Other Examples of "standby Commerce" and the PPACA

[degsme]

One of the arguements put forth by conservatives and which came up in the Orals about the PPACA was the idea that people who have not chosen to buy healthcare coverage are freeloading on the rest of us but that the Government has no right to compell them not to and that there is no precedent for this. But that's not quite the case.

Now I don't know if any amicus curia briefs touched on this. Given the expertise of the litigants, I suspect some may well have, but then again given the rather esoteric nature of Admiralty Law, perhaps not - I have a call into an Adm. Atty relative to see.

Under very very very long held Admiralty laws, and for good reasons of saving the lives of crews involved in what used to be an extremely hazardous trade, various doctrines about providing aid and assistance came about. Invariably these were paid for by "salvage rights". IOW because ships and cargo were quite valuable - if you helped rescue a ship, or its crew, you were entitled to some fraction (sometimes 100% ) of the value of the ship and its cargo.

Now some tried to argue (a very very long time ago - hence setting a very strong precedent) that the salvors were really only entitled to recover the costs and risks involved in what they actually performed. So if a ship lost its steering entering a harbor, and two of the harbor tugs immediately came alongside and towed it to safety - well they would only be entitled to the amount that tugs would normally charge for such a contract....

BUT WAIT!... That is NOT THE CASE. Precisely to encourage investment in the business of safety, rescue and recovery vessels, Salvors are also allowed to recover what are called "standby Costs" http://www.google.com/#hl=en&sclien...,cf.osb&fp=15127d33b53e5f61&biw=1600&bih=1065
the first such Treaty the USA is party to in the modern age is from 1910 but this had been in effect in various forms since the 1890s. What are Standby Costs?

To encourage professional salvage firms it was necessary for salvage awards to cover the cost of keeping a vessel on standby waiting for a casualty

Now the critical part here is that shipping companies could also be FORCED INTO CONTRACTING PRE-EMPTIVELY with vendors of such standby vessels. http://www.ecy.wa.gov/programs/spills/response_tug/tugresponsemainpage.htm

This is essentially what the PPACA does wrt catastrophic care coveage for those who CHOOSE to be uninsured.


Now the "standby cost recovery" has NEVER been found to be Unconstitutional despite it being litigated quite frequently (what exactly those costs should be is a common part of an Admiralty Liability case) . And that gives you Constitutional precedent for The Government having the power to coerce commerce in circumstances where there are inherent "standby costs" that are in the General Welfare of the nation.

You many not like it - but the precedent is there. You may argue that its "different" and in some ways it is. But the core legal precedent IS STILL THERE.

 

[Bugsy McGurk]

The "reasoning" of the Republicans on this is quite straightforward: Obama and the Dems proposed the individual mandate, so the cons must oppose it now even though it was first devised and suggested by the Heritgage Foundation, a slew of GOP senators, and countless other cons.

Period.

 

[degsme]

The "reasoning" of the Republicans on this is quite straightforward: Obama and the Dems proposed the individual mandate, so the cons must oppose it now even though it was first devised and suggested by the Heritgage Foundation, a slew of GOP senators, and countless other cons.

Period.

Well yeah we understand that. But in terms of "unprecedented" action - I'm providing some legal precedent here.

 

[Friday13]

[video=youtube;krD4hdGvGHM]http://www.youtube.com/watch?v=krD4hdGvGHM[/video]

 

[PolitacynicNH]

So when US requires say Exxon Mobile to carry insurance for oil spill clean up this would fall under a mandate?

One of the arguements put forth by conservatives and which came up in the Orals about the PPACA was the idea that people who have not chosen to buy healthcare coverage are freeloading on the rest of us but that the Government has no right to compell them not to and that there is no precedent for this. But that's not quite the case.

Now I don't know if any amicus curia briefs touched on this. Given the expertise of the litigants, I suspect some may well have, but then again given the rather esoteric nature of Admiralty Law, perhaps not - I have a call into an Adm. Atty relative to see.

Under very very very long held Admiralty laws, and for good reasons of saving the lives of crews involved in what used to be an extremely hazardous trade, various doctrines about providing aid and assistance came about. Invariably these were paid for by "salvage rights". IOW because ships and cargo were quite valuable - if you helped rescue a ship, or its crew, you were entitled to some fraction (sometimes 100% ) of the value of the ship and its cargo.

Now some tried to argue (a very very long time ago - hence setting a very strong precedent) that the salvors were really only entitled to recover the costs and risks involved in what they actually performed. So if a ship lost its steering entering a harbor, and two of the harbor tugs immediately came alongside and towed it to safety - well they would only be entitled to the amount that tugs would normally charge for such a contract....

BUT WAIT!... That is NOT THE CASE. Precisely to encourage investment in the business of safety, rescue and recovery vessels, Salvors are also allowed to recover what are called "standby Costs" http://www.google.com/#hl=en&sclien...,cf.osb&fp=15127d33b53e5f61&biw=1600&bih=1065
the first such Treaty the USA is party to in the modern age is from 1910 but this had been in effect in various forms since the 1890s. What are Standby Costs?

[/B]Now the critical part here is that shipping companies could also be FORCED INTO CONTRACTING PRE-EMPTIVELY with vendors of such standby vessels. http://www.ecy.wa.gov/programs/spills/response_tug/tugresponsemainpage.htm

This is essentially what the PPACA does wrt catastrophic care coveage for those who CHOOSE to be uninsured.


Now the "standby cost recovery" has NEVER been found to be Unconstitutional despite it being litigated quite frequently (what exactly those costs should be is a common part of an Admiralty Liability case) . And that gives you Constitutional precedent for The Government having the power to coerce commerce in circumstances where there are inherent "standby costs" that are in the General Welfare of the nation.

You many not like it - but the precedent is there. You may argue that its "different" and in some ways it is. But the core legal precedent IS STILL THERE.

[/SIZE]

 

[GordonGecko]

The question is...will Kennedy and even Roberts go for that kind of argument....or will their political affiliations trump any kind of open-mindedness, as with Scalia, Thomas, and Alito?

 

[degsme]

So when US requires say Exxon Mobile to carry insurance for oil spill clean up this would fall under a mandate?

Ah yup. But in that case it clearly is a "comprehensive regulatory framework for Interstate/international Commerce".

But in the case of salvage in general, like the "standby tug" that was in the Straits of Juan de Fuca, the assertion made is that

• Simply by venturing out onto the sea, ALL SHIPS are inherently "in the market" for rescue infrastructure
• "corporate persons" can be made to pre-emptively pay for this infrastructure EVEN BEFORE they have actually had need of it

 

[degsme]

The question is...will Kennedy and even Roberts go for that kind of argument....or will their political affiliations trump any kind of open-mindedness, as with Scalia, Thomas, and Alito?

I know from previous Admiralty cases that Kennedy has ruled on, that he very much would. That's in part what his comment about "uniquely proximately very close" in part invokes.

I dunno Roberts' track record on Admiralty so I can't make an informed opinion on it.

 

[Arkady]

Interesting one. I hadn't considered that.

There are other examples, too, from maritime regulations. For example, even personal pleasure craft have Coast Guard regulations about carrying personal flotation devices on board. Given the regulations about certifications for those devices, this is effectively a requirement that individuals buy personal flotation devices from third party vendors if they want to boat, even if they aren't otherwise engaging in any interstate commerce. This is actually a fairly close precedent, since a personal flotation device is basically a kind of insurance, against the risk of your vessel sinking. So, in essence, people are being mandated to buy insurance from private companies. The only little difference is that you can avoid doing so by not exercising your right to get in a boat.

The fact is there is a whole cluster of precedents all around this area. The government can force people into a health insurance system (Medicare). It can force them to buy things even when the government isn't the one selling (as it did with the militia act's requirement that people arm themselves). It can force corporate "people" to hire private vendors to perform independent audits. And apparently there are other examples like the one you've got in admiralty law. It's going to discredit the Supreme Court horribly to somehow invent a new Constitutional rule, narrowly tailored to fit in between the cracks of all those various precedents, for the obvious partisan purpose of invalidating a law they don't like on policy grounds.

To me, though, the "smoking gun" of the illegitimate politicking here is this simple fact. I don't think ANYONE denies that the government would have the right to tax people exactly the same amount and then to turn around an spend that money to buy private insurance for those same people... or even to tax them, then hand the money back to them as a credit if they buy the private insurance (which is essentially what the right-wing plan for transforming Medicare into a credit system would be). So, this whole idiotic idea of striking down the law has to turn on the monumentally absurd idea that somehow having government touch the money, in the process of it passing from the healthcare recipient to the health insurance provider, makes all the difference in the world, rendering an unconstitutional act into a constitutional one. That's a ridiculously superficial distinction, that makes no real-world difference to absolutely anybody. To make it the critical question in a matter this big would be laughable if it weren't so tragically corrupt.

 

[Lukey]

I might buy that argument if PPACA was limited to "catastrophic" care only. It is, of course, not limited to only "catastrophic" care so your idea goes down the drink (so to speak). But then again, only those who "chose" to engage in shipping were required to engage in this commerce. Your case would be a lot stronger if everyone would have been forced to buy into this system on the chance that at some point in the future they might find themselves engaging in shipping activities.

 

[degsme]

I might buy that argument if PPACA was limited to "catastrophic" care only.

Once you are in the market for healthcare, you are regulatable. And "standy by cost recovery" means you are in the market.

 

[degsme]

Interesting one. I hadn't considered that.

There are other examples, too, from maritime regulations. For example, even personal pleasure craft have Coast Guard regulations about carrying personal flotation devices on board.

No that's purely a regulatory scheme. You can make your own PFDs etc. you aren't required to contract.

See this is where it gets messy on the Con Law side. as you point out, we have a lot of these sort of "cost recovery" legislations.

 

[Lukey]

Once you are in the market for healthcare, you are regulatable. And "standy by cost recovery" means you are in the market.

As I pointed out, no, it doesn't. Just by dint of breathing, you are not engaging in the health care market.

 

[degsme]

As I pointed out, no, it doesn't. Just by dint of breathing, you are not engaging in the health care market.

Yes you are. Because ER's are "standby costs" that you are not paying.

 

[lupehernandezdepedajack]

One of the arguements put forth by conservatives and which came up in the Orals about the PPACA was the idea that people who have not chosen to buy healthcare coverage are freeloading on the rest of us but that the Government has no right to compell them not to and that there is no precedent for this. But that's not quite the case.

Now I don't know if any amicus curia briefs touched on this. Given the expertise of the litigants, I suspect some may well have, but then again given the rather esoteric nature of Admiralty Law, perhaps not - I have a call into an Adm. Atty relative to see.

Under very very very long held Admiralty laws, and for good reasons of saving the lives of crews involved in what used to be an extremely hazardous trade, various doctrines about providing aid and assistance came about. Invariably these were paid for by "salvage rights". IOW because ships and cargo were quite valuable - if you helped rescue a ship, or its crew, you were entitled to some fraction (sometimes 100% ) of the value of the ship and its cargo.

Now some tried to argue (a very very long time ago - hence setting a very strong precedent) that the salvors were really only entitled to recover the costs and risks involved in what they actually performed. So if a ship lost its steering entering a harbor, and two of the harbor tugs immediately came alongside and towed it to safety - well they would only be entitled to the amount that tugs would normally charge for such a contract....

BUT WAIT!... That is NOT THE CASE. Precisely to encourage investment in the business of safety, rescue and recovery vessels, Salvors are also allowed to recover what are called "standby Costs" http://www.google.com/#hl=en&sclien...,cf.osb&fp=15127d33b53e5f61&biw=1600&bih=1065
the first such Treaty the USA is party to in the modern age is from 1910 but this had been in effect in various forms since the 1890s. What are Standby Costs?

[/B]Now the critical part here is that shipping companies could also be FORCED INTO CONTRACTING PRE-EMPTIVELY with vendors of such standby vessels. http://www.ecy.wa.gov/programs/spills/response_tug/tugresponsemainpage.htm

This is essentially what the PPACA does wrt catastrophic care coveage for those who CHOOSE to be uninsured.


Now the "standby cost recovery" has NEVER been found to be Unconstitutional despite it being litigated quite frequently (what exactly those costs should be is a common part of an Admiralty Liability case) . And that gives you Constitutional precedent for The Government having the power to coerce commerce in circumstances where there are inherent "standby costs" that are in the General Welfare of the nation.

You many not like it - but the precedent is there. You may argue that its "different" and in some ways it is. But the core legal precedent IS STILL THERE.

[/SIZE]

So where is the part that mandates citizens to be in the salvage business

 

[degsme]

So where is the part that mandates citizens to be in the salvage business

Doesn't follow. No citizen is mandated to be in the Hospital or Healthcare Provider business either.

 

[Lukey]

Yes you are. Because ER's are "standby costs" that you are not paying.

That's a bit of a stretch (like saying you have to buy the salvage insurance if you live near a body of water). Where is the limiting principle? Can we be made to pay for an emergency room on every street corner? Can we be made to pay for pediatric ICU's even if we don't are not able to conceive? Psychiatric facilities? Acupuncture clinics? Massage parlors?

 

[degsme]

That's a bit of a stretch (like saying you have to buy the salvage insurance if you live near a body of water).

Nope. Just as your breathing makes you a beneficiary of all manner of government benefits and thus subject to an Am 16 tax.

Where is the limiting principle? Can we be made to pay for an emergency room on every street corner?

And therein lies the rub. And that's why if the mandate is not overturned, it will be supported 6:3 - cuz Roberts wants in on defining the limiting principle.

And the ER on the street corner is funded like the rest of them. That's a political decision, just like you have to pay for military bases in Japan.


Now as to the limiting principle - if in fact there is a direct tangible impact on the market - and there clearly is in your potential for emergency services - the rate of accidental death and injury for 18-29yo by itself provides that motivation - you are regulateable.

 

[Arkady]

You can theoretically make your own PFDs, but ultimately the materials need to come from somewhere, and given the requirements for what qualifies as a PFD, and the testing that goes into that, the chance of ANYBODY being able to make a qualifying PFD without buying SOMETHING from SOMEONE else is basically zero. For all practical purposes, it's a requirement to enter into commerce -- a requirement to contract with private companies or individuals in order to meet a federal mandate.

Now, as a ridiculously theoretical point, yes, someone could theoretically somehow create a PFD without buying anything from anyone else and then go through the huge difficulty of getting it certified by the Coast Guard, in order to fulfill the regulation without "entering into commerce." But that is just about as realistic an idea as thinking that someone is going to set up his own in-house health insurance company, meeting all the regulatory requirements to do so (such as huge self-retentions to meet future expected claims), in order to create a one-person health insurance plan just for himself, to fulfill the health insurance requirement without contracting with anyone else.

With both the PFD example and the health insurance example, it's theoretically possible to fulfill the requirement without entering into commerce, so even if the Constitutional analysis hung on such a ridiculously impractical concept to get around the mandatory-purchase problem, either you'd have to accept both the health insurance mandate AND the PFD mandate, OR you'd have to reject both.

It's not just PFDs, either. There are also Coast Guard requirements for things like fire extinguishers on recreational motorboats, even when they're not commercial vehicles. Again, in theory the person could conceivably mine the ore for the fire extinguish (if he has metal on land he happens to own), then smelt it, then hammer out a pressure vessel, then set up chemical works to extract CO2, then build his own home-made compressor to get it into the canister, then get that tested by the Coast Guard to get the proper certifications, and thus fulfill the fire extinguisher mandate without entering into commerce. But, again, that's about as practical and economically feasible an idea as a person forming his own personal health insurance company in order to meet the healthcare mandate without entering into commerce.

With fire extinguishers, as with life preservers, we're talking about something closely analogous to health insurance. The idea is that the government is forcing you to buy something that is protection for you against the possibility of an unfortunate turn of events. Visual distress signalling devices are similar (the Coast Guard requires certain recreational boaters to have Coast-Guard certified flares on board, and for all practical purposes that forces people to contract with third party vendors to buy certified flares).

The only real way to distinguish this from the healthcare mandate, for constitutional purposes, is to fixate on the fact that people could avoid the various Coast Guard mandates by avoiding boats. But since the Constitution gives no foothold for that kind of distinction, that wouldn't be a terribly honest line of argument. If the Supreme Court were to strike down the healthcare mandate in a way that had intellectual integrity, it would have to take the form of a general principle that the government can't make people buy things other than as part of commerce they would have been involved with anyway, and that would strike down all the Coast Guard regulations, too. It would say that if you want to run for luck with a vessel that lacks PFDs, flares, and fire extinguishers, and you're not operating that vessel for any kind of commercial operation, you're free to do so, just as you're free to run for luck without insurance and hope you don't get sick.

 

[degsme]

True - but the USCG doesn't have a say on non-federal waterways.