Friday, November 8, 2013

Colorado and Washington ignore federal health care laws with impunity

So why can't every other state?

I'm referring of course to federal health care laws regulating commerce in and the consumption of leafy green weeds of the Cannabis and Indica families. Come on, you didn't really think those federal laws were there because of marijuana's funky smell, did you? No, they're in place because the feds have thought for a century or more that smoking weed is bad for your health, so bad they'll put you in prison for subjecting yourself and others to its dangers.

Here, though, is where we take a right turn from what you might have thought was going to be a pot-legalization post into what is in fact an Obamacare-ignoring state by state post.

Remember, insurance companies and the policies they offer are (or were) state-, not federally-licensed, pretty much as 10th Amendment as you can still get in this day and age. What would it take to return them to that condition unconditionally?

Why, to do exactly what Colorado and Washington states have done with respect to their marijuana laws: ignore the feds, and proceed as if the management of health insurance was as much a wholly state matter as the management of marijuana.

To be sure, the main reason Obama and Holder are standing around holding their bongs with respect to the moves by Colorado and Washington is that pot-smokers are a larger Democratic Party constituency than they are a Republican Party one, so yes, the non-prosecution of Coloradans and Washingtonians under federal anti-marijuana drug titles is also an egregious case of corrupt selective federal judicial prosecution.

Still, this brings us finally to where everything ultimately really does get decided in politics: civil obedience or disobedience to whatever domination is proposed, and the ultimate recognition that the fault that we are underlings lies ultimately with ourselves. Not with the bogeyman we might make of the amateur community organizer Obama, or the purring Harry Reid, or the supercilious Pelosi, or the vague shadow army of the lefties, or the main stream media, or anyone else behind Obamacare. With ourselves, for passively submitting to it. If you want your obeisance, you can keep your obeisance. Period.

Legislative potheads in Colorado and Washington just rolled back a century of obedience to federal anti-marijuana laws. At this point in the absurd tragicomedy still unfolding across health insurance, how hard would it really be for state legislatures truly concerned for their citizens' health insurance to do exactly the same thing with Obamacare?


  1. All good points. Can't wait for the roll-out. Whoops, meant "roll up", man.

  2. Great idea.

    Imagine, if you will, an entrepreneur that says -- I'm going to start a Texas health insurance company that sells health insurance only to Texans, and that sets up deals only with Texas doctors. You move out of the state, you're off the policy. If you get hurt while you're visiting somewhere else, you pay your bill to the doctor there and submit a claim to us when you get back home. Pure and simple intrastate commerce.

    Of course, the Obamacare "tax" that the insured has to pay for not having an Obama-compliant policy is a disincentive. But because the ACA prevents enforcement by fine or jail, as long as you don't expect a refund, you can forego paying that. (Or so some say.)

    This insurance reason should work, right? Purely intrastate commerce, no interstate.

    So thought the Californians who were growing weed for the "medical" market out there. But au contraire said the Supreme Court. If the activity allegedly has a "substantial effect" on interstate commerce, that's close enough for federal government work.

    Until the Great Justice Thomas is able to convince a majority of statists on the Court to READ THE DAMN TEXT OF ARTICLE I, that's how it's going to roll here in the land of the free. And it would take a large pair for someone to bet a health insurance company otherwise these days.

    But we can dream . . .

    1. Pik, the whole point is ignoring federal law. That's what Washington and Colorado are doing. So to argue the Supremes and interpretations of the Commerce Clause is kinda moot.

      Now who is willing to take what risks is indeed the question. Certainly Hobby Lobby is taking risks others aren't, or at least they're fronting big dollars they'll never recoup. OTOH, that's the creative destruction of fungible capitalism: Aetna or UHC might dutifully obey Obamacare's inbuilt death spiral only to find themselves abandoned to startups that take their place by ignoring the fatal flaws in the law.

      Again, while others dream, Washington and Colorado are right now blowing pot smoke in Holder's face. Of course, smoking weed is a harmless crime, unlike violating provisions of Obamacare.


    2. Keith, I read your piece as relying on the Constitution (commerce clause, or 10th amendment) to ignore the federal statute, to which I responded that the commerce clause argument is a loser under current Supr Ct law, such as it is.

      If your point is instead that state governments should ignore a federal statute regardless of what the courts will say, and in particular ignore a federal statute that the current thug regime will definitely enforce, then you're talking civil war, revolution, and Orval Faubus stuff.

      Not that there is anything wrong with that, but I think it is too esoteric of a theoretical Constitutional point to get much momentum among the populace, which is of course would be essential to the effort.

      Replacing wrong-thinking Supreme Court justices (wrt commerce clause), followed by political solutions, would be the order of business IMO.

      P.S. Civil disobedience also requires serving time, Gandhi-like, to point out the injustices of the enforcement of the unjust law. (Not running and whining ala Edward Snowden.) It will be difficult to convince investors in insurance companies to piss large $ away just to make a theoretical point. Glad the Hobby Lobby people are doing this, but with them it is very personal.

    3. Pik, my point is this. As we discuss this Washington and Colorado states are betting Obama & Co. (and future, Republican presidents) will not enforce federal anti-marijuana laws in the face of those states' willful defiance of them. So are all the investors putting money into the new, state-legal sale and distribution regimes, which while maybe not at the fiscal levels of health insurance company investment, are not inconsiderable. I am not saying they should be doing these things, I am pointing out they in fact already are doing these things, right this minute. The federal laws are still on the books, just like Obamacare. The bank accounts are imminently seizable, just as under Obamacare, the investments imminently forfeitable. The federal prison cells are open for business, just as under Obamacare. If you wish to call the processes taking place in Washington and Colorado states civil war, revolution, and Orval Faubus stuff, that's okay with me, but it's already happening right now, regardless of what you call it. The Justice Department, Eric Holder, and the federal prosecutors in Washington and Colorado are going to bed tonight knowing that the citizens of Washington and Colorado are buying, selling, and consuming marijuana in explicit violation of the federal statutes they themselves are sworn to uphold and prosecute, and they are doing nothing about it.

      I do understand if, as a lawyer and thus a sworn officer of the court yourself, you find the blatant violation of existing law an uncomfortable proposition. Nevertheless, this is exactly what the original "tea party" did that led to the happy occasion of us having this discussion today, and their intenton at the time was never to start a war - but by the same token never a fear of the consequences. This is also, again, exactly what's happening right now in Washington and Colorado. (continued)


    4. Well, I think we agree that it all depends on whether the feds call the disobeyers' bluff. If the disobeyers figure that the feds won't enforce the law (ala WA and CO), then they carry on.

      But the reigning power called the bluffs of the Founders, the Confederacy, and Orval Faubus. As that happened, of course, the Founders not only fought on the battlefield, but they expended no small effort in convincing "mankind" of the justness of their cause:

      When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

      The Confederacy and Orval Faubus were not able to gain the respect of the opinions of mankind (largely because their causes were unjust), and so they lost to the overwhelming power of the feds. The Founders were so able (and using geopolitical factors).

      My question is whether a commerce clause or 10th amendment argument is sufficient to do that, should the feds call the bluff. As a practical matter, I believe that this thug regime will enforce its signature law, and I don't like the chances of cogently and convincingly making the point, that's all.

      And no, it is not only as a sworn officer of the court that I flinch at this. The problem with laws that are unjust and unwise (as is the ACA) is that people not only don't respect those laws, but they lose respect for laws in general. It's the flip side of the "broken windows" theory that Giuliani put into place. Loss of respect for the rule of law is the fast lane to a society along the lines of Russia or Latin America.

      So the act of justifiably and knowingly violating a law is sometimes called for, but to do so the violator is under a grave moral obligation to be right, IMO. And as a practical matter, he must do so in such a way that gains the respect of the opinions of mankind. Even if the ruling regime doesn't choose to enforce the law (which itself further erodes respect for the rule of law).

  3. There is another aspect we haven't yet discussed much which may present itself more overtly in coming weeks, namely that the health insurance companies themselves have been a willing and eager party to Obamacare from the beginning. One does not peacefully nationalize 1/16 of an economy as large as ours without the willing complicity of that sector, in this case the trade-off of receiving many more federally mandated customers at higher prices in exchange for becoming quasi-government utilities to redistribute income to health care providers. If that process continues to break down along the trajectory it's currently on, the uninsured not buying policies, the young invincibles ignoring it, most of the enrollees shunting to Medicaid, the bargain is looking more and more lopsided against the interests of the health insurance companies which struck it, and you can be certain they will force a renegotiation back toward the revenue expectations which prevailed pre-Obamacare.

    The quickest route to that conclusion is of course simply a face-saving delay of indeterminate period by the Democrats themselves, and then, my God, look over there: Iran, nuclear bombs, China, meteors, something else, and, yes, yes, of course we're still working on Obamacare. That snowball is already in motion downhill in the form of exemptions now wrapped in an employment mandate delay now wrapped in special concessions to unions, etc., etc.

    As a matter of fact, that little-plumbed mutual agreement on a delay in the employer mandate is purely civil-disobedience driven (as is the current labor unions concession); no one is naive enough to thing that business pleaded "Oh, we might have a hurtie boo-boo" and the feds clasped their hands and said, "Oh, you poor babies, would a delay help?". The negotiation instead was without a doubt, "F' this: a delay, right now, or kiss your political asses goodbye" and in response "You got it".

    But that renegotiation, or just more layers on the snowball, can also just as easily come in the form of unilaterally, state-blessed incrementally re-re-amended-amended policies which swing back toward the pre-Obamacare status quo, but with no federal agency calling out the troops any more than they are now over marijuana, or sanctuary cities, or anything else where the feds find any alternative to a Waco or a Ruby Ridge the very best one.

    With all due respect to the services which the law and courts do provide us with, sometimes the simplest ways to stop being governed in ways you don't want to be is to stop being governed in ways you don't want to be.


    1. I agree entirely. If you have the political pressure on your side, then you can convince the ruling class that it is in their best interests to not enforce the law. No disagreement with me on that. (Of course, it furthers the cynicism and disrespect of the rule of law, but that's small change to the current regime.)

      But that political pressure is a different kettle of fish than one in which the brave industry or company or state stands up against the feds but without the perceived political advantage. The main example of this is JP Morgan Chase, who "agreed" to a fine in excess of $13B as thanks for doing what the gov't forced it to do as the financial crisis started.

  4. Pik, just keep in mind that what I was hypothecating was not political revolution or anarchy, merely the states persisting in their actions prior to Obamacare to license and regulate pre-Obamacare health insurance policies and allowing all interested companies and policy purchasors to pursue their mutual interests within that legal framework. They can't force companies to write pre-Obamacare policies, of course, any more than they could before, and they can't force individuals to buy pre-Obamacare policies, but they can promote an honest and friendly legal framework for any willing to do so to proceed. To me, this rescues the respect for the rule of law, particularly from the corrupt, crony-favoring Obamacare legislation administration. Remember also the kneecapping Roberts dealt to any Obama effort to proceed any more forcefully under the Commerce Clause.

    Not a whole lot different from HR 3550, except it dispenses with the interloping federal middleman.

    In fact, state-santioned legal actions like those currently in play by Washington and Colorado, by what I'm hypothecating in parallel here, by what Jan Brewer and Joe Arpaio intermittently tried to accomplish vis-a-vis illegal immigration in Arizona really represent, at least to me, the best fall back effort to hold a functional legal framework in place between a corrupt, crony-favoring thugocracy that will colonize as aspect of life legally, then sell it off to the highest bidder - pretty much like the mob coming to town and setting up variable rate protection schemes - whether in selective drug enforcement and prosecution, selective immigration enforcement and prosecution, or selective health care enforcement and prosecution, and the anarchy of black markets and competing organized criminal oligopolies.

    In fact, I can only see a limited number of effective players available here as alternatives to an ever-aggrandizing federal mobocracy. Counter federal legislators, of course - where there in fact are any, not just lifer Kabuki dancers in different costumes. The paternalism of the Supreme Court, which may or may not step in and beat up the bully for us. The states, which are a constitutionally legitimate, already fully integrated legislative and judicial framework. Business, which can apply pressure, but only with quasi-public legitimacy. And Mad Max. That's about it. Not many more effective agencies or frameworks to utilize.

    Frankly, I'm thinking that, before we get to the point of seeing mass kneelings in stadiums chanting federally-approved choruses of "Please, sir, may I have another?" we're going to see more assertion by the states, whether along the lines of Washington and Colorado or along the lines of the Obamacare Medicaid opt-outs.

    God help us all if we don't.


    1. I see what you mean. I was getting hung up on the "disobedience" theme earlier.

      I'll need to do some thinkin' on this point. First thing that comes to mind is that the state scheme would have to produce an attractive product for its citizens (beyond its F-you-feds appeal). Of course, the private/state arrangement should be significantly more efficient, but it's hard to compete with hundreds of billions of tax dollars being poured into the system.

  5. I think the thing that really has me stuck on this is the feeling that the states are no longer popularly seen as much of anything but big competing tourist bureau Teddy bears, at most obligated to field, if not Representatives, Senators who will vote federally, and that the only legitimate government remaining is the central federal one, occasionally tempered or empowered by the Supreme Court, and the only paths of action still even perceivable are to worship it or fume against it.


    1. At least our Texas state gov't (particularly the governor) is also busy traveling the nation to convince companies to move here. Works for me.

      And all states and the feds could learn from the example of Texas, in which the legislature meets only for a few months every two years.