State's Rights in the 21st Century

Re: State's Rights in the 21st Century

PostBy: brckwlt On: Mon Mar 22, 2010 9:12 pm

jpete wrote:But that is why you can't buy health insurance across state lines but you can with car insurance.


umm when i moved from maryland to pennsylvania i was forced to switch to a progressive auto policy from an agent in PA. They wouldnt let me keep maryland auto insurance when i moved to pa. so im not sure what you mean by that statement
brckwlt
 
Stove/Furnace Make: Axeman-Anderson
Stove/Furnace Model: Rebuilt 1953 AA-130

Re: State's Rights in the 21st Century

PostBy: mikeandgerry On: Mon Mar 22, 2010 9:16 pm

jpete wrote:The state lawsuits are a red herring. Just like in the Obama "natural born citizen" cases, you have to have "standing" to bring a lawsuit.

To have standing you have to show "unique harm", that is, you have to show how an individual is specifically harmed above all others.

Since the meat of this doesn't go into effect until 2014, and it'll take several years for a suit to reach SCOTUS, there isn't a prayer of getting this blown out as unconstitutional.


A state that, by Constitutional and federal law, holds the right to regulate insurance would be harmed by this bill, thus states will have standing and they can clearly show that they are harmed by the feds forcing the funding of this program on the states. The $800 Billion net CBO estimate won't cover 50% of the increase in costs.

Why is that a red herring?
mikeandgerry
 
Stoker Coal Boiler: Axeman-Anderson Anthratube 130-M

Re: State's Rights in the 21st Century

PostBy: Kenbod On: Tue Mar 23, 2010 12:13 am

Attempting to change or undo this through D.C. (Courts or a new Congress) is probably hopeless.

HOWEVER, the Constitution, at last resort, affords ultimate control to the States. Control that the States do not exercise. The States can by-pass D.C. and all courts, and all the clowns if they want.

HOW? 2/3 of the several States (ie:34) can bring forth a Constitutional Convention with the express purpose of proposing a Constitutional Amendment protecting and firmly establishing the appropriate role of Federal vs State power. Will it be easy to get the legislatures of the 38 States needed for ratification to agree? No, but even with the obvious whack job States voting "no," there will be 30 which will easily concur. Then the real debate begins. And then, for the first time in forever, DE and AK matter as much as CA and NY.

I have personally written to some of the State Attorneys General who said they'll sue. Sue? Sure, fine, go ahead and try. Good luck (really). But wouldn't you really prefer to really FIX the problem (at least for a few decades)?
Kenbod
 
Stove/Furnace Make: Van Wert Simplex Multitherm
Stove/Furnace Model: Keystoker Kaa-2


Re: State's Rights in the 21st Century

PostBy: pvolcko On: Tue Mar 23, 2010 3:43 am

jpete wrote:The state lawsuits are a red herring. Just like in the Obama "natural born citizen" cases, you have to have "standing" to bring a lawsuit.

To have standing you have to show "unique harm", that is, you have to show how an individual is specifically harmed above all others.

Since the meat of this doesn't go into effect until 2014, and it'll take several years for a suit to reach SCOTUS, there isn't a prayer of getting this blown out as unconstitutional.


I don't think uniqueness is a required attribute in all constitutional cases. If the government passed a law that banned all possession of science fiction literature, who would be the person with unique standing to challenge it? Just because the law is applied broadly across the population or the states doesn't mean that it poses a barrier to challenge on constitutional grounds.

Certainly it helps to have a unique case where the constitutional issue is brought into stark relief, particularly if the constitutional issue is murky absent the special case, but it doesn't stand to reason that there *must* be some particular aggrieved or impacted minority of the citizenry for standing to be found for a constitutional challenge in the courts.

Your pessimism on this is peculiar to me. Individuals on many sides of this mess have standing. Those who are forced to buy in under penalty of law as a consequence of being a citizen (unprecedented law and easily a non-trivial constitutional question). The "rich" who are funding the lions share of this program (at least on paper) have, I believe, valid basis for an equal protection claim, particularly given the low/non-existent benefit they receive. Medicare and SS arguably only pass constitutional muster because the tax to fund those programs are assessed on all earned income at a flat rate up to some ceiling amount, and all citizens become eligible for them at some point in their lives should they live to be old enough. The medicare and SS tax rate changes made in this bill may actually make SS and medicare unconstitutional due to the top loading of the revenue streams as a consequence of this law. Ideas to means test SS and Medicare also fly in the face of equal protection, potentially.

States have a possible case on the inequitable deals made on the special deals for medicaid funding for select states and granting certain banks in certain states exceptions under the school loan nationalization part of this law. States also have a case on restraint of trade. The feds can't create their own little preferred national policy pool, set the standards, control which eligible plans get let in, provide all kinds of subsidies, and leave the rest of policy providers to die a withering death due to restraint of interstate trade and unequal access to policy seekers. Unfunded medicaid mandates are a big part of this policy (and part of the reason why it came in as a supposed "deficit" cutter at the federal level), another potential area of legal challenge on federalism (10th amendment) and equal protection claims.

And no doubt there are many more questions of constitutionality buried in there as yet undiscovered.
pvolcko
 

Re: State's Rights in the 21st Century

PostBy: jpete On: Tue Mar 23, 2010 7:32 am

The person the would show unique harm would be the first person to get locked up for violating the new law. That's how these things go. You have to be able to show specific harm.

That's why none of the Obama citizenship cases went all the way. SCOTUS kicked them away but saying the person bringing the case wasn't personally harmed over the issue.
jpete
 
Hand Fed Coal Stove: Harman Mk II
Coal Size/Type: Stove, Nut, Pea
Other Heating: Dino juice

Re: State's Rights in the 21st Century

PostBy: jpete On: Tue Mar 23, 2010 7:37 am

brckwlt wrote:
jpete wrote:But that is why you can't buy health insurance across state lines but you can with car insurance.


umm when i moved from maryland to pennsylvania i was forced to switch to a progressive auto policy from an agent in PA. They wouldnt let me keep maryland auto insurance when i moved to pa. so im not sure what you mean by that statement

Right. Because where you live effects your rate. But you don't have to buy insurance from a company based in your state. That's the difference.

A health insurance company has to be based in the state.

You can buy auto insurance from E-surance which is based on the web. You can't do that with health insurance.
jpete
 
Hand Fed Coal Stove: Harman Mk II
Coal Size/Type: Stove, Nut, Pea
Other Heating: Dino juice

Re: State's Rights in the 21st Century

PostBy: SMITTY On: Tue Mar 23, 2010 10:19 am

MA just recently changed that one -- was many many decades before any insurance companies, except a handful, would even do business in MA. I had Allstate in CA ... and when I came back home, they said they could not offer me insurance in MA, as they did no business there due to strange regulations MA had in place.
SMITTY
 
Stoker Coal Boiler: Patriot Coal - custom built by Jim Dorsey
Hand Fed Coal Stove: Harman Mark III (not currently in use)
Coal Size/Type: Rice / Blaschak anthracite
Other Heating: Oil fired Burnham boiler

Re: State's Rights in the 21st Century

PostBy: pvolcko On: Tue Mar 23, 2010 10:49 am

jpete wrote:The person the would show unique harm would be the first person to get locked up for violating the new law. That's how these things go. You have to be able to show specific harm.

That's why none of the Obama citizenship cases went all the way. SCOTUS kicked them away but saying the person bringing the case wasn't personally harmed over the issue.


Ah okay, now I see what you were getting at. Yes, individuals will be hard pressed to bring suit until the 2014 provisions (where you're forced to buy in) kick into effect. There are some taxation/fee angles to be played individually before that point. There could be individual suit brought by someone who ends up denied medicare coverage on the basis of being kicked from her current doctor, being unable to find a primary locally that will treat or her pharmacy refusing medicare patient service. Not sure that would have much chance of going anywhere, probably depend on the level of difficulty the person could demonstrate in searching for a provider. States also have some claim before then due to unfunded medicaid mandates, the special deals some states and businesses got, etc.

But you are right, the real meaty constitutional cases won't have a lot of hope until 2014 provisions kick in.
pvolcko
 

Re: State's Rights in the 21st Century

PostBy: titleist1 On: Tue Mar 23, 2010 11:42 am

jpete wrote:Right. Because where you live effects your rate. But you don't have to buy insurance from a company based in your state. That's the difference.

A health insurance company has to be based in the state.

You can buy auto insurance from E-surance which is based on the web. You can't do that with health insurance.


Jeff, I am not sure your entirely correct there about being "based" in the state....you can buy health insurance from national companies and even from Ehealthinsurance.com, just like car insurance. They have to abide by the insurance reg's of the state whether it is health, car, home, life or disability insurance. I am not familiar with all the state regulatory hoops the companies must jump through, but I know do they look at each state separately to see if they want to sell health insurance there. As far as I know it is no different than a company like All State deciding not to sell homeowners insurance on Long Island but will sell car insurance there.

I shop the web for health insurance rates and more importantly which payors my wife's providers accept while deciding which plan to go with.
titleist1
 
Hot Air Coal Stoker Stove: Harman Mag Stoker (old style) one in basement, one in workshop
Hand Fed Coal Stove: Harman Mark III on standby for long power outages
Coal Size/Type: Rice/Anthracite; Nut/Anthracite

Re: State's Rights in the 21st Century

PostBy: jpete On: Tue Mar 23, 2010 12:35 pm

Umm, you may be correct. The 1945 McCarran Ferguson Act says that states may regulate insurance and the Feds keep their hands off for the most part.

I suppose if an insurance company wanted to comply with state regulations they could sell insurance where ever they wanted.

But the way most insurance companies structure their rates and plans, it makes buying out of state insurance mostly punative by using "in network" and "out of network" services.

What the Feds allow is collusion and price fixing. BC/BS in one state might be much cheaper in one state vs. another but most people won't join due to the out of network rate structure.

And, as happened here, if another company tries to set up shop, the dominant company simply buys the state regulator and proposes all kinds of onerous mandatory items and makes it impossible for the new company to compete.

Like the doctor in New York who offered basic unlimited office visits for $80/month. The state shut him down for selling insurance without a license.

None of this is about making insurance cheaper. It's about control of the population and who will make a profit from that.
jpete
 
Hand Fed Coal Stove: Harman Mk II
Coal Size/Type: Stove, Nut, Pea
Other Heating: Dino juice


cron