the years past congress in its wisdom has overridden the law and done a Doctor Fix, instead of a law fix. Not sure of the wisdom in that since every couple of years we hear about how the Docs will quit seeing Medicare Patients or retire unless they get their money. Fair enough I suppose from their point of view, after all they are running a business and you can’t do it for free. But the gripe I have is Congress has not taken the time to find out why healthcare costs continue to increase at rates exponential to inflation in general. If you come to an answer and a legislative fix to that question, the answer to Doctors pay is not far behind. One of which is outcome-based reimbursement. This idea needs some serious study and explanation to we consumers.

Once again, all of us could be involved in this fix, by monitoring our bills and claims for costs that are clearly out of whack. Health care suppliers and providers could probably reel off a list of dumb prices we authorize in current Medicare legislation and dumb stuff our insurance companies are willing or have to pay for. I would propose that Insurers and Medicare offer a bounty of say 15% of the costs saved to all beneficiaries when they identify those out of line charges to the payer.

There are many good ideas already in the health care reform bill that we may well want to keep. I certainly am for restrictions on insurers to keep people on the rolls when they encounter a life changing health event. Dropping coverage at that point is cruel. Coverage for pre-existing conditions is laudable and would and could be affordable if competition is allowed across state lines, or maybe inclusion in something like the militaries Tri-Care system, which already has a large population in it that is generally in good health. We may have to help subsidize this initially but seems even to this conservative thinker that it is the right thing to do. Better minds than mine should be dwelling on this and offering solutions.

The question we really have to ask ourselves in this continuing saga is, “What would Gillette do?” I use Gillette as the business model because this companies success is built on the safety razor, a product that folks don’t have to have (razor blades), but want and use because they are simple, cheap, and produce a result they would otherwise have to pay a professional much more to achieve. In short it was done in a uniquely American Way.

Let’s get the best of all concerned and figure this out during the next two years. If we don’t I could see the President having to run on failed signature legislation, and the Republicans trying to justify blocking solutions when this decision opens the way to do something meaningful to reduce deficit spending and tha National Debt. I would not want to be wearing those campaign shoes from either side; and I promise you here and now I will be looking and highlighting all along the way those who offer solutions and those who add to the problems.


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    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Jon - It's the truth that will set us free, guess we gotta go find it.

      VC- Thanks for your vote of confidence, Keep your reps feet in the fire till this stuff gets done right.

    • vocalcoach profile image

      Audrey Hunt 

      7 years ago from Idyllwild Ca.

      Thank you for an excellent post! Voted up and awesome - :)

    • JON EWALL profile image

      JON EWALL 

      7 years ago from usa


      Much of the erroneous information comes out of Washington by the politicians and President Barak ''I'' Obama. The problem that most of them never read the bill before voting on it, they simply use the Democrat talking points as programed.The people need to seek the whole truth and nothing but the truth. The liberal media don't help matters by not reporting both sides of the story.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Jon - You are correct in that the replies did not address the issue of increased insurance premiums, if there was a bit more transparency on this so folks understood the costs, and how they are determined we could have a better discussion.

      Government over regulation may well be one of the most significant price problems in the system, if so we need to get the folks in office who will address the issue.

      You should note that I did not demonize the insurance companies in the hub, my research indicates that you are correct and with the very best run companies managing to squeeze out 7% profit margin. but most in the 3-5% range. I think if we did a better job of controlling the logistical and operational costs of medicne a positive effect would be felt in both our pockets and in the profits of the insurers. Thanks for stopping by and commenting.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      HP - From a the distance of India and through the lens of a biased media I can understand your comment, However you are misguided. The great majority of Americans have health care insurance and like the coverage they have. While we do require our government through the Food and Drug Administration, the Environmental Protection Agency etc to set standards and inspect for them, Under our Constitution it is not the Governments responsibility to assure the health of all citizens in this way, in fact the courts are ruling that requiring an individual to buy a product or face a fine, is not an enumerated power in our Constitution. Thanks for stopping by and commenting and I'm working on the hub you requested thanks.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      GmaGoldie - Thanks for commenting, I think the pricing transparency you mentioned is at the root of the problem with the whole system and once a light shines on it we can figure out a way to fix it. Thanks

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Mickey Dee - Thanks for stopping by and commenting Some heartfelt sentiment but they do not contribute to a solution. There are I am certain ways we can achieve reasonable health care coverage for folks if we attack the problem in the right way.

      Fitnezz jim - Thanks to you as well, I refer you to the comment immediately above. As a Health and Welness professional I think personal responsibility here is called for this is not the time for government to subsidize health club memberships (as good as that may be) since many insurers already do in the form of reduced premiums for companies that have effective programs.

    • JON EWALL profile image

      JON EWALL 

      7 years ago from usa


      In the USA we don’t have a so call problem with healthcare. Anyone can go to a emergency medical facility and be taken care of even if you don’t pay for the service due to your inability to pay. The problems that we all are concerned about is the high costs of insurance to the consumer.

      NONE OF THE ABOVE HUB REPLIES addressed why health care providers need to increase insurance premiums to cover their cost of doing business. For example, Government regulations and paper work requirements increase their costs. The cost of liability insurance increase costs and reinbursement by government run programs which reduces payments for services. Last and not least taxation on profits and other items reduce returns to insurance providers. President Barak ‘’ I’’ Obama said ‘’ we need to have more paying into the pool in order to reduce the cost’’, meaning that everyone will be forced to have to pay for insurance. Today there are 15 million unemployed workers not paying into the insurance pools. Insurance companies are paying out a greater percentage of what they are taking in, result higher premiums. Most insurance companies are working on a 3% to 4% profit margin. That’s not a lot when you consider that the government taxes their profits maybe 35%.

      The working middle class and the rich are in many cases paying for the poor to have healthcare. All states have services for the poor ‘’ Medicaid ‘’or other type of clinics which service the poor.

    • H P Roychoudhury profile image

      H P Roychoudhury 

      7 years ago from Guwahati, India

      It is a very informative hub concerning public. The present system of Health Care in US is a system of no care. It is true Hearth care is a personal care. But a State has a duty to do. A person gets sick –why? It is always not because of personal care but in many cases for the careless activity of the State. The care of sanitation, food, atmosphere and environment, all comes under the care of State. Disease is spread from infection and function of the state is to keep the state free from infection. The full burden of Insurance and other expenses- how can be imposed over the person. State is if not all but partially responsible to keep a citizen healthy.

    • GmaGoldie profile image

      Kelly Kline Burnett 

      7 years ago from Madison, Wisconsin


      Enjoyed your reference to Gillette - very inventive. Real solutions are needed and needed now. This conversation is critical to all of us.

      I am alive only because of a surgery. I hate to think what I would be without my heart surgery when I was 14. I pray for the future of fellow Americans.

      The medical system in the US needs a major overhaul - the pricing transparency is a starting point. The light that is being shined upon this problem is late in the game but at least we are now all fully involved.

      Great post - thank you!

    • FitnezzJim profile image


      7 years ago from Fredericksburg, Virginia

      How about this for outside of the box? Trash the debate and make people pay for their own health care.

      As an alternative, subsidize or provide incentives for health clubs (or old fashioned gyms) and preventative care.

    • Micky Dee profile image

      Micky Dee 

      7 years ago

      Nothing new. People who have the money like buying their own and don't mind the rest floundering for care. Funny- Congress doesn't have any problem with voting themselves raises and health-care for themselves- oh yeah, just one term gets them a pension. Insurance companies love the changes and limitations. The hell with insurance companies. It's extortion.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Gus - You may be right but the phraseology has already taken hold don't think you stop that tsunami by stepping in front of a freight train. Thanks for the reminder though that in it's failure to actually achieve reform in the system it is more properly called "soak the middle class on their health care insurance until they scream of government care". Title is just too long.

      Thanks :-D

    • GusTheRedneck profile image

      Gustave Kilthau 

      7 years ago from USA

      Big John (HammerJammer) - One of the first and more important things everyone needs to do about Obamacare is to stop calling it "health care reform." It isn't.

      Gus :-)))

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Tom - While I don't agree that your example correlates with this, since in the 80's it was the repeal of the 18 year old drinking law adopted in the 70's. and the states were not fined for failure to comply, as in the health care law. They just were advised they would not receive a benefit. Later on many states refused highway funding (Montanna and Nevada I think were the first two) in order to change their speed limits back over 55. About two years later higher speed limits was restored when the fallacy of better gas mileage and the return of cheaper oil were realized and the 55 mandate was dropped from federal legislation. Never the less, an unrestricted Federal Government will continuously probe the freedoms and liberties of the individual (it is the nature of the bureaucracy beast to grow) unless we stay vigilant and vote appropriately. Thanks

    • Tom Whitworth profile image

      Tom Whitworth 

      7 years ago from Moundsville, WV


      I agree with your position. Our Federal government has abandoned the Constitution in far too many instances in my opinion.

      I don't believe that it was constitutional for the Fedral Highway Commision to blackmail the states in the late 1980's with loss of funding to force them to adopt an 18 year age for drinking alcohol. I believe this violated both states rights and individual rights of 18 year old citizens.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      eovery - You're right and now is the time to fix it! Thanks!

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Pam - Thanks for stopping by! The waste, fraud and abuse in the system is huge, and has been for a long time. It's something the Pols of both parties campaign on and then do nothing about.

      we have to watch this new crowd and let them know in advance we expect to see results on this in the next two years.

      I agree patient choice of their Doctors is important, and that is why the public option is doomed to failure in this country. We have to find new ways to deal with the whole enchilada and make it better while preserving the freedoms we cherish. I steadfastly believe with the right debate we can do both.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      BPOP - It's apparent that both sides of the argument could use a good dose of common sense before the new year starts. Let's hope maybe this is the first spoonful. Thanks

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Yankee Reb - To a degree much of what you mention is already done, with coverage limits, and you pay more for what you get. One of the major exceptions to this is Medicare. I too am a DNR and am so for my own reasons.

      One of the problems is that most if not all insurers fail to provide an incentive for folks that monitor and question costs. Everyone just accepts that it is what it is and that they can do nothing about it. It's time for that to change.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      LRC Thanks for stopping by and commenting, in many ways you are right and what I hope to achieve here is to start the dialog that eventually answers some of the tough questions, between the last election and the courts we have an answer on the fundamentals of Single Payer (Govt) and Individual Mandate they have both been soundly rejected. Now the opportunity arises for mixed government to look carefully at possible solutions and weigh the alternatives.

      If the President would truly lead on this issue and develop a plan than is workable and does what he himself said was a principal objective of the last plan, and that is reduce costs first. Then we might just be willing to follow and listen when the dialog turns to really tough choices like means testing Social Security and medicare. Thanks lad I'll be looking for more on this from you in the months ahead.

    • eovery profile image


      7 years ago from MIddle of the Boondocks of Iowa

      Only trouble many are still getting healthcare free by just going to the ER and not carrying health insurance. Something is wrong with this.

      Keep on hubbing!

    • Pamela99 profile image

      Pamela Oglesby 

      7 years ago from Sunny Florida

      I think you have written an excellent analysis of some of the problems and made some very good suggestions at working out a better program. I think a bounty for costs saved is a good idea.

      Many needless tests are ordered due to the litigious nature of society and medicine is not a black and white solution to illness, but a bit gray if that makes sense. A doctor has a huge responsibility in deciding if a test is necessary and he has to base some of that on what the patient tells him about their symptoms, not just on a physical or blood work.

      And there is a huge fraud issue.

      You are right about bills and claims being out of whack also. As a nurse at one point I was involved with ordering supplies for a clinic and the prices for things like gauze, bandages, tape, etc. are very over priced, as I could have gone to Walgreens and bought those items for a cheaper price. Hospital supply prices should be more competitive.

      I, like POP, want to have a choice of what doctor I see, and I don't want to get permission to see a specialist. Due to health problems, I have already chosen to buy more expensive insurance coverage for that reason.

      I think this is a very well thought out article. Rated up.

    • breakfastpop profile image


      7 years ago

      Excellent analysis of the current dilemma. The bill does have some very important features in it, but it is way too long and convoluted and I for would like to see a fresh approach. For me, personally, retaining the right to see doctors of my choice and not asking for "permission" to see a specialist is vital. There are ways to cut costs without jeopardizing the health and freedom of so many people. Think of the fraud. That alone accounts for much of the spiraling cost of health care. Voted up and awesome.

    • Yankee Reb profile image

      Yankee Reb 

      7 years ago

      Here is a problem and solution which many people fail to consider:

      What makes the cost of health care so high?

      In a one word answer - ENTITLEMENT!

      People think they are entitled to expensive treatments for low out of pocket costs.

      A person spends $1,200.00 a month for family coverage


      They have a catastrophic health related event and are put on life support in an Intensive Care unit which costs in most cases over $300,000.00 a month (literally)

      $10,000.00 per day

      Everyone insurance pays for this - as I see it - the solution is simple

      If you want ICU coverage - pay extra

      If you want cancer coverage - pay extra

      Just because you can NOT afford all the high cost things does not mean you do not need basic coverage.

      Obama suggested that we make health insurance mandatory just like auto insurance.

      .... However ....

      a person with full coverage on a Yugo does not pay the same as a Bentley owner does.

      a person with full coverage does not pay the same as a liability coverage

      So why not offer a basic coverage for at least younger families with uninsured children or older people like me who do NOT want to be Resuscitated (DNR)?

      In my opinion - if my body does not have the ability to keep going on it's own without machines - what is the purpose of going on? Why rack up a third of a million dollars a month on life support that costs everyone who is covered by the insurer who is paying ---> MY BILL

    • LRCBlogger profile image


      7 years ago

      As always, you present your views with a lot of intelligent thought. I enjoy your hubs. I am a little torn on the individual mandate. I do see how it can be unconstitutional but the alternative is going back to our socialized healthcare...yes, that is correct, our old system was socialized medicine. I could refuse to buy insurance, get sick, and simply go to an emergency room for free treatment. Hospitals pass the costs on to the states who pay a portion and get the rest from the Fed Govt. It is simply a bad system. If the person in my example had health insurance, perhaps preventitive care may have helped them avoid a costly visit in the first place.

      In any case, you are correct that the method we used to control costs is not effective.

      Health care costs are really 'out of sight' for many of us. We simply pay the amount of our deductible and don't really concern ourselves with how much our insurance company was charged. That needs to become more transparent and visible to the people.

      Another strange thing about our current system is that Doctors will bill different amounts for the exact same procedure. This is extremely common and really baffling to me.

    • Hmrjmr1 profile imageAUTHOR


      7 years ago from Georgia, USA

      Folks - It may take a while to answer comments I have to go to work be patient and I will address them in the days ahead. God Bless and Merry Christmas!


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