BUT THEY CAN'T DO THAT!

I posted this picture on my Facebook page this week in response to the Supreme Court Obamacare ruling and specifically to Chief Justice Robert's opinion.  Following a very heated debate in this nation on the constitutionality of the health care reform law and intense debate in court, we have awaken to a world where we must face the fact that for all parties in this debate, we've been both right and wrong at the same time.

Congress and President Obama were right and wrong, often simultaneously since they tended to speak from both sides of their mouth.  I said it at the time, that no matter how you looked at their tax penalty, it was simply a tax.  Despite all the rhetoric from the president that he would not raise taxes on anyone making less than $250,000, this was a tax.  Penalizing inactivity is the converse of rewarding activity.  All they had to do was raise rates across the board for all and then offer a deduction or credit to those who had health insurance.  The end result is the same; it's just a different process to achieve that end.

The Supreme Court got it both right and wrong.  Despite my argument, the Chief Justice was wrong in ruling that the mandate was allowable as a tax.  It would have been if they had wrote it in some way similar to what I wrote.  They have the power to give preferential tax treatment to health insurance consumers; but only by raising the income tax for all and offering a deduction or credit to some.  That is most definitely not what the law does and no matter how the court twists and turns it, the law can't be read that way.

Even after the ruling, Obama and the Dems are running from the 'mandate as a tax' line as quickly as possible.  They point out that they voted for a penalty, not a tax.  But Congress did not have the authority to assess such a penalty and can only have their cake as a tax.  So either eat it or get rid of it and stop trying to shove it down our throats.  If I was in Congress, I would offer a bill to change the health care law's language to reflect the Court's opinion and read as a functional tax raise/deduction mechanism, then watch the supporters of Obamacare decide their fate.  Tax or penalty - which is it?

Robert's and the de facto majority at least did get it right when they found that the Commerce Clause was not broad enough to grant Congress the ability to regulate that which does not currently exist, even if it one day may exist.  To have allowed the law to stand under the Commerce Clause would have made possible for Congress to begin regulating entire markets that don't exist at this time, but that may exist in the future.

Under such a broad reading of the Commerce Clause, Time Travel could find itself under heavy regulation, even though it is scientifically impossible provided you don't consider trans-multiverse travel.  Congress in it's limited faculties could easily weigh down the potential for trans-dimensional travel in it's attempt to eliminate the still theoretically impossible trans-temporal trip.

And what about regulating non-living apparitions.  Say what you will, but I think we all long for the days like 1985 when Time Travel was a wide open field for Marty and the Doc and being a Ghostbuster was a legitimate capitalistic venture.  In fact, I believe it was the government regulator who caused all the trouble in New York City for Dr. Peter Venkman and his co-workers.  Maybe Mayor Bloomberg might one day ban astral projections in the city's eateries and hotels in his further attempts to kill the free market.

As for the picture above, as well as those who have said similar things, they are correct.  No founding father ever imagined such a thing as coercive commerce, apart from public goods (police, roads, gov't expenditures, etc), or taxing/penalizing such economic inactivity.

But we are quite wrong to believe that it's unconstitutional.  In fact, it's already been happening for decades.  Buy a house? You get a mortgage interest deduction.  Rent a home? Sorry, but no deduction.  Have a child? $1000 tax credit.  No children?  No tax credit.  Buy a Chevy Volt?  $7500 tax credit.  Buy a Chevy Suburban?  Not only no credit, but the more gas you buy the more taxes you are paying on that fuel.  Those are all either taxes or penalties on your choice of consumption and/ or lack of activity.

We're right to think it's wrong.  But we're wrong to think that argument matters at this point. The system is so bogged down in this nonsense that only a total reform of our tax system can fix it.  And that's a worthy reform - when government reforms itself to make it more efficient.  But government attempting to reform industry?  Katy bar the doors.

The truth is that we are right to be mad that the health care industry is dysfunctional and that so many fall through the cracks, but we're wrong to think that government planning can fix those structural problems.  Innovation and competition will always build something better if we just get out of the way.  A marketplace that can put into the hands of the poorest Americans, a $600 hand held computer that also serves as a phone, camera, video recorder, alarm clock, calendar and music playing device, something completely inconceivable in 1985 when Marty and the Doc traveled to the future year of 2015 - that type of marketplace can produce a health care system that works.  

Trying to regulate the Health Care Insurance today is like trying to regulate land-line telephones in 1985.  In the future, the type of all-compassing insurance plans of today will probably be as few and far between as land line phones are becoming today.  It's a fools game and I'm tired of feeling like we're all fools.  To my friends who want to help, I say, "Just stop!"  Help is on the way, if we would just get out of the way and let it pass.

Instead, we will attempt to coerce people into one-size fits all, minimum coverage plans rather than letting the consumer buy products that meet their specific needs.  Just watch a car insurance commercial and wonder how such regulation would help there.  

"I want to buy car insurance."

"Well you also need to have boat, home, and property insurance."

"I don't have any of those things and I don't need that."

"Well that doesn't matter.  You might one day."

"But I just need car insurance so I can drive to work.  I can't afford anymore than that."

"Look, I can't sell a car-only insurance plan.  The government says we must sell plans that cover everything -- hey, where you going?"

(somewhere off in the distance, one small gekko runs away)