SCOTUS Healthcare Made in Libertaria? Yet~10K% Tax:Talking Points

 From MG: In brief, libertarian attorneys actually scored 2 major victories on this one and the result is 2 programs–a rationalization of insurance companies wanted but could not do becauise of the government’s own idiotic anti-trust laws (I worked with them on these issues in the 80’s)…and a streamlined if still problematic Medicaid originally based on some Lib-inspired private co-ops that Libertarians can now call upon to voluntarize ( and adapt the arguments to non-US countries) and that states can at least choose or no …What follows is some thinkpiece background: use whatever talking point helps to move on. Check out that calculator link above–Thanks for the great work, LI contact teams!

OK, so I ‘ve read this decision (unlike many commentators of the last few hours!) …[as per the cause of reading measures I’ve championed along with  Harry Browne ( ) and with my original Florida Full Slate team in 2001 (  See and also )  which has in part morphed in     whose users this helps as an info-support site    …]

Some talking points for LI contact teams to start or continue dialogue.

What’s going on? Society with a little love from Lib reformers  is now stumbling in this libertarian direction–A health system…

  1. With voluntarily funded service support non-profits: Medicaid-type trusts on core items for all, including state-based options
  2. Health co-ops and companies galore funding ahead on assumption of greater longevity (Morbidity rises with life extension for now)
  3. Focus on encouraging patient ‘ownership’ & pro-action: Low cost technology, natural self-help, and consumer autonomy and info

This is basically our libertarian reform public services model…like voluntarily funded public libraries surrounded by many bookstores and free speech/free  book co-ops/e-libraries vs. one big censored library people soon hate…What’s so hard about this? This would accelerate low cost gizmos that cure everything as Dr. McCoy uses in Star Trek, given away free with your order at McDonald’s or your bank account. We did that with calculators and computers when Coercive Government got out of the way (mostly, such as rules forbidding you to add devices to your monopoly telephone, and a deranged 1972 plan for one big computer utility that would by 2040 have ‘regulated as a preciuous resource’  a then eye-popping and now soon-to-be-laughable 1 TT national capacity–which you now have on your 2012  stand-alone computer)… right?

Libertarian-interest discussion and briefs in the health care decision focused on seeking to re-affirm non-coercive contracts and protect federalism, but there were other features–some of Libertarian interest–to keep in mind in understanding the sprawling  SCOTUS  decisions:

  1. Obama’s original program was based on libertarian-management style medical co-ops…and not as revolutionary as claimed. ( )  Obamacare basically tidied up the common law accommodation aspects of insurance companies, and put Medicaid on a tidier basis as well…with several overreach items by Congress that were correctly seen as a play to expand Federal power and that SCOTUS rejected based on the libertarian (and a good thing, as no legalist was raising the issue properly) briefs. It aimed to extend and rationalize federal coverage–whose tedious sign-up process and contradictory policies was the real major reaason people fell through the cracks– and plug up favoritist  regulatory exemptions and allow consensus on universal coverage that insurance companies agreed on but could not make happen due to anti-trust. The error was in trying to impose co-op concepts coercively and additional monkeying about with health care insurance regulation to satisfy health monopoly proponents AND opening the door to mandated purchases that would subsidize incompetent insurers–and underlying problems of local medical monopolies and anti-community hospitals/anti-cross  state insuranbce purchases and  other regulations remain ignored; the good part was using the model to rationalize and cost-cut federal care, encourage local/state options, and restore common law options such as universal coverage. (In the 80’s I led colloquia with insurance leaders who agreed they really didn;’t need pre-existing condition and other limitations if they became general practice–and were ready to do it on a voluntary basis on  the extreme left in Congress decided to subsidize them!) Let’s encourage more of these autonomous co-ops and removing laws against them as the standard. Meanwhile LI teams continue working to persuade states to allow posting of medical price informations so consumers are back in play.(This is beoming its own movement, and many thanks to Jonathan Harkness  who started the calling as an LIO supporter in 1992 in our first test program: GOOGLE )
  2. The mandate is actually a  tax that is  (at least quasi-) voluntary (no real punitive sanctions; critics saw a purchase ‘choice’ enforced by a tax; SCOTUS saw a tax one could avoid with a purchase choice ) and effectively offers people some choice of programs–which in other areas e.g. Social Security or many other programs would be viewed as a massive Libertarian victory (You’re taxed but can choose the provider? Imperfect but a step forward in most areas. Let’s make the tax voluntary then?) The danger of course is the ‘mandate’ really becomes a mandate. ( ) There is a concern that this may also inflate provider prices, as they raise prices to take the money available as happened with student loans and colleges in the US…and one may fear a stampede of jacked-up to ~7% income cap plans in a bonanza for insurers…and even as the premium becomes a large Kemp-type tax on the worker through sudden loss of benefits  (i.e. as suddenly one goes from $0 to ~$100 monthly payments i.e. -a  rounded 10,000% marginal Kemp tax according to the Kaiser calculator above–not necessarily unreasonable, but people will game around it) for those emerging from poverty, many might be staying in low pay jobs or bargaining for untaxed compensation to be fully subsidized while using more savings-based lifestyles e.g. many college educated  low-wage security guard-style jobs sudenly devotees of  home gardens, IRA’s and low-money down fixer-uppers to maintain an educated lifestyle along with exercising their creative ability in volunteering… and getting compensated with flex-time and other invisible goodies…or e.g.  oldsters agitating for dental extension and converting otiose and less-coverage Medicare to the streamlined Cadillac Medicaid.
  3. SCOTUS  basically kicked a lot of this down the road while blessing state variations…it will see what will be argued on state autonomy later as many cases are in the pipeline–because the federal health aid was not moved entirely to the federal government but left as a joint state effort and many are objecting it will bankrupt the state programs (It won’t as the court found, 7-2 that this is basically a new program of expansion sttaes need not use at this point; but it is reported as cheaper to the states), Obamacare continues to be up in the air in many areas. If state care exists, rationalized programs like Vermont that the law encourages ( and also )  and don’t need the law to function better–say users–than much of the law are very interesting in that they cover a 1 mm community so very scalable–libertarians using constitutional/devolution strategies might thus envision 310 local programs like these controlled locally and then moved into voluntary/non-monopoly/non-tax endowments not run by the government but the users …and the  Federal government is out of the situation completely.

SCOTUS has re-interpreted a mandate and to some (it was run through the tax committees, after all) surprisingly upheld it as what even leftist commentators on MSNBC are defending as a voluntary funding tax. This may be a chink to drive an APC through in future Libertarian-interest strategies. (Note it seems Obama did not argue for it, having initailly opposed the concept generated by the GOP extreme faith-based and anti-choice right to make free enterprise ‘responsible’ in Romney’s words).

As the below article on thoughtful and enetrgetic Lib legal approaches champion R. Barnett on the subject indicates, he has done wonders in re-introducing the concept that coercive contracts and regulation non-action  in public affairs are inherently an oxymoron in law and fundamentally wrong into the discussion…In the end the whole court gave it considerable credence when a few months ago even sympathetic legalists scoffed at the concept. In the end, 5  justices agreed  that regulating non-commerce was incorrect (though they shifted to the tax theory as base of that part of the program) …For many LI and libertarian activists, that is the real victory and I encourage continued interest in this effort and line of  discussion.

The more public officials and the public hear this line of discussion, the more it will become public policy bit by bit.  Barnett–and we–are the small guy with hands tied behind his back  who went 9 rounds with Ali to cheers and finally not a KO but points draw. Ali’s in trouble, people.

We need people like Randy Barnett in every US State and country, and owe him some thanks–and hope that he not stop now. I hope LI will continue to serve to highlight, put in perspective  and encourage such good work.



See also the pellucid work of R. Barnett, a libertarian legal thinker who filed briefs and is credited with reversing thinkingfrom the originally dismissve “Constitutional? Not THAT argument again!” of most legalists. Note the ignoramus who thiks it’s all made on the fly from whole cloth…that is the type of small-context, reactive perspective that is the problem.

See also his: 

“…WASHINGTON — When Congress passed legislation requiring nearly all Americans to obtain health insurance, Randy E. Barnett, a passionate libertarian who teaches law at Georgetown, argued that the bill was unconstitutional. Many of his colleagues, on both the left and the right, dismissed the idea as ridiculous — and still do.


But over the past two years, through his prolific writings, speaking engagements and television appearances, Professor Barnett has helped drive the question of the health care law’s constitutionality from the fringes of academia into the mainstream of American legal debate and right onto the agenda of the United States Supreme Court.

“He’s gotten an amazing amount of attention for an argument that he created out of whole cloth,” said one of his many critics, Douglas Laycock, a professor at the University of Virginia Law School. “Under existing case law this is a very easy case; this is obviously constitutional. I think he’s going to lose eight to one.”

On Monday, as the court began three days of arguments, questioning by the nine justices suggested they were ready to review the law now rather than wait until it has fully kicked in. That lays the groundwork for arguments for the challenge championed by Professor Barnett: that Congress’s power to set rules for commerce does not extend to regulating “inactivity,” like choosing not to be insured.

Professor Barnett, who watched Monday from the spectator seats, was not the first to raise the constitutional critique of the health law, but more than any other legal academic, he is associated with it. At 60, he is a fast-talking former Chicago prosecutor who decided to become a lawyer when he was in elementary school, while watching “The Defenders,” a 1960s television drama.

He is a fierce advocate of economic freedom who is accustomed to being a legal underdog. In 2004, in his first (and, he says, probably his last) appearance before the Supreme Court, he argued that Congress could not criminalize the production of home-grown marijuana for personal medical use. There again, critics said he would lose 8 to 1. He did lose, but took satisfaction in the actual vote, 6 to 3.

On Friday evening, after a busy day of press interviews, a moot court hearing and a presentation at the Cato Institute, a libertarian research institution, Professor Barnett sipped a Diet Mountain Dew in his Dupont Circle row house here. If the court strikes down President Obama’s health care law, he was asked, will he have an “I told you so” moment?

“I don’t call it that,” he insisted. “But whatever you want to call it, it’s already happened. When the Supreme Court grants six hours of oral arguments over three days, I don’t have to win that case to know that my challenge is serious.”

The challenge to the individual mandate, the provision requiring nearly all Americans to obtain health insurance, has been raised before; David B. Rivkin Jr. and Lee A. Casey, both lawyers who served in Republican administrations, made the Commerce Clause critique in a Wall Street Journal opinion article in 1993, when Congress was debating President Bill Clinton’s health care initiative, and again in the fall of 2009.

Their argument prompted an online debate. Professor Barnett joined, remembering how another law professor “wrote a very snarky, no-serious-person-would-think-there’s-a-serious-challenge-here” post. He added, “That just sort of got my blood flowing.

Amid the rise of the Tea Party movement, some Republican lawmakers argued during the legislative debate that the mandate was unconstitutional. With his academic credentials, Professor Barnett helped bolster the mandate’s conservative critics.

“What Randy has done is provide an intellectual and legal framework for explaining why this is not just unpopular, but also unconstitutional,” said Eugene Volokh, a law professor at the University of California, Los Angeles, and founder of a legal blog to which Professor Barnett sometimes contributes. “You can accept or not that framework, but it is a framework that is out there that is being taken seriously in part because it was proposed by a serious guy.”…”

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