The Devils Are in the Details

March 30th, 2010

By Tom Carter

I didn’t support the health care bill, and I think it’s bad law.  What makes bad law?  Ambiguity, excessive complexity, constitutional uncertainty, limited popular support, intense partisanship, difficulties in enforcement, and too much latitude for bureaucratic interpretation and implementation.  This law has all these problems in spades.

Every sentient American understands that we have a health care problem.  Costs are too high, and there are too many people who don’t have health insurance.  But the new law falls short of what was really needed.  It left out some provisions that are obviously needed (e.g., medical malpractice reform), included others that are questionable (e.g., a mandate to purchase insurance), based funding on smoke and mirrors to some extent, and required under-the-table deals in order to get it passed.

It was inevitable that the bill would include things many people didn’t want and exclude things some thought were in it.  It was too big, too partisan, and pushed too hard for enough attention to be given to the details.  Therein reside the devils.

Two of these details are highlighted in recent articles.

The New York Times reported that the requirement to provide almost immediate insurance coverage to all children with pre-existing conditions is in serious question.  This, despite President Obama trumpeting publicly that it would happen this year.  Lawyers for the insurance companies have been examining the law closely — probably in much greater detail than most of the members of Congress who voted for it.  They say that the law doesn’t require them to cover children with pre-existing conditions until 2014.  Until then, they say, if they don’t want to cover a child with a pre-existing condition, they can simply not write the policy.

Democrats, of course, are upset.  Representative Henry Waxman (D-Hollywood) said, “The concept that insurance companies would even seek to deny children coverage exemplifies why we fought for this reform.”  Imagine that — a business acting in it’s best interest to maximize profits and protect its shareholders.  This would be equivalent to demanding that GM sell a certain model car at below the cost of production.  Apparently, it doesn’t occur to Democrats that if they wanted something to happen, especially something that runs counter to free market principles, they should have written the law differently.

In The Washington Post, Kathleen Parker explained in detail that abortions will inevitably be paid for with taxpayer money under the new law.  Democrats have said that the Hyde Amendment, which prohibits federal funding for abortions, applies to the new law, making more restrictive language not necessary.  However, that’s only partially true.  The Hyde Amendment has to be attached each year to the Labor and Health and Human Services appropriations bill, and it applies only to those funds.  Will Congress vote for it each year in the future?  Who knows.  And will activities be funded outside those appropriations?  Almost certainly, especially Community Health Centers, to which the new law provides funds directly.

Representative Bart Stupak (D-MI), along with a few supporters, led the fight to get explicit language into the House bill to prohibit funding abortions, which is the only way the House managed to pass it.  The Senate bill, which was passed by the House and became law, didn’t include that restrictive language.  Stupak and friends claim they agreed to vote for the bill because President Obama promised to prohibit abortion funding with an executive order.  However, an executive order can’t do what they’ve claimed it will do.  It’s a bit hard to believe that members of Congress didn’t know enough about this particular detail to understand it.

Personally, I don’t think either of these issues are earth-shaking.  Uninsured children with pre-existing conditions will be insured soon — their parents will be forced to contract for the insurance, and insurance companies will be forced to sell the policies.  In the meantime, these children will still receive medical care through emergency room visits, Medicaid, and other means.  Abortions, which are legal medical procedures, will most likely be paid for by taxpayer dollars in one way or another, directly or indirectly.  What’s the difference between federal funds being spent for that purpose and the many other purposes taxpayers disagree with?

But that’s just my opinion.  There are many Americans who feel very strongly about both issues, and they’ll continue to object.

How many other devils will be uncovered in the details of this massive law?  Will the mandate to purchase health insurance be ruled unconstitutional, undermining  many other parts of the bill?  Maybe.  Will Congress wimp out and refuse to reduce Medicare reimbursements in the future, wiping out a big chunk of funding for the new law?  Maybe.  There are more devils in there; we just don’t know yet where they are, how mean they are, and what damage they will do.


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9 Responses to “The Devils Are in the Details”



  1. Brianna |

    “Apparently, it doesn’t occur to Democrats that if they wanted something to happen, especially something that runs counter to free market principles, they should have written the law differently.”

    “But we need to vote for the health care bill so you can find out what’s in it” – Pelosi

    Well, you [Dems] voted for it. And now you’re finding out what’s in it. It’s a little late to whine about it.


  2. Lisa |

    Shivers went down my spine when the devilish bill was passed and Hugo Chavez and Fidel Castro both congratulated Obama and the USA for finally passing a bill that will provide a system of health care like the one they have that works so well in their respective countries. Who cares if the majority of the American people like the bill? Hugo and Fidel do and I guess that is what counts with this president and congress.


  3. Tom |

    At the end, the Democrats were desperately trying to pass a health care bill, any health care bill, just to chalk it up in the win column. It’s probably fair to say that many of those who voted for the bill had an imperfect understanding of what was in it. They’re going to continue being surprised by the devils (or gems, if you want to change the imagery) that pop up as time goes on.

    It’s going to get more interesting as the bureaucrats translate their understanding of what the bill means into specific rules and procedures to implement it. I expect all of us are in for some surprises.

    The whining is only going to get worse….


  4. Tom |

    Lisa, I can only imagine that a few Democrats in Congress got the same shivers. In addition to the special deals, there was a whole lot of arm-twisting and threatening to get some of those votes, and at least a few didn’t want to do it. Those guys are going to have to face their constituents and explain why they’re on the same side as Chavez and Castro.


  5. Nancy |

    At last someone has mentioned “tort reform” as something that should be included in any health care bill. Since a majority of Congress are lawyers, I suppose that is “pie in the sky” wishing, but medical liability suits certainly contribute to the high cost of medicine.


  6. Tom |

    You’re exactly right, Nancy. It’s unlikely that the Democrats will ever support tort reform, either for medical malpractice or more comprehensively. Trial lawyers make huge contributions to Democratic politicians, and cash is more important to most politicians (in both parties) than principle.

    So, if you follow the money, it goes from big settlements or verdicts in malpractice lawsuits into the pockets of lawyers, and they give chunks of it to politicians to guarantee that they can keep getting it. That means part of the high cost of medical care is used to fill politicians’ coffers.


  7. d |

    What’s the difference in mandated auto insurance and mandated health insurance? We already are forced,by law,to purchase auto insurance,which some cannot afford. I guess,to answer my own question,the difference is,we can choose to not own or drive a car,but we can’t choose to have a body,or pre-existing children’s bodies. I don’t like forced purchase of insurance,especially since all the illegals will get free coverage,while we struggle to pay for ours. We do need healthcare reform,but I fear,even as a Democrat,that this one is a wicked web,they weaved.


  8. Brianna |

    Also, the mandates come from the state level, not the federal, which means that constitutional rights do not come into play in the same way that they do for this health insurance mandate. For example, New Jeresy has one of the highest car insurance rates in the nation, because they require people to purchase no-fault insurance. It makes life easier on the courts (they don’t have to figure out who did what) but harder on the citizen (insurance is literally thousands of dollars a year). Contrast that to my liability insurance in IL, which is about $600. Finally, liability only really comes into play if you actually DO cause damage to someone else’s vehicle. As in, IT IS YOUR FAULT. It is NOT my fault that some people have pre-existing conditions. I feel sorry for them, but making me buy into an insurance pool because they need help is not quite on the same level as making me buy liability car insurance because if I cause an accident, I should make sure I can cover the damages.

    The worst thing about the mandate is that it is literally unenforceable; it is built right into the law that the IRS will not be able to use the law to make you buy the insurance or pay the fine. Which means that people won’t do it. Which means that the insurance companies will get screwed as people who don’t have insurance come down with cancer, join a health insurance company who is not allowed to turn them down, send them a whopping big bill, then quit their policy. I predict that the current mess will eventually end with a single-payer system within 10-15 years at the outside.


  9. Tom |

    I agree with Brianna. Registering a car and having a drivers license are privileges granted by states, based on meeting certain qualifications and following certain rules. One of the requirements relates to insurance, and that’s perfectly legal and isn’t a constitutional issue.

    As noted, the federal government operates, in theory at least, on the basis of limited powers, with all other powers vested in the states (Tenth Amendment). There’s no apparently logical way that the federal government could require all citizens to buy health insurance. However, defense of the rule in court would probably rely on the Commerce Clause, and things could get weird.

    Will the individual mandate be ruled unconstitutional in some future case? Common sense says yes; history and precedent say probably not, even with the current conservative-leaning Supreme Court. Never forget Wickard v. Filburn (1942), a very strange decision:

    A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.

    The Supreme Court, interpreting the United States Constitution’s Commerce Clause (which permits the United States Congress to “regulate Commerce . . . among the several States”) decided that, because Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.


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