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Free Ridin’


One of the plaintiffs challenging the constitutionality of the Affordable Care Act doesn’t the government has the authority to compel her to purchase health insurance. Rather, she would prefer that the taxpayers pay her medical bills:

Mary Brown, a 56-year-old Florida woman who owned a small auto repair shop but had no health insurance, became the lead plaintiff challenging President Obama’s healthcare law because she was passionate about the issue.

Brown “doesn’t have insurance. She doesn’t want to pay for it. And she doesn’t want the government to tell her she has to have it,” said Karen Harned, a lawyer for the National Federation of Independent Business. Brown is a plaintiff in the federation’s case, which the Supreme Court plans to hear later this month.

But court records reveal that Brown and her husband filed for bankruptcy last fall with $4,500 in unpaid medical bills. Those bills could change Brown from a symbol of proud independence into an example of exactly the problem the healthcare law was intended to address.


Obama administration lawyers argue that the requirement is justified because everyone, sooner or later, needs healthcare. Those who fail to have insurance are at high risk of running up bills they cannot pay, sticking the rest of society with the cost, they argue. Brown’s situation, they say, is a perfect example of exactly that kind of “uncompensated care that will ultimately be paid by others.”

Exactly correct. This is precisely why the argument that the mandate in the ACA represents some kind of unprecedented violation of freedom by “forcing” people to join the health care market would, in a rational universe, be laughed out of court. Nobody in the actually existing health care market can “choose” not to enter the relevant market, because we don’t live in a conververtarian dystopia in which the non-wealthy have to go without emergency medical care. And this is precisely the kind of collective action problem the commerce clause was designed to allow the federal government to address.

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  • Anonymous

    Hey! Where’s the link/citation for that block quote?

  • proverbialleadballoon

    who pays for her shooting herself in the foot?

    • c u n d gulag

      And who pays for the Dentist, since when she shot herself in the foot, her foot was in her mouth?

  • Davis X. Machina

    “…the argument that the mandate in the ACA represents some kind of unprecedented violation of freedom by “forcing” people to join the health care market would, in a rational universe, be laughed out of court.”

    To avoid sinking into hackery, I have one fixed, enduring, widely applicable, rational jurisprudential criterion that I apply. By applying it I don’t make the call on what would otherwise be an utterly irresponsible, personalized ad-hoc, case-by-case basis.

    You’ll have to tell me the party responsible for the passage of the legislation before I can decide on its constitutionality.

    • c u n d gulag

      Is that you, Sam Alito?
      Or is this Clarence Thomas?

      • Rarely Posts

        I actually think this is Thomas or Scalia.

        I don’t think we know yet whether Roberts or Alito will turn out to be total hacks on the commerce clause issues. This case should tell us.

  • LosGatosCA

    Keep the courts out of my Galtian bankruptcy!

  • Horoable…Bob

    That fuckin’ constitution. Mucking things up again.

    Why, we could have the utopia if only we would give government all the power it wants.


    • gocart mozart

      Hey everybody, It’s the scarecrow from the wizard of Oz.

      • proverbialleadballoon

        guys, his name is horoable bob without an n.

    • joe from Lowell

      You mean like the power to cancel someone’s debt obligation to a hospital, causing it to have to eat the cost of her treatment? Thank kind of government power?

      • gocart mozart

        No, that’s different because, Shut Up!

      • John

        Not to mention the power to enforce debt obligations in the first place.

    • c u n d gulag

      Have you actually ever even read The Constitution?

      It’s designed to be a living document – which means it’s subject to change. That’s why it has an ‘amendment’ process built right into it.

      Maybe if a comic book artist were to illustrate it, you might finally be able to get something out of it?
      But I doubt it.

      • Horoable…Bob

        c u n t gulag,

        So, where’s the amendment offered up that would allow this?

        • Spud

          Article 1, Section 8, Clause 3 + the 10th Amendment

          • Horrible…Bob

            Doesn’t fly.

            c u n t gulag said it was a “living document” and that’s why we have the amendment process…for change.

            I see no amendment offered up for this change. All I see is your lame attempt to give “cunt” cover for the stupid, stupid statement(s) she makes.

            Maybe you’d like to try again?

            • c u n d gulag

              “She’s” me – and I’m a “he!”

              I’m 54, and a 6 foot 2, 250 pound, former HS and semi-pro football player, track athlete, wrestler, and a bartender and bouncer – in between corporate gigs.


              • Horrible…Bob

                I’m a “he!”

                Mmmmm….probably not.

                Too effeminate. When I read your posts, it drips with ‘lisp’. So, you’re either a woman or your a homosexual.

                “Not that there’s anything wrong with it.”

                • c u n d gulag

                  Well, sorry if this affects your little fantasy life, where you’re some sort of macho, uber-hetero, tough-guy, and anyone who disagrees with you is some flaming gay pussy – but I’m neither.

                  But what IS indisputable, is that you’re a first-rate, classless, fucking “Moran!”

                  You have so little to say (and yet you keep opening-up your pie-hole), and nothing of value to offer the world, except hatred, ignorance, and stupidity.

                  I pity you, you poor thing – it must really suck to be you.

                • redwoods

                  God you’re disgusting, you need to do that in private.

                • c u n d gulag

                  Also, you beyond-ignorant MFer, it’s “you’re,” not “your.”
                  How stupid are you that you got it (shockingly) right in the first part of “your” ignorant sentence, but not the last?

                  Horrible…Bob – “you’re” a really fucking stupid motherfucker.
                  And “your” f*cking mother probably wishes that birth control and abortion were safe and legal back around the time “your” Daddy, whoever that may be, got that special look in his eye.

                  What an arse!

          • redwoods

            I like how Boob resolutely pretends Spud did not answer his fapping in public question, because he has no idea what said answer means.

            • DrDick

              When has Boob ever understood anything?

        • c u n d gulag

          Oh, using a “t” instead of a “d!”

          What a wit!

          The only question is, are you a half, a nit, or a dim, one?

          And it’s not an amendment to The Constitution, you arse, it’s PART of it – Article 1, Section 8, Clause 3.

          It’s the “Commerce Clause.”

          You really should be paying the rest of the commenter here for the education we’re giving you.

          You might sue your school district, or your parents (‘f u wer hom skoold), for the lack of education you received.

          Then you could send us the money!

          I ask you again, in your circle of friends – if you have any – is displaying your ignorance some red badge of courage?

          Do they give you merit badges for demonstrating stupidity?
          If so, you must have a chestful of fruit salad that would shame a 4-star General!

          • DrDick

            You really should be paying the rest of the commenter here for the education we’re giving you.

            I think all of us who are academics (or our universities) should sue Boob for theft of services, since he has not paid tuition for that education.

            • Njorl

              I think two minutes of testimony would show that Bob hasn’t learned a thing.

        • gocart mozart

          Do you blow goats with that mouth Bob?

          • DrDick

            The goats of the world would have you know that they will have nothing to do with that filthy, depraved pervert. They are saving themselves for Mickey Kaus.

        • Tybalt

          I just wanted to point out that this response is in really f***ing awful taste and a shoot on sight policy for Bob here is probably in order by now.

  • Horoable…Bob

    The plantiff has made her argument based upon the constitution.

    Think you might have a comment that’s actually on topic if you can fit it in between your usual asshattery?

    • joe from Lowell

      Interjecting the phrase “cuz of the constitshun!” into your fingerpaint-drawn argument does not actually impose an obligation on those of us who understand it to take your scribbling seriously.

    • Anonymous

      If you file a lawsuit saying that every church must be split sown the middle because the first amendment requires a separation of church, then that argument is as much “based on the constitution” as this defense of free-riding. The constitution itself (not even an amendment!!!) gives authority for federal laws to regulate commerce. Medicine – drugs, and equipment, and paying for healthcare (or the illusion of health care when you pay for health care but then your insurance company finds a way to deny coverage when you actually get sick) are all commerce. So, there is a clear constitutional ability to regulate the healthcare industry. I’m not even getting to the spillover effects on business that make us less competitive in the global marketplace due to the drag on companies caused by healthcare.
      Ok, so your complaint is that no one should have to play by the laws that Congress enacted to regulate healthcare because everyone should have a right to not pay, get unpaid debts for medical care discharged in bankruptcy, and feel free, right? Well, that idea has also been explored by the courts. Growing wheat on your own land can effect the demand for wheat, and showing up in the emergency room or bankruptcy court can effect the health care system. So Congress has the authority to order you to pay into the system. You are part of our society, and we as a society, acting through the proper powers of Congress, have decided that you shouldn’t be left to die without access to emergency medical treatment and that we would like to fix the system so people stop dying due to lack of access to routine medical treatment. You have a lawful obligation to pay your fair share.

      • Davis X. Machina

        You have a lawful obligation to pay your fair share.

        I bet you could build and run a successful political party on the contrary of that statement….

        • DrDick

          They call themselves Libertarians around here.

      • Horoable…Bob

        So, if it emcompasses all commerce as you seem to belive without restriction including healthcare, how is it you can say that the government cannot outlaw abortion?

        Why, in you opinion, is healthcare the business of the government, but not abortion? Isn’t abortion healthcare?

        • Spud

          The two are not related. Bad analogy is the last refuge of a poor argument.

          Besides, there is no commercial benefit to doing so.

          The commerce clause would probably be used to justify protecting abortion rights

          Banning abortion would create greater strain on the economy (much like denying access to healthcare) and on governmental budgets for public assistance programs.

          Why, in you opinion, is healthcare the business of the government, but not abortion? Isn’t abortion healthcare?

          Actually now that I think about it, the government should be in the business of providing abortion, just like it does with healthcare.

          You are the one who doesn’t want either of them to be funded. You have touched upon the fact that both things actually go together and can be justified in the same way.

          Same can’t be said about your opposition.

        • Anonymous

          Our government can, and does regulate abortion. It can and does outlaw certain types of abortion. The thing about abortion is that an important right retained by the people (my right to control my body and have the first call on making medical choices for myself) is sooo strong that the extent that government can interfere with that right is limited. Now, there is a huge industry pushing for government to interfere with my rights in stupid, counterproductive, and hateful ways so the line is being drawn in a place I find outrageous, but the whole reason Texas and Virginia were debating rape-by-state power is because the government, even under our delightful constitution has the ability to regulate a LOT. I want abortion policy to be rationale and based on science and respect for the ability for women to make choices about their own bodies, and I think the current line should be moved towards respect for my rights to make choices in privacy with my doctor, but government does and should have a role in regulating abortion since it is a medical procedure.

        • Rarely Posts

          The plaintiff is not arguing that the ACA violates her rights under the due process clause. That claim would have made more doctrinal sense (though still be a complete loser, because the ACA is about healthcare financing), but the conservatives couldn’t bring themselves to rely on the due process clause. Instead they relied on the commerce clause, and that claim makes no logical or doctrinal sense.

          In short: you don’t know anything about constitutional law, do you? Do you even know what clause of the constitution the abortion cases involve? Do you realize that it is not the commerce clause? It isn’t.

        • Horrible…Bob

          The two are not related.

          Yes, they are. Maybe not the particular issues this plantiff is raising, but they are, indeed, both “healthcare”.

          So, what legal theory would you use to keep the government out of the business of legislating abortion laws, but allow them to legislate every other aspect of healthcare?

          • Scott Lemieux

            A federal ban on abortion would not exceed the commerce power. However, under well-established law it would violate the due process clause of the 5th Amendment. But…well, actually, it wasn’t even a nice try.

          • Rarely Posts

            If you want to have strong opinions about the constitutionality of statutes, it might help if you: (1) read the constitution and (2) read some of the relevant opinions written by the Supreme Court. These are widely available online, as are numerous secondary materials explaining them.

          • redwoods

            See, you think you’ve scored a point here, but you haven’t, all you’ve done is revealed how poor your knowledge of the law involved actually is. Unshockingly, you’re stupid, unsurprisingly, you think you’re brilliant. This is amusing, dance, you stupid tiny puppet, dance!

          • Spud

            Yes, they are. Maybe not the particular issues this plantiff is raising, but they are, indeed, both “healthcare”.

            Maybe not the particular issues or even the nature of both acts in any way shape or form.

            In both situations the government is actively facilitating the choice of medical treatment desired by the individual. There is no contradiction whatsoever.

            Having access to healthcare is not a personal choice. You either have it or you don’t. People don’t chose to be uninsured. It just happens.

            The only people who are limited by the ACA are the insurers and employers, not the actual patients.

            Whatever point you thought you were making was ill-conceived and rather silly.

      • What HoBo hears:

        Blah blah blah blah statism blah blah blah

  • SP

    I anal but I hear there are some on this blog. Is it legally significant that the person chosen as the lead plaintiff actually makes the case for the defense’s argument? Can they just dump her and choose a lead plaintiff not compromised by facts? Or is the lead plaintiff a symbolic thing where the plaintiff lawyers can just say “never mind what’s behind that curtain”?

    • SP

      IANAL. Fucking autocorrect.

      • rkd

        It’s Ok – we just thought it was another Santorum reference

        • West of the Cascades

          Without looking closely at the plaintiffs on the case or looking up the questions the Supreme Court is going to consider, it could be significant. For every case in federal court against the federal government, at least one plaintiff has to have “standing” – she must demonstrate that she was actually (not hypothetically) harmed, that the harm is traceable to the government action, and that a decision by the court could redress or remedy her harm.

          If Brown were the only individual plaintiff and the rest of the plaintiffs were states, it’s possible that states do not have standing to challenge the individual mandate (because, since it applies to individuals, there is no harm to states). Then the question is whether Brown has standing — it’s possible that this revelation could undermine some of her claims of harm. For example, if she alleged that she is harmed because she would suffer a financial hardship if forced to buy insurance while paying for her own medical care, it’s evident that her claim of financial hardship is overstated because she has NOT paid for her own medical care, but rather passed its cost onto the providers through the discharge in bankruptcy.

          I’d love to have someone who has been following the details of this case weigh in on this.

          Interestingly, the lead plaintiff does not need to have standing (as long as at least one other plaintiff does) — for example, there are some great decisions in the 9th Circuit where the lead plaintiff is an endangered species (such as “Mt. Graham Red Squirrel v. Yeutter” and “Marbled Murrelet v. Babbitt”).

          • Davis X. Machina

            Squirrels do have standing. It’s how they do that adorable thing where they hold the acorn in their little hands and go at it as if it were corn-on-the-cob.

            There’s tons of case law on this.

            And the tail helps, too.

            • Bill Murray

              I don’t think squirrels would have standing without the tail. This was covered in Spielberg v. Slappy and Skippy

              • Davis X. Machina

                Without the tail, they’re just chipmunks…

  • Pingback: A Bit on the Nose, Don’t You Think? « Gerry Canavan()

  • Minivet
  • Horrible…Bob

    Abortion is healthcare. I’ve seem just about every one here characterize it as such.

    So, why is abortion the only part of heathcare that is untouchable by the government?

    • Spud

      Bob, you are right.

      They BOTH should be funded by the government! I

      I don’t know where you got it in your head that the people who support ACA are also anti-choice?

    • Abortion should be free and covered by all insurance plans. The government should ensure this.

      • Horrible…Bob

        This just doesn’t fly, Erik.

        Roe is a restriction on government, overtunrning the existing laws against abortion by government.

        And yet, you contend that government has the power to legislate every other aspect of healthcare.

        If you have a real answer for this, I’d like to hear it.

        • Matt T.

          If you have a real answer for this, I’d like to hear it.

          No you don’t. You’ll just ignore it or spin it around or just respond with something totally unrelated but incredibly stupid. Seriously, no one believes you’re serious or sincere or able to do understand half the shit you rail about. Keep it up, though, I’m learning all kinds of things thanks to you idiocy.

        • c u n d gulag

          Were you Sarah Palin’s debate coach somewhere along the line?

          • Davis X. Machina

            No. He was Allen Stafford’s accountant, though.

            • Davis X. Machina

              ‘Stanford’. Elbow typing.

              • c u n d gulag

                I still knew who you meant. Elbow reading.

        • cheap wino

          Roe is a restriction on government, overtunrning the existing laws against abortion by government.

          Commenter self-identifies as stupid. Worthwhile discussion impossible, proceed with humorous mocking and then to ignore.

        • Rarely Posts

          Scott gave you an answer above. Notably, you haven’t (and won’t) respond to it.

        • Murc

          And yet, you contend that government has the power to legislate every other aspect of healthcare.

          Cite please. Nobody here contends this. There are regulations pertaining to things besides abortion that the courts wouldn’t allow the government to pass.

    • Loen

      Abortion is regulated by government. I absolutely support regulations requiring abortion providers to have proper certification, for instance. I’m totally fine with states and even the federal government mandating minimal standards of care.

      Certainly, the right to privacy puts some limits on how the government can regulate abortion – they can’t take away a patient’s choice to have one, for instance – but that’s not nearly the same thing as saying that the government cannot regulate this medical procedure just like any other.

      • Holden Pattern

        but that’s not nearly the same thing as saying that the government cannot regulate this medical procedure just like any other

        But wimmin-hatin’ gummint actually regulates this medical procedure UNLIKE ANY OTHER. Which is the problem.

    • Murc

      You know what, I’m going to take a crack at this, God help me.

      The Constitution is always read as being internally consistent with itself. This requires a certain amount of common sense, because otherwise the document would be unworkable.

      Example: the government has the right to draft us. It can forcibly haul us from our homes and make us go into deadly combat, and throw us in prison if we don’t cooperate. This would, in ordinary circumstances, by a gross violation of a whole host of Constitutional rights.

      But it isn’t, because the responsibility of the government, as enumerated in the Constitution, to provide for the common defense has been determined, by our courts and legislators, to carve out an exception to those rights. The two parts are read as consistent with each other even if they aren’t explicitly tied together.

      Even more hypothetical example: if we passed an amendment saying it was illegal to use the word “blue” on Mondays, that would appear to conflict with the 1st Amendment. But it wouldn’t, because EVEN THOUGH we wouldn’t change the actual text of the 1st Amendment, it would be assumed to now have a silent “… except for the word blue on Mondays, because that appears elsewhere in the document and is clearly an exception to this.”

      And, finally, to get to your alleged question… if Roe vs. Wade didn’t exist, the government would, indeed, have the power to ban abortions. And it often exercised this power, because it had it! But now there’s a 5th Amendment carveout for abortion, and since the Constitution is always read as being consistent with itself and people apply a certain amount of logic and common sense to it, and since explicit constitutional rights nearly always trump statutory regulation, that means they CAN’T.

      You could argue that Roe was wrong, of course, but that’s the current state of the law.

      I feel as though I’ve wasted my time, but maybe someone else will read this and find value in it.

      • DrDick

        There is also a possible First Amendment protection against a ban on abortion, as there is no general in the consensus on when life begins and the anti-abortion position is based on a narrow range of largely Christian theology, which is NOT supported by science or medicine, and thus would constitute state infringement on religious freedom.

    • DrDick

      No one here has ever argued that the government cannot regulate abortion, which it already does. Indeed most of us think the government should mandate insurance to cover all abortions. The issue as to why the government cannot ban abortion, which is what you really want to know, has to do with individual rights to privacy and control over their persons, as the equal protection clause (as Scott said earlier and you ignored).

      • Spud

        Casey v. Planned Parenthood comes out and says it can be regulated to a point where “it does not constitute a substantial burden to access to abortion”.

        Of course conservative states have stretched that point beyond any pretense of adhering to its intention.

      • ema

        Actually, I’ve never been clear on why the government can regulate this one particular medical procedure, and no other. How can practicing without a license be illegal except when it comes to termination?

        • DrDick

          I think the government can and does regulate a wide variety of medical procedures (though not nearly as egregiously arbitrarily as in this case), which is why we have medical malpractice laws, but I agree with your general point here.

  • joe from Lowell

    Whoops, above was me.

  • Hovde

    To be fair, I’m sure Brown believes that the law should be changed so that spongers like her can just be denied health care in the first place. And anyway, if that had been the law for a while, she would have had the money to pay for healthcare because it wouldn’t have gone to fix up those other deadbeats who got health care on the government dime.

  • Jsrls

    I hope she’s paying out-of-pocket to use our judicial system.

    • c u n d gulag

      WTF are you talking about?

  • dp

    Note that, instead of being “laughed out of court,” the court has granted what is, in modern times, an unprecedented expansion of oral argument time to make what they claim is a case.

    I know what the law is, but I don’t see this ending well.

  • David M. Nieporent

    Between this post and the ones on Landsburg, I’m beginning to think you don’t understand how insurance works. You apparently think insurance companies have printing pressess where they make their own money. (They keep them in the room with the golden egg laying goose and magical chocolate river.) Health insurance is not a way to avoid shifting one’s health care costs to other people; it’s a way to shift one’s health care costs to other people.

    • DrDick

      It is you wh has no idea how insurance works. It is not a way to shift routine costs, like birth control or blood pressure medicines, off on other people. Those are all directly covered in your premiums, along with a healthy percentage for the insurance company’s skim. There is some cost shifting for major expenses, like a heart attack, major surgery, a bad accident, or say childbirth. Even the average cost of those conditions, given the general demographic characteristics of the risk pool (people covered by the policy), is calculated in so that people who have no more of those than normal pay their own way over the course of their life.

    • DocAmazing

      Again you fail to get it, as though on purpose. Insurance is pooled costs. I pay, you pay, we all pay. The money is pooled; the insurer invests the money to increase the amount in the pot; the insurer, with its greater purchasing power and market clout, makes deals with a variety of healthcare providers and pharmaceutical companies for the best prices, unavailable to the uninsured. The executives of the insurance company then skim off as much as they feel they can get away with.

      Insurance is indeed about paying. Every day that you have insurance and you’re not in a hospital, you’re paying. Use your insurance, and you may find it cancelled–the insurer keeps the money you’ve already paid and finds a reason to terminate your policy.

      So far, you’re zero for two. Care to try again?

    • Njorl

      She has no health insurance. She incurs medical costs. She declares bankruptcy to avoid paying those costs. Cost is shifted to other people.

      Under the ACA:
      She will have insurance. She will pay premiums. If she incurs medical costs, they will be paid by the insurer. By using insurance rather than bankruptcy, there is a chance she may pay in more than she benefits, or receive more benefit than she pays for.

      Insurance spreads the cost from all to all. Bankruptcy spreads the cost from her to all, but not the other way.

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