Kicking Ass and Taking Names.

We're a step ahead of that small-time rag, the Wall Street Journal, with our insight and analysis regarding preexisting condition limitations.

I digress (already).

A small digression from reading the bill, here. Obama has spoken repeatedly, most recently today at a town hall meeting in New Hampshire, about "his plan." However, no such plan has been shown to the public. To date, we've only seen the House plan. That's the one I'm wading through on this rainy afternoon. So, (and here go the emails to, everything he says about "his" health care plan is totally unverifiable. No one's seen this plan. It could say we all get free healthcare all the time. It could say no one gets healthcare ever. It could say you only get healthcare if your name starts with the letter N. No one knows because no one's seen it. It may not exist. No matter which way you look at it, President Obama factually cannot have a factual discussion about "his" plan, because no one has seen it and therefore no one can refute his (ever-changing) assertions. Discussion about the House bill is necessary and important. Everyone can read the text of that bill, and anything that gets said about it—one way or another—is verifiable, and can be examined, refuted, or supported. Discussion about a hypothetical Obama plan is moot until he presents this mythical bill to the public for them to read and study.*

*Personally, I can't wait to see this puppy. He said today it was just like the insurance plan Senate and House members are currently on.**

**Unrelated, but funny. When asked about private insurance's ability to compete with the public option today at the NH town hall, he pointed to the success of FedEx and UPS against the US Postal Service. So the public option is as efficient and effective as the USPS? Where do I sign up?


A qualified health benefits plan may not impose any pre-existing condition exclusion (as defined in section 2701(b)(1)(A) of the Public Health Service Act) or otherwise impose any limit or condition on the coverage under the plan with respect to an individual or dependent based on any health status-related factors (as defined in section 2791(d)(9) of the Public Health Service Act) in relation to the individual or dependent.

America's Affordable Health Choices Act of 2009 (H.R. 3200), §111, 111th Cong. (2009), available at, p. 19-20.

This provision prevents any health insurer from denying coverage to preexisting conditions. Sounds great. However, it, like much of this bill, creates a fundamental unfairness, and threatens to end private insurance.
Let’s say I’m uninsured. I was uninsured for the better part of last year, so I know how the thought process goes. So I’m uninsured, and I participate in dangerous activities. Let’s say that I really love the Roller Derby. Love it. So much fun. Now, I’m uninsured. And during my bout this week, I have a gnarly fall and tear my ACL. ACL surgery is not cheap. I have no insurance. Under this plan, poof! I get the surgery covered. Nevermind that I didn’t have insurance before, and nevermind that I can drop it (I’ll get to this in a second) immediately after my treatment is done. I get free healthcare! Woo! Now here’s my question: how does this work, money-wise? I just got a whole lot of free healthcare. Did the private insurance company pay for that? Nope. The people who paid for it are all those people who’ve been paying health insurance for several (probably healthy) months or years. In other words, YOU just paid for it.
Now, when I say “drop it,” here’s what I mean. Let’s assume, arguendo, that the government option healthcare doesn’t finance major surgeries, or doesn’t provide as high a standard of care for such surgeries. Under this plan, I can still get a private insurance plan. So that’s what I do. I get my private insurance plan before I go through with ACL surgery because I want to make sure I have access to the best doctors, etcetera, and a higher premium is okay by me for a little while, since ACL surgery is so important. However, after I am done with the surgery, there is nothing requiring me to stay with the private plan I got for the surgery. I’m going to drop that plan and go back to either being a) uninsured; or b) on the public option, if I’m required to do so. This is one of the many ways in which the public option will choke out private health care. If private insurers can’t turn you down for pre-existing conditions, you’ll switch to them for big (read: expensive) health problems and away from them for day to day routine healthcare.
A brief explanation of how insurance works, as a business, may be applicable here. I’m sure most people already get this, but it bears repeating. The way an insurance company works is entirely based on risk. That’s what insurance is—it’s protection, for you, against the risk of high medical bills. So I’m insured. And let’s say my insurance premiums are $50 per month. In year one, I only go to two doctors for routine visits. Each of those visits costs my insurer $200 (we’re ignoring my copay because it’s irrelevant to this discussion). So in year one, my insurer comes out with $200 that I gave it that it didn’t have to spend on my healthcare ($50 x 12 months=$600-($200 x 2 doctor visits)=$600-$400=$200). Let’s say the same goes for the next five years. So at this point, my insurer has $1,000 ($200 x 5 years=$1000) of my premiums in “profits.” (Plus interest, but that’s irrelevant.) Now let’s say in year six that I tear my ACL, to stick with this example. Let’s say that ACL surgery is $1000. The amount I have already paid offsets the amount of this big procedure. Even if the surgery is much more expensive than $1000 (which it is), the insurance company still has some of my money to offset the large bill. However, if I hadn’t been paying the insurance company premiums for all those healthy years and I just jumped in after I knew I was going to have big medical bills, the insurance company would have had almost nothing from which to pay my expensive surgery bills and would have to tackle the whole thing out of their checkbook. Insurance companies are not charities (as the left loves to remind us), and they’re not going to keep doing that indefinitely out of the goodness of their hearts.
Once you look at this on a macro level, it becomes even clearer. My insurance premiums don’t just pay for my procedures. The insurance company pools everyone’s premiums to pay for everyone’s bills.* On average, most people are healthy. Most people have years roughly like my years one through five, where they see the doctor a handful of times for minor complaints. Major procedures are rare, relatively speaking. So because healthy people carry insurance, insurance companies can afford to pay for procedures for their insured who aren’t healthy. However, if healthy people have a free, or substantially cheaper, government-option insurance plan they can use when they’re healthy, any rational decision maker will obviously opt for the cheaper plan. The main concern that will keep people with their private insurer is standard of care. However, if you can get a better insurance plan anytime you suffer a major illness or injury—in other words, if insurance companies are forced to pay for pre-existing conditions—you have no incentive to stay with the private insurance plan. So you won’t. And private insurance plans, at least with the system we have now, are not designed to operate for catastrophic-coverage only. They’re designed to cover patients all of the time. Forcing them to cover pre-existing conditions prevents them from working. And that’s one of the many reasons they’re going to die out under this plan.
*Yes, I know I am way oversimplifying this. But it’s a blog, not a textbook. Deal with it.

Frolic and Detour.

    I find myself with a little spare time and a lot of interest. Specifically, I'm interested in HR 3200, the Healthcare Bill being extensively debated in town halls across the country. I think that the only way to make a valid argument for or against anything is to be informed. So I'm informing myself. And hopefully, in the process, informing you. I'm going to wade through this mother, and hopefully we'll all come out with a much better understanding of what it is we're facing, and why and how we should oppose (or support, let's be fair) this plan.

    We have the comments section for a reason, so raise questions or disagree or whatever, and we'll exercise our first amendment rights (I'm not Nancy Pelosi—I let you do that here, regardless of whether you're wearing Brooks Brothers or not) and make an informed choice about health care in America.

Recession -->Secession

Liberals are extremely fired up about Rick Perry's statements that it was possible for Texas to secede from the Union. Many are calling for his resignation. Others are at least hoping for censure, and writing him off as a fringe extremist. The thing is, I don't disagree with liberals on one point: this is a major moment, and it's one we should all heed. I just disagree with them on why.

The first, and most obvious thing, is the statement itself. While what Rick Perry said was nowhere near as controversial as dems paint it to be (of course Texas can secede--any state can secede. That's just a fact.), it's still pretty damn major that the governor of a state is talking secession in public forums. Not only was this a public forum, it was a massive protest against the new government's taxation policies. A protest that the government has point-blank refused to heed. Listen to your constituents, Barack. There's a lot of us who disagree with you. And look what ignoring disgruntled Americans did for the rep of the last president.

The second is the media and government (read: leftist) response to the statement: sheer hysteria. They're calling the protesters fringe extremists, and Perry dangerous. They're discrediting the right at every opportunity, rather than acknowledging that there is a fair amount of disagreement with the direction our nation is being taken. Again, this was a major blunder made by the democrats' favorite president, George W Bush. Also, I think it's really cute that the same exact people who screamed and cried about First Amendment rights for the last eight years are totally cool doing the exact same thing now that they're in power. Way to hold to your "convictions."

Soccer Moms and other right wing extremists.

I'm posting a lot today, given that I haven't posted in, oh, six months or so. It takes a long time to make a radiation-safe bomb shelter, ok? I'm just trying to get my subversive advocacy in now, before Barack reactivates the Alien & Sedition Acts.

Anyway, I wanted to call your collective attention to this. Kiss the First Amendment goodbye. And probably the Fourth, too. And some other major constitutional privileges.

Con law in the news: This is my jam.

On the way to work, I was listening to Walton & Johnson (they're amazing, and if you're not listening to them, you should be), and they were talking about new bills garnering the support of state governors. Apparently, these are being introduced in several state legislatures (I'm supposed to be really working, so I can't look them all up right now, but I know Oklahoma, Texas, and Tennessee are all included). They are basic declarations that the state reaffirms the validity of the Tenth Amendment and plans to enforce it. For those of you who didn't waste three years in law school constitutional law classes, this is the text of the Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Basically, then, the states that are reaffirming this are saying that unless the Constitution explicitly gives the federal government the right to do whatever it is that the federal government is doing (you know, like adopting communism as our economic format), the states can IGNORE it. How beautiful is that? This policy, called nullification, was popular around the time of Andrew Jackson. Wikipedia (noted legal authority) explains:

Nullification is a legal theory that a U.S. State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory is based on a view that the sovereign States formed the Union, and as creators of the compact hold final authority regarding the limits of the power of the central government. Under this, the compact theory, the States and not the Federal Bench are the ultimate interpreters of the extent of the national Government's power. A more extreme assertion of state sovereignty than nullification is the related action of secession, by which a state terminates its political affiliation with the Union.

This theory lost steam when the South took it a step farther and actually seceded from the Union. But it's apparently poised for a comeback. And I am ALL FOR IT.

A caveat: Since I've been trained to write legal stuff, I have to present the counterargument to all this, which is pretty major. Even if we're saying that the federal government has to have the express power to do something, the Constitution gives the feds some major latitude in the Necessary and Proper Clause. According to that,

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Pretty much, it says Congress can do whatever it needs (read: wants) in order to achieve something it's expressly allowed to do (like tax, go to war, etcetera--read Article I for a full list). So as long as congress relates its action to an expressed power, it's fine. There are ways to get around it, but I've bored you enough with legal theory.

However, if you're bored, or crazy, or actually interested, below is a paper I wrote awhile back examining all this. I love this part of the constitution with all my libertarian heart, so I have way too much to say about it. Thanks for listening.

Reconciling Unenumerated Rights