The Real Threat to Health Care Reform….It’s Not The Supreme Court
Will the Supreme Court overturn the part of the health-care law that penalizes people who don’t buy insurance for themselves? A few months ago, the answer that experienced Court-watchers gave was “not a chance.” Orin Kerr, a law professor at George Washington University who once clerked for Justice Anthony Kennedy, said “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” Now, the best we can say is, who knows?
As Slate’s legal columnist Dahlia Lithwick has said, the conventional wisdom has turned sharply. “Today,” she writes, “it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision.”
That could mean we were wrong a few months ago, or it could mean we’re wrong now. But it doesn’t matter. Replacing the individual mandate wouldn’t be particularly hard. All we need is another policy that does the same thing – specifically, discourage free-riders who don’t want to buy insurance until after they get sick and thus leave the rest of us paying for them.
In fact, I can give you four credible alternatives in four sentences:
We could limit enrollment changes to once every two years, so people who decide to go without insurance can’t buy coverage the moment they get a bad report from their doctor.
We could penalize those who wait to buy coverage with higher premiums, which is what we do in the Medicare Prescription Drug Benefit.
We could have a five-year lockout, in which people who decide to go without coverage wouldn’t be able to access the subsidies or insurance protections for five years, even if they decided they wanted to buy insurance.
We could raise taxes by the same amount as the individual mandate penalty and give everyone who showed proof of insurance on their tax forms a “personal responsibility tax credit” of the same amount.
But all these ideas suffer the same problem: They’d need to pass through Congress. And Republicans in Congress don’t want to make the Affordable Care Act better. They want to repeal it.
This – and not the Supreme Court, or even any flaws in the design of the bill – is the real problem for the Affordable Care Act. Like any major piece of legislation, parts of it will work much better than we expect, and parts of it will disappoint us. Perhaps the experiment with paying hospitals a flat fee to treat a patient’s diabetes will prove a smashing success, leading to lower costs and higher-quality care. And perhaps the provision allowing individuals to publicly rate their insurers will prove a disaster, with companies paying the computer-savvy to rig the ratings.
In that world, the answer would be obvious: Expand the good and repeal the bad. Indeed, we should expect to do this over and over again. We’ll constantly need to double down on what works, remove what doesn’t, and add new ideas and refinements into the mix. Policymakers are never omniscient, but they are, at their best, persistent. And that’s how we’ll move from the inefficient and expensive health-care system we have to the efficient and affordable system we want: one tweak at a time.
That assumes, however, that both parties’ top priority is to get from the system we have to the system that the Affordable Care Act suggests we want: a system with lower costs and near-universal care. But is it?
Increasingly, it seems not. The Democrats have a deep and longtime commitment to health-care reform, one they’ve proven by moving continually right on the issue in a fruitless search for bipartisan support. They’ve given up on single-payer, on an employer mandate, on a public option. And they adopted the same structure that Mitt Romney signed in Massachusetts and that Republicans called for in 1994.
Republicans, meanwhile, have proven deeply and continually committed to opposing health-care reform bills pushed by Democrats. They abandoned Richard Nixon’s idea when Bill Clinton adopted it and Romney’s idea when President Obama endorsed it. In the most recent election, they ran on “repeal and replace,” but when they got to Congress, they voted on a bill that included the “repeal” but was silent on the “replace.” Even now, they’ve done nothing more than vaguely direct some committees to come up with some unspecified ideas at some unnamed date in the future.
Their inattention to “replace” is evidence that their top priority is “repeal.” But they don’t have the votes to repeal the bill. They might not have the votes to repeal it after 2012, either. But so long as they’re telling their base that they will repeal it, if not today then soon, they can’t participate in any significant reforms of the bill, as improving the legislation tacitly accepts its existence. “I think it’s clear that this is an area upon which we are not likely to reach any agreements with the president,” Senate Minority Leader Mitch McConnell told conservative radio host Laura Ingraham.
Democrats, meanwhile, aren’t becoming any friendlier to the GOP’s repeal efforts. Of the 13 House Democrats who voted against the law and survived the election, only three voted with the House Republicans to repeal the bill. In the Senate, not a single Democrat voted for repeal.
This raises the possibility that Congress will neither repeal the legislation nor commit itself to its success. Rather, Republicans will work to hobble it where they can, starving the law of the funds needed for its implementation, harassing the regulators charged with setting it up and stopping Democrats from improving on the law’s successes or responding to its inevitable failures. Democrats will work to ensure that the law survives, but they won’t have the votes to do much more than that.
Wounded, the law will limp along, protected from dying and prevented from thriving.
By: Ezra Klein-The Washington Post, February 8, 2011
The Fight Over The Individual Mandate Is Not About Liberty
Whatever the legal argument about the individual mandate is about, it’s not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan’s former solicitor general, put this well at Wednesday’s Senate Judiciary Committee hearing.
“As I recall,” he said, “the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional.”
I’d disagree slightly with Fried’s characterization of the policy debate — the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate — but on the law, even the panel’s anti-mandate witnesses agreed with his characterization of the single payer’s legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, “All conservatives, I’d imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well).”
There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government’s coverage. That doesn’t make it more constitutional, of course. But it does suggest that the dividing point isn’t liberty.
When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.
Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate — and I mean mere months before — Sen. Chuck Grassley (R-Iowa) said there was “bipartisan consensus” around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate’s Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn’t see the individual mandate as a threat to liberty, and they weren’t constantly emphasizing that it was a tax rather than a penalty.
The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.
By: Ezra Klein, The Washington Post, Posted February 2, 2011
On Health Care, Justice Will Prevail
The lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.
But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.
In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.
The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.
Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.
Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
By: Laurence H. Tribe, Op-Ed Contributor, New York Times: Professor, Harvard Law School and author of “The Invisible Constitution”, February 7, 2011
Gaming the System: At The Supreme Court, Could Legal Precedent Be Less Important Than Popular Opinion?
Articles of faith, as a rule, don’t change every few months. And yet, just nine months ago, it was an article of faith among court watchers that President Obama’s health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?
To review: When the first lawsuits were filed challenging the law in March 2010, the conventional wisdom was that they were little more than a Tea Party stunt. “Several constitutional law experts said this week that it is somewhere between unlikely and hard-to-imagine that the Supreme Court would strike down the new healthcare law,” wrote David Savage at the Los Angeles Times. He quoted George Washington University law professor Orin Kerr, a former Kennedy clerk, saying that “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” In Newsweek in September 2010, Stuart Taylor quoted Walter Dellinger, acting solicitor general under President Clinton, predicting an 8-1 vote at the high court, and Tom Goldstein, another prominent court watcher and litigator, calling for a vote of 7-2.
Fast forward to this week. As my colleague David Weigel put it Monday: “The fate of health care reform is where it was yesterday—in the hands of Supreme Court Justice Anthony Kennedy.” The Wall Street Journal agreed, sighing, “As with so many contentious issues in American life, destiny appears to have appointed [Kennedy] the ultimate arbiter of the constitutionality of the linchpin of this new law: the individual mandate.” Now, the composition of the court has not changed since last year. Nor has the meaning of the Commerce Clause, or the decades of precedents interpreting that doctrine, or the words of the Affordable Care Act itself. The only thing that has shifted between the filing of the Obama health care suits and Judge Roger Vinson’s decision finding the entire bill unconstitutional is the odds. We went from “a less than 1 percent chance” of the suits succeeding to their success being determined by a coin flip in Anthony Kennedy’s chambers.
Putting aside the question of whether it matters what court watchers think—or whether the new odds should make any difference—it’s astounding to witness the conventional wisdom shift so dramatically and so rapidly. It took years for court watchers to take challenges to the collective-rights theory of the Second Amendment seriously. It’s taken just weeks for them to come to believe that the fate of the health care law may be decided by a single vote.
To those in the business of making predictions about the Supreme Court justices, one thing that did change was a smoke signal sent up by Justices Clarence Thomas and Antonin Scalia last month in a passionate dissent from the court’s refusal to hear a case from the 9th Circuit Court of Appeals. Alderman v. United States involved the right of the federal government to criminalize a violent felon’s purchase of body armor. And as Andrew Cohen explained it, the two justices weren’t obligated to publish a lengthy dissent, spelling out—complete with references to Hershey’s Kisses (the new broccoli?)—their view that the Commerce Clause does not allow the federal government to make such a regulation. Their small treatise on the limits of the Commerce Clause’s power, Cohen wrote, “confirms to the world that no more than seven votes on the Supreme Court are still in play over the constitutionality of the federal health care measure.”
Court watchers have long argued that Scalia cannot possibly square his vote (indeed his own words) in the 2005 case of Gonzales v. Raich with a vote to strike down health care reform. Once they read the Thomas/Scalia dissent in Alderman, they had to swallow hard. In Raich, Scalia agreed that Congress could regulate marijuana that was neither purchased nor sold in any market but grown for medicinal reasons at home. “The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce,” Scalia wrote. “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” He added that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”
These words matter a lot to supporters of health care reform. But it’s no longer clear how much they matter to Justice Scalia.
Simon Lazarus has a thoughtful post about all the ways in which the court’s more conservative justices—not just Scalia but also Kennedy and Chief Justice Roberts—”will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.” Reading Raich against the Alderman dissent, I am not sure all the justices are terribly bothered at the prospect of performing such gymnastics. Supreme Court reporters like to believe that the justices are invariably hemmed in and pinned down by their prior decisions, and in a perfect world they might be. But if we learned anything at all from Bush v. Gore, it’s that in landmark cases with huge symbolic stakes, justices on both sides of the aisle can get all kinds of creative.
If that is the case, then in the coming months we should pay less attention to the words of Raich and more to the political scientists and judicial behavior theorists who have a lot to say about how justices decide cases. What really changed between last March and this week is that in making predictions about what happens to health care reform, we have almost entirely stopped talking about the law or the Constitution and begun to think solely in terms of strategic judicial behavior.
Court watchers on both sides of the debate seem to agree that Vinson’s opinion was rooted more in his convictions about the need to restrain federal overreaching than in the court’s modern Commerce Clause precedents. The question now seems to be less about whether the justices can find a way to strike down the law if they so choose—they can—than whether they have the political stomach to do it.
I am not an expert on judicial stomachs. But it seems to me that once you start thinking strategically about how health care reform will fare at the Supreme Court, pretty soon you arrive at some serious questions about the continued legitimacy of the court, judicial responses to public sentiment, and other matters that have far more to do with social psychology than Wickard v. Filburn.
Everyone would like to believe that the kind of constitutional issues presented in these health care suits are clear and specific. But they are precisely the sort of wide-open normative inquiries that may tempt even great and fair jurists to have a little extra-textual fun. “American constitutional lawyers, whether practitioners, academics or judges, seem to feel relatively few genuine constraints in the kinds of arguments they are willing to make or endorse,” professor Sanford Levinson has written. “It is, I am convinced, harder to recognize a frivolous argument in constitutional law than in any other area of legal analysis.”
If the odds of success for the health care challenges have tilted in recent months, it’s not because the suits themselves have somehow gained more merit. It’s because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come. Whether this sea change will affect the Supreme Court remains to be seen. At least on paper, the Supreme Court is immune to whatever the odds makers are saying about the law’s chances. If recent weeks have shown us anything, however, it’s that what’s on paper doesn’t matter as much as we think it does in the nation’s courts.
By: Dahlia Lithwick, Slate, February 2, 2011
How Conservative Attacks on Health Care Reform Will Affect You
Attempts to Repeal Affordable Care Act Have Serious Consequences
The Affordable Care Act provides Americans economic and health security with protections against exorbitant premium hikes, better health benefits, and slower growth in health care costs. Conservatives in the Congress are intent on taking these benefits away.
Conservatives are starting to implement their onslaught to repeal the Affordable Care Act this week as Republicans take control of the House of Representatives. They have scheduled a vote on January 12. If conservatives have their way and repeal the Affordable Care Act, we will go back to a health care system that failed millions of Americans: one with skyrocketing costs bankrupting families and our budget, fewer people with access to quality care, and more people at the mercy of the health insurance industry.
Increasing premiums for millions of Americans. Prior to passage of the Affordable Care Act, individuals and families were faced with skyrocketing premiums. Premiums for individuals increased 120 percent and family premiums increased 130 percent from 1999 to 2009. The Affordable Care Act controls these costs. In fact, the nonpartisan Congressional Budget Office or CBO looked at the law’s effect on premiums in 2016 and estimated that the health reform law would cut premiums for millions of Americans. These premiums cuts would be more substantial for those in the individual market, most of whom will receive subsidies to help cover the cost. According to the CBO, those receiving help in the individual market would see their premiums reduced by 56 percent to 59 percent less than they would pay without the law, while also enjoy better coverage than what they currently receive. Repealing the law means going back to a status quo of skyrocketing premiums that made health insurance out of reach and unaffordable for American families.
Costing 400,000 jobs annually. The Affordable Care Act helps create as many as 400,000 jobs annually over the next decade by lowering costs and helping promote a healthier workforce. It includes cost-containment measures to slow the rate of growth of health care spending. Small businesses in particular are helped through exchanges that allow them to pool resources to lower costs as well as tax credits to make it more affordable to offer their employees health coverage. These cost-reduction provisions free up money that otherwise would be spent on health care and allow companies to spend it hiring more workers. In addition, a healthier workforce is a more productive workforce. Those benefits disappear, as well as the jobs created along with it, if the law is repealed.
Increasing costs for seniors by as much as $1,500 in 2011. The Affordable Care Act eliminates the “donut hole” in the Medicare prescription drug program by 2020. Seniors with high prescription drug expenses before health reform had to pay full price for their prescription drugs—without any help from their drug plan—once their prescription drug spending reached a pre-defined limit. People who hit this limit in 2011 will get a 50 percent discount on their name-brand prescription drugs, saving some Medicare enrollees as much as $1,500 in out-of-pocket drug costs. Those savings will not be realized if the Affordable Care Act is repealed.
Hurting communities of color. Communities of color are more likely to be uninsured, and they suffer from higher rates of chronic illness than the rest of the population. The Affordable Care Act addresses these inequities by expanding health insurance coverage and improving access to primary care, including preventive services. These provisions will be eliminated if conservatives have their way and repeal the health reform law.
Increasing costs and deficits. The Affordable Care Act creates tools to control the growth in health costs while improving quality of care. Effective implementation can reduce administrative costs for small businesses and individuals, promote greater use of preventive care, and prevent unnecessary hospitalizations, saving as much as $2 trillion in total health spending over the next decade. In addition, the CBO estimated the law will reduce the federal budget deficit by $143 billion over the first 10 years and more than $1.2 trillion over the next two decades. Repealing the new law stymies these much-needed efforts and reverts to the unsustainable status quo of skyrocketing costs that were bankrupting our country. Make no mistake: The Affordable Care Act provides Americans economic and health security with protections against exorbitant premium hikes, better health benefits, and slower growth in health care costs. Conservatives in Congress are intent on taking these benefits away and going back to a health system that was failing America. And, to top it off, they’d keep their benefits, while taking away ours.
Americans deserve better. We need the Affordable Care Act.
By: Tony Carrk, Center For American Progress. Note: Originally Published January 5, 2011 prior to US House Vote on Repeal.
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