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Donald Trump, Revolutionary
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Within four hours of becoming president of the United States, Donald Trump signed an executive order intended to limit immediately the effects of the Patient Protection and Affordable Care Act (Obamacare) in ways that are revolutionary.

With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor’s administration. How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it?

Here is the back story.

When Obamacare went through Congress in 2010, all Democrats in Congress supported it and all congressional Republicans were opposed. The crux of their disagreement was the law’s command that everyone in the United States obtain and maintain health insurance — a command that has come to be known as “the individual mandate.”

Republicans argued that Congress was without the authority to compel people to enter the marketplace by purchasing a product — that such decisions should be freely made by individuals and that that freedom was protected from governmental interference by the Constitution. Democrats argued that the commerce clause of the Constitution, which permits Congress to regulate commerce among the states, also permits it to compel commercial activity on the part of individuals who make up a highly regulated component of interstate commerce.

To ensure compliance with the individual mandate, the law provided that the IRS would collect the fair market value of a bare-bones insurance policy from those who did not obtain and maintain one. The government would then take that money and purchase a health insurance policy for that individual who rejected the law’s command.

Though Congress did not call it a tax and the government’s lawyers uniformly and consistently denied in all courts where it was challenged that it was a tax and President Barack Obama rejected the idea that it was a tax and even the lawyers for the challengers denied it was a tax, a 5-4 majority in the Supreme Court characterized the money collected by the IRS from noncompliant individuals as a tax.

This is profoundly significant for constitutional purposes because though Congress cannot regulate anything it wants, Congress can tax anything it wants, as long as the tax falls equally on those in the class of people who are paying it.

This unheard-of characterization of a non-tax as a tax was necessary to salvage Obamacare before the high court because a different 5-4 majority in the same case ruled that the Republican congressional argument was essentially correct — that the commerce clause does not empower Congress to compel commercial activity.

All of this has been debated loud and long since the law was enacted in 2010, validated by the Supreme Court in 2012 and came into Trump’s crosshairs in the Republican presidential primaries and again in the general election campaign.
Trump argued that the government cannot compel commercial activity, even as part of a large regulatory scheme, because the Constitution protects everyone’s right to purchase a lawful good or not to purchase one. He also asserted that Obamacare does not make economic sense because its regulation of the practice of medicine and its administration of health insurance have resulted in a diminution of choices for consumers, which in turn has raised premiums, as well as deductibles, and chased primary care physicians from the marketplace. The Obama mantra that you could keep your doctor and your health insurance under Obamacare proved to be patently false, Trump argued.

When Trump promised that as president — on “day one” — he would begin to dismantle Obamacare, some Republicans, many members of the press and most Democrats laughed at him. They are laughing no longer because the first executive order he signed on Jan. 20 directed those in the federal government who enforce Obamacare to do so expecting that it will soon not exist.

He ordered that regulations already in place be enforced with a softer, more beneficent tone, and he ordered that no penalty, fine, setoff or tax be imposed by the IRS on any person or entity who is not complying with the individual mandate, because by the time taxes are due on April 15, the IRS will be without authority to impose or collect the non-tax tax, as the individual mandate will no longer exist. Why take money from people that will soon be returned?

Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government’s laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.

This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires. It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of Obamacare. It is utterly without precedent since Jefferson’s presidency.

Trump’s revolutionary act is a breeze of freedom on a sea of regulation. It recognizes something modern governments never admit — that they can be and have been wrong. It is exactly as Trump promised.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Obamacare 
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  1. With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor’s administration.

    This “domestic centerpiese” was simple graft. Bought and paid for by the health care racket. The Democrats were in a position to create a single payer system which was and is the only way to insure access and bring down the cost of health care. Those who imagine that access is available through emergency rooms should try it sometime. The for-profit health care racket is a much greater drain on the economy than single payer. And if single payer is Communism then the entire West with the exception of the U.S. has gone Communist. The Republicans now have the opportunity that the Democrats squandered. If Trump’s Republican Party can learn to govern on behalf of the American people they will be in power for a generation.

    Read More
    • Replies: @jtgw
    Single-payer only means that you are not financially responsible for your care (depending on what the single-payer system covers, of course). It doesn't ensure actual access to care, and indeed you find in single-payer systems that care has to be rationed and not everyone who needs it, gets it. This is aside from the fact that federal provision of healthcare, or mandating health insurance, is not constitutional, although these days what is or isn't in the Constitution doesn't seem to bother most politicians.
    , @Reg Cæsar

    ...a single payer system which was and is the only way to insure access and bring down the cost of health care.
     
    The only entity I'd trust as a "single payer" is the Vatican. But something tells me you wouldn't.

    And if single payer is Communism then the entire West with the exception of the U.S. has gone Communist.
     
    Oh, yeah?

    https://truecostblog.com/2009/08/09/countries-with-universal-healthcare-by-date/

    Somebody didn't tell the Dutch, the Danes, the Austrians, the Australians. the Swiss...

    Compare the relative diversity, especially at the inception dates given, of the single-payer and the non-single-payer countries.

    Oh, and note also the dates given for Japan and Germany, and who was in charge there at the time.
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  2. @WorkingClass

    With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor’s administration.
     
    This "domestic centerpiese" was simple graft. Bought and paid for by the health care racket. The Democrats were in a position to create a single payer system which was and is the only way to insure access and bring down the cost of health care. Those who imagine that access is available through emergency rooms should try it sometime. The for-profit health care racket is a much greater drain on the economy than single payer. And if single payer is Communism then the entire West with the exception of the U.S. has gone Communist. The Republicans now have the opportunity that the Democrats squandered. If Trump's Republican Party can learn to govern on behalf of the American people they will be in power for a generation.

    Single-payer only means that you are not financially responsible for your care (depending on what the single-payer system covers, of course). It doesn’t ensure actual access to care, and indeed you find in single-payer systems that care has to be rationed and not everyone who needs it, gets it. This is aside from the fact that federal provision of healthcare, or mandating health insurance, is not constitutional, although these days what is or isn’t in the Constitution doesn’t seem to bother most politicians.

    Read More
    • Replies: @WorkingClass
    If the government decided to expand medicare to cover everyone it would cover everyone. It would not cover every thing. I doesn't cover everything now.
  3. Right now, this minute, anyone in the United States can walk into any emergency room with an acute medical problem and get taken care of. They cannot be required to pay upfront, and cannot be denied care. This is the law. Any emergency department that fails to do this will be subject to fines and penalties and will not receive reimbursement for any Medicare or Medicaid patients.

    The name of the laws that mandates this are COBRA, which stands for Consolidated Omnibus Budget Reconciliation Act, and EMTALA, which stands for Emergency Medical Treatment And Labor Act.

    These two laws ensure healthcare for acute medical illness for everyone. You can look it up. They do not ensure satisfaction with that healthcare, however, emergency physicians are subject to malpractice law, and those laws apply to everyone. Malpractice law provides the safety net regarding quality. It is not perfect, but there it is. Universal healthcare in the United States of America, who would have thought?

    Read More
    • Replies: @WorkingClass

    Right now, this minute, anyone in the United States can walk into any emergency room with an acute medical problem and get taken care of.
     
    This is what you have been told and you believe it. But it is only partially true. I have a lot of experience with uninsured family and friends and emergency rooms. Anything I tell you will be anecdotal so I will not waste my time. If you are injured, say a broken leg or a bullet hole, the ER will patch you up. With any other medical needs it gets complicated depending on what ER and what State you are in.
    , @TomSchmidt
    What about emergency rooms that do not accept payment by Medicare or Medicaid? Those places can reject anyone with impunity.

    Sounds like a good way to cut healthcare costs.
  4. @jtgw
    Single-payer only means that you are not financially responsible for your care (depending on what the single-payer system covers, of course). It doesn't ensure actual access to care, and indeed you find in single-payer systems that care has to be rationed and not everyone who needs it, gets it. This is aside from the fact that federal provision of healthcare, or mandating health insurance, is not constitutional, although these days what is or isn't in the Constitution doesn't seem to bother most politicians.

    If the government decided to expand medicare to cover everyone it would cover everyone. It would not cover every thing. I doesn’t cover everything now.

    Read More
    • Replies: @jtgw
    You're confusing coverage with healthcare access. Promising unlimited access to care to everybody is impossible; costs must be controlled and access to care must be limited somehow. This can be done by market pricing or government rationing. One can argue that rationing is better than relying on the market, but we have to understand that there is no way to give everybody everything that he wants.
  5. @The Scalpel
    Right now, this minute, anyone in the United States can walk into any emergency room with an acute medical problem and get taken care of. They cannot be required to pay upfront, and cannot be denied care. This is the law. Any emergency department that fails to do this will be subject to fines and penalties and will not receive reimbursement for any Medicare or Medicaid patients.

    The name of the laws that mandates this are COBRA, which stands for Consolidated Omnibus Budget Reconciliation Act, and EMTALA, which stands for Emergency Medical Treatment And Labor Act.

    These two laws ensure healthcare for acute medical illness for everyone. You can look it up. They do not ensure satisfaction with that healthcare, however, emergency physicians are subject to malpractice law, and those laws apply to everyone. Malpractice law provides the safety net regarding quality. It is not perfect, but there it is. Universal healthcare in the United States of America, who would have thought?

    Right now, this minute, anyone in the United States can walk into any emergency room with an acute medical problem and get taken care of.

    This is what you have been told and you believe it. But it is only partially true. I have a lot of experience with uninsured family and friends and emergency rooms. Anything I tell you will be anecdotal so I will not waste my time. If you are injured, say a broken leg or a bullet hole, the ER will patch you up. With any other medical needs it gets complicated depending on what ER and what State you are in.

    Read More
    • Replies: @The Scalpel
    I don't believe what I wrote because I was told it. I believe it because I have been practicing emergency medicine for 25 consecutive years. I think you are slightly confusing acute medical conditions and chronic medical conditions that are not an acute problem that can be referred to charity care if it is available, or other outpatient care. Sometimes this type of care is not available. But again, for acute medical conditions the emergency room is always available. It is federal law.

    So basically, it is quite possible that someone with a chronic medical condition cannot get care until they develop an acute medical complication as a result. For example, someone with diabetes might not be able to afford a primary care doctor and may find it difficult to obtain charity care. They end up in the emergency department with myocardial infarction and eventually hospitalization in an intensive care unit and probably a cardiac catheterization - all at great expense to the system (but not the patient), but taken care of. All this, when a primary care doctor who treated the patient's diabetes might've prevented it.
  6. @WorkingClass
    If the government decided to expand medicare to cover everyone it would cover everyone. It would not cover every thing. I doesn't cover everything now.

    You’re confusing coverage with healthcare access. Promising unlimited access to care to everybody is impossible; costs must be controlled and access to care must be limited somehow. This can be done by market pricing or government rationing. One can argue that rationing is better than relying on the market, but we have to understand that there is no way to give everybody everything that he wants.

    Read More
  7. @WorkingClass

    Right now, this minute, anyone in the United States can walk into any emergency room with an acute medical problem and get taken care of.
     
    This is what you have been told and you believe it. But it is only partially true. I have a lot of experience with uninsured family and friends and emergency rooms. Anything I tell you will be anecdotal so I will not waste my time. If you are injured, say a broken leg or a bullet hole, the ER will patch you up. With any other medical needs it gets complicated depending on what ER and what State you are in.

    I don’t believe what I wrote because I was told it. I believe it because I have been practicing emergency medicine for 25 consecutive years. I think you are slightly confusing acute medical conditions and chronic medical conditions that are not an acute problem that can be referred to charity care if it is available, or other outpatient care. Sometimes this type of care is not available. But again, for acute medical conditions the emergency room is always available. It is federal law.

    So basically, it is quite possible that someone with a chronic medical condition cannot get care until they develop an acute medical complication as a result. For example, someone with diabetes might not be able to afford a primary care doctor and may find it difficult to obtain charity care. They end up in the emergency department with myocardial infarction and eventually hospitalization in an intensive care unit and probably a cardiac catheterization – all at great expense to the system (but not the patient), but taken care of. All this, when a primary care doctor who treated the patient’s diabetes might’ve prevented it.

    Read More
    • Replies: @Jonathan Mason
    Would not the patient be billed for the care delivered, then if he does not pay it the debt would be sold to debt collectors and the patient would eventually be forced to pay out of assets or future earnings, or file for bankruptcy, unless he was already impoverished and disabled. So it would not really be free. At least that is how I understand it.
  8. @The Scalpel
    Right now, this minute, anyone in the United States can walk into any emergency room with an acute medical problem and get taken care of. They cannot be required to pay upfront, and cannot be denied care. This is the law. Any emergency department that fails to do this will be subject to fines and penalties and will not receive reimbursement for any Medicare or Medicaid patients.

    The name of the laws that mandates this are COBRA, which stands for Consolidated Omnibus Budget Reconciliation Act, and EMTALA, which stands for Emergency Medical Treatment And Labor Act.

    These two laws ensure healthcare for acute medical illness for everyone. You can look it up. They do not ensure satisfaction with that healthcare, however, emergency physicians are subject to malpractice law, and those laws apply to everyone. Malpractice law provides the safety net regarding quality. It is not perfect, but there it is. Universal healthcare in the United States of America, who would have thought?

    What about emergency rooms that do not accept payment by Medicare or Medicaid? Those places can reject anyone with impunity.

    Sounds like a good way to cut healthcare costs.

    Read More
    • Replies: @RadicalCenter
    Where is an ER that doesn't accept either Medicare or Medicaid patients?
  9. I like the way our friend Napolitano gets to the crux of the issue:

    “Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government’s laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.

    ” . . . It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of Obamacare. It is utterly without precedent since Jefferson’s presidency.”

    And what the hell’s wrong with that?

    Well done, Mr. President!

    Read More
  10. @TomSchmidt
    What about emergency rooms that do not accept payment by Medicare or Medicaid? Those places can reject anyone with impunity.

    Sounds like a good way to cut healthcare costs.

    Where is an ER that doesn’t accept either Medicare or Medicaid patients?

    Read More
  11. @The Scalpel
    I don't believe what I wrote because I was told it. I believe it because I have been practicing emergency medicine for 25 consecutive years. I think you are slightly confusing acute medical conditions and chronic medical conditions that are not an acute problem that can be referred to charity care if it is available, or other outpatient care. Sometimes this type of care is not available. But again, for acute medical conditions the emergency room is always available. It is federal law.

    So basically, it is quite possible that someone with a chronic medical condition cannot get care until they develop an acute medical complication as a result. For example, someone with diabetes might not be able to afford a primary care doctor and may find it difficult to obtain charity care. They end up in the emergency department with myocardial infarction and eventually hospitalization in an intensive care unit and probably a cardiac catheterization - all at great expense to the system (but not the patient), but taken care of. All this, when a primary care doctor who treated the patient's diabetes might've prevented it.

    Would not the patient be billed for the care delivered, then if he does not pay it the debt would be sold to debt collectors and the patient would eventually be forced to pay out of assets or future earnings, or file for bankruptcy, unless he was already impoverished and disabled. So it would not really be free. At least that is how I understand it.

    Read More
  12. @WorkingClass

    With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor’s administration.
     
    This "domestic centerpiese" was simple graft. Bought and paid for by the health care racket. The Democrats were in a position to create a single payer system which was and is the only way to insure access and bring down the cost of health care. Those who imagine that access is available through emergency rooms should try it sometime. The for-profit health care racket is a much greater drain on the economy than single payer. And if single payer is Communism then the entire West with the exception of the U.S. has gone Communist. The Republicans now have the opportunity that the Democrats squandered. If Trump's Republican Party can learn to govern on behalf of the American people they will be in power for a generation.

    …a single payer system which was and is the only way to insure access and bring down the cost of health care.

    The only entity I’d trust as a “single payer” is the Vatican. But something tells me you wouldn’t.

    And if single payer is Communism then the entire West with the exception of the U.S. has gone Communist.

    Oh, yeah?

    https://truecostblog.com/2009/08/09/countries-with-universal-healthcare-by-date/

    Somebody didn’t tell the Dutch, the Danes, the Austrians, the Australians. the Swiss…

    Compare the relative diversity, especially at the inception dates given, of the single-payer and the non-single-payer countries.

    Oh, and note also the dates given for Japan and Germany, and who was in charge there at the time.

    Read More
  13. Napolitano trots out the tired old chestnut of Jefferson as the champion of small government. Yet if you read President Jefferson’s State of the Union Addresses you will find proposals for extensive public works projects, including the ancestor of our highway system, public education, and more. He and Madison joined in one of the biggest federal power overreaches in U.S. history by negotiating the purchase of the Louisiana Territory from France – despite the absence of any “enumerated power” in the Constitution that envisioned such an act by the central government. You will also find Jefferson proposing in 1811 a national, federal tax on excess wealth such that “…the farmer will see his government supported, his children educated,, and the face of his country made a paradise by the contributions of the rich alone, without his being called on to spend a cent from his earnings.”

    It would be far more accurate to say that Thomas Jefferson was opposed only to big government that was not headed by Thomas Jefferson.

    Read More
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