Wednesday, March 28, 2012

Necessary and Proper (Wednesday LINKS)

I felt very "21st Century" yesterday as I downloaded the oral arguments from Dept of Health and Human Services v. Florida to my computer, put the file on my iPhone, and then listened to the day's proceedings on my way home from work.  All day I had ready about what a disaster it had been for the government and about 40 minutes it, I couldn't help but agree.  Justice Scalia played master of ceremonies and even with Justice Ginsberg spoon feeding the Solicitor General responses, the government floundered.

An early focus of the Court was the "necessary and proper" clause from Article 1, Section 8 of the U.S. Constitution:

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.

Those familiar with their Constitutional Law know that this clause is often referred to as the "Elastic Clause" and has been used (and abused) to vastly expand the powers of the federal government by way of Congress.

The Government's argument in favor of the individual mandate is based upon the Commerce Clause, which reads:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

In a nutshell, the Solicitor General argued that no one can remove themselves from the "health care" market, and, as such, regulating those who choose not to buy insurance is "necessary and proper" to regulate health care among the several States.  Most interesting to me was that the Government seemed to wholly abandon the argument that the individual mandate did not exist, but rather the choice not to buy insurance would be "taxed."  This may be due to the fact that both sides of the dispute wanted this decision to go forward now and in arguing that this law creates a "tax" would effectively prevent an actual dispute from arising until 2014, when the law is implemented.

It was probably a very bad idea to wade into complex matters of law in my morning blurb, but I was struck by the emphasis on "necessary and proper" during yesterday's arguments.  To paraphrase Justice Scalia, just because a law is necessary does not make it proper.  The federal government is one of enumerated powers and when it seeks to make law outside of those allowed it by the Constitution, that law is not "proper." 

Strategically, this is the best response to the Health Care Law.  An amicus brief filed with the Court noted that families in Maryland pay a 7% premium (approximate $1,000 per family) for uninsured participants in the health care market.  That is only one instance showing that some sort of Health Care Reform is "necessary."  But what the Court will decide, and its looking bad for the President on this mark, is whether such a law is properly issued from the Federal Government, at least in terms of requiring participation by all citizens.

Reading all of the dystopian fiction I can get my hands on nowadays, I thought of a world where the individual mandate is removed, pre-existing conditions were retained, CMS is expanded, and we continued the Emergency Medical Treatment Act...only without pain medication.  It is inhumane and much less efficient than an individual mandate, but would retain the punitive nature on the uninsured.  This would only be for those who are uninsured by choice, as the rest of the Health Care Act would cover those who have been unable to afford insurance.  This clearly would not be a good law and as tortured (literally) as it sounds, it would be better than the alternative of having involuntarily uninsured die preventable deaths due to pre-existing conditions that were not covered by insurers.

Even better, it would fit as both necessary and proper.


Howard County has its next School Superintendent -- Renee Foos.  It was a very interesting line of events as both Dr. Foos and the other candidates for the position, Dr. S. Dallas Dance, appeared to be selected almost simultaneously.  In a great bit of reporting, Kevin Rector and Sara Toth have determined that Dr. Dance accepted his offer to Baltimore County one hour before "Howard decided against him."  That sounds a lot like "you can't fire me, I quit" although it is hard to see who is doing what.  I will presume that Howard County was not interested in being left without a dance partner, but have also heard that this decision was made Monday night, well before any news would have crept out about Baltimore County's offer.  Either way, let none of this take away from the excitement of a new Superintendent with all of the new ideas that she brings to the table.  I think a placard should hang above every HCPSS Superintendent's desk: "Things are good here.  Don't screw it up."

It turns out that the viral fight video that has been flying through the interwebs from Long Reach high school depicts a 16 year old fighting a...40 year old, and getting the better of him with one punch.  This is one of those instances where the punishment has already been administered -- notorious shame.

It appears likely that the Council will be passing a County-wide fire tax on Thursday night.  The final amount of that fire tax is yet to be determined...but have no fear, Executive Ulman has no intention of raising any taxes...for non-hotels...on the east side of the County.

Featured Blog Post of the Day: Sarah is bobbing and weaving on her bicycle through town and is trying to make two-wheeled commuting a larger part of her life.  I've considered this myself, but can't seem to map out everything in my head, particularly when it comes to the highway interchanges.  This is probably just a crutch of my own making, but leave me and my crutch alone.

That's all for today.  I look forward to seeing a number of you at Leadership Howard County's Big Event this afternoon.  The subject is "Delivering Happiness", which seems like a great topic for a gorgeous, however slightly chilly, day like today.

Have a great Wednesday doing what you love!