The Deeply Crazy In Virginia’s Obamacare Lawsuit
As my Philadelphia Phillies idled through a two-hour rain delay Thursday night, I curled up with some light reading: a Texas Review of Law & Politics article by the legal team, led by Virginia Attorney General Ken Cuccinelli, that’s challenging the new healthcare individual mandate in the U.S. Court of Appeals for the Fourth Circuit.
It’s fascinating stuff.
Cuccinelli and co. follow a long trail from the 18th century British jurist William Blackstone to the Dred Scott case to the New Deal to the present day. The conservative team, at first, makes a tight, prudential case against the Obamacare mandate that I, in my nonprofessional capacity, happen to favor.
In their words:
No existing case needs to be overruled and no existing doctrine needs to be curtailed or expanded for Virginia to prevail on the merits. Nor does Virginia remotely suggest that the United States lacks the power to erect a system of national healthcare. Virginia expressly pled that Congress has the authority to act under the taxing and spending powers as it did with respect to Social Security and Medicare, but that Congress in this instance lacked the political capital and will to do so. No challenge has been mounted by Virginia to the vast sweep and scope of the Patient Protection and Affordable Care Act (PPACA). Instead, only the mandate and penalty were challenged because the claimed power is tantamount to a national police power inasmuch as it lacks principled limits.
In plainer, get-to-the-point English: We grant you the social safety net established under the “Roosevelt Settlement.” We recognize Congress’s power to regulate interstate commerce. We even grant that this power could conceivably deliver universal healthcare. But for Pete’s sake, don’t try to include “inactivity”—that is, not buying a health insurance plan on the private market—under its purview.
Because, once you regulate the act of doing nothing, what’s left to regulate?
Er, nothing.
Thus, does the state’s power to tax and police become theoretically unlimited?
But, later in the body of the piece, Team Cuccinelli begins to play other, more presently familiar cards. Glenn Beck fans will recognize the faces in the rogue’s gallery: Justice Oliver Wendell Holmes, progressive philosopher John Dewey, and others who, this argument goes, created the post-New Deal legal and philosophical edifice.
Wouldn’t you know it, this welfare-state stuff constitutes a violation of natural law—which, ipso facto, means economic laissez-faire—and a lurch into moral chaos. Echoing the newly popular Hayek, Cuccinelli’s article asserts the primacy of economic rights while characterizing as relativistic the not-exclusively-liberal jurisprudential argument that personhood and dignity precede the marketplace. (Last I checked, I’ve never seen an unborn baby sign a contract.)
Come conclusion time, the piece sounds eerily like it’s not merely advocating the curtailment of an otherwise defensible attempt to advance the national interest, but rather like a full-throated libertarian manifesto:
The Progressive Meliorists had argued that they should be accorded constitutional space in which to make a social experiment, agreeing in turn to be judged by the results. The New Dealers carried the experiment forward. Seventy years later, results are in suggesting that the experiment is living beyond its means. The statist heirs to the experiment say that it cannot and must not be curtailed, so now they claim this new power.
Social Security and Medicare—an experiment! Just a temporary, 70-year blip on the radar!
So, in 46 pages, we proceed from modest and reasonable to deeply crazy.
It behooves us to ask, what’s Cuccinelli’s endgame?
I think we’ve seen this movie before.
By: Scott Galupo, U. S. News and World Report, August 18, 2011
New Health Insurance Rules Would Let Consumers Compare Plans In “Plain English”
What would your health insurance cover if you got pregnant? How much could you expect to pay out of pocket if you needed treatment for diabetes? How do your plan’s benefits compare with another company’s?
Starting as soon as March, consumers could have a better handle on such questions, under new rules aimed at decoding the fine print of health insurance plans.
Regulations proposed by the Obama administration on Wednesday would require all private health insurance plans to provide current and prospective customers a brief, standardized summary of policy costs and benefits.
To make it easier for consumers to make apples-to-apples comparisons between plans, the summary will also include a breakdown estimating the expenses covered under three common scenarios: having a baby, treating breast cancer and managing diabetes.
Officials likened the new summary to the “Nutrition Facts” label required for packaged foods.
“If you’ve ever had trouble understanding your choices for health insurance coverage . . . this is for you,” Donald Berwick, a top official at the Department of Health and Human Services, said at a news conference announcing the proposal.
“Instead of trying to decipher dozens of pages of dense text to just guess how a plan will cover your care, now it will be clearly stated in plain English. . . . If an insurer’s plan offers subpar coverage in some area, they won’t be able to hide that in dozens of pages of text. They have to come right out and say it.”
Industry representatives said complying could prove onerous for insurers. “Since most large employers customize the benefit packages they provide to their employees, some health plans could be required to create tens of thousands of different versions of this new document — which would add administrative costs without meaningfully helping employees,” Robert Zirkelbach, press secretary for the industry group America’s Health Insurance Plans, said in a statement.
Insurance shoppers would also have to keep in mind that their actual premiums could change after they finalized their application, particularly in the case of plans for individuals, which can continue to adjust benefits based on detailed analysis of members’ health history over the next three years. (After 2014, the health-care law will essentially limit insurers to considering only three questions about applicants: how old they are, where they live and whether they smoke.)
The regulation, which is subject to a 60-day public-comment period, essentially fleshes out details of a mandate established by the the health-care law. But it also clarifies a question that the law left somewhat ambiguous: How soon into the application process can shoppers get the summary from insurers?
The regulations would require insurers to provide the summary on request, rather than waiting until someone applies for a policy or pays an application fee, a position that drew praise from consumer advocates.
“If consumers are really going to be able to compare their options, they should be able to easily get this form for any plan that they would like to consider,” said Lynn Quincy, senior health policy analyst for Consumers Union, the nonprofit publisher of Consumer Reports.
In addition to supplying the summary on demand, insurers would have to automatically provide it before a consumer’s enrollment, as well as 30 days before renewal of their health coverage. Plans must also notify members of any significant changes to their terms of coverage at least 60 days before the alterations take effect.
The summary form, which can be sent by e-mail, must be no longer than four double-sided pages printed in 12-point type. In addition to listing a plan’s overall premiums, co-pays and co-insurance amounts, it must include charts specifying the out-of-pocket costs for a range of specific services. A copy can be viewed at www.healthcare.gov/news/factsheets/labels08172011b.pdf.
By: N. C. Aizenman, The Washington Post, August 17, 2011
Republican House Bills: A Glimpse Into The Tea Party’s Vision For America
If the House ran America, what would America look like?
It would no longer have a far-reaching health-care law. The House voted to repeal that legislation in January.
It would no longer have federal limits on greenhouse gases. The House voted to ax them in April.
And it would not have three government programs for homeowners who are in trouble on their mortgages. The House voted to end them all.
These and many other changes are included in an ambitious slate of more than 80 bills that have passed since Republicans took control of the chamber this year.
Most of these measures will die in the Democrat-controlled Senate. Still, they are a revealing kind of vision statement — the first evidence of how a tea-party-influenced GOP would like to reshape the country.
That vision is aimed at dismantling some Democratic priorities. The GOP’s philosophy holds that paring back an expensive and heavy-handed government bureaucracy would help restore the country’s financial footing and give private businesses the freedom to grow and create jobs.
After seven months, it is still only half a vision.
On major issues such as health care, climate change and bad mortgages, the House has affirmed that fixes are needed — if it can ever manage to repeal the old ones.
It hasn’t said exactly what those changes should be.
“The Republican Party is sort of united in terms of what they’re against. But there’s not a great deal of consensus right now in terms of what they’re for,” said Michael D. Tanner, a senior fellow at the libertarian Cato Institute and an expert on health-care reform and recent GOP history.
This month, a divided Congress finally staggered into its summer recess. Its business has been split between the terrifyingly urgent — including standoffs that threatened a government shutdown and a national debt default — and the purely theoretical.
The theoretical part has come because neither the House nor the Senate is likely to approve big ideas dreamed up by the other. The Democrat-held Senate has reacted to this by withdrawing into legislative hibernation.
House Republicans have instead been passing bills that tell a story — about the country they want but can’t quite get.
“The new House Republican majority was voted into office to change the way Washington does business and make the government accountable to the American people once again. Our agenda has reflected these goals,” said Laena Fallon, a spokeswoman for House Majority Leader Eric Cantor (Va.).
But even within the Republican ranks, there is a desire for more details about the party’s vision for replacing Democratic policies.
Rep. Trey Gowdy (S.C.) said the GOP must put forward its own solutions on issues such as health care, job creation and mortgage assistance. He said he is not convinced that there is a need to take on climate change in the same way.
“Being the party of ‘no’ . . . is an appropriate response” in some cases, Gowdy said. “It’s not appropriate when you’ve been extensively critical of someone else’s ideas” and have none to replace them, he said.
“For substance reasons, and for credibility reasons, we also need to have a comprehensive . . . alternative that goes beyond saying, ‘Your plan is bad,’ ” Gowdy said.
The best-known part of the House’s vision has to do with spending. The chamber passed a budget that calls for a Medicare overhaul that would force new recipients to buy private insurance after 2022. It also passed, with five Democratic backers, a bill that demanded a balanced budget amendment: essentially, a spending limit written into the Constitution.
But the House’s measures have gone far beyond the budget.
It has passed legislation to forbid new energy-efficiency standards for light bulbs and to punish shining a laser pointer at an airplane in flight. It voted to take away federal funding for National Public Radio and for public financing of presidential campaigns.
The House also took a stand against President Obama on the military campaign in Libya, rejecting a motion to approve U.S. involvement. And it voted to rein in Environmental Protection Agency efforts against “mountaintop-removal coal mines” by requiring the EPA to defer to decisions by state regulators.
On three major issues, the House seemed to acknowledge that simply repealing a Democratic idea might not be enough — and that it did not have its own solutions.
On Jan. 19, for instance, 242 Republicans and three Democrats voted to repeal the landmark health-care law.
In place of the legislation, Republicans had said they would craft their own solutions for problems involving high costs and the denial of coverage for preexisting conditions. Their slogan, outlined in last fall’s Pledge to America, was “Repeal and Replace.”
No replacement has occurred.
A bill that would limit liability in malpractice lawsuits has passed in committee. Other ideas are being developed, aides said.
On climate change, the EPA is requiring larger power plants and industrial facilities to reduce greenhouse gas emissions to obtain new permits.
But many in Congress worried that the effort would drive up energy prices and kill jobs. So in April, 236 House Republicans and 19 Democrats voted to make the EPA stop in its tracks.
In place of regulations, they approved only a vaguely worded “sense of the Congress” about climate change.
“There is established scientific concern over warming of the climate system,” the bill says. It adds that Congress should attack the problem “by developing policies that do not adversely affect the American economy, energy supplies, and employment.”
But how? When? The measure doesn’t say.
And it doesn’t need to, said Tim Phillips, president of the conservative group Americans for Prosperity. He said his group thinks that simply repealing this legislation — and the health-care law — is enough for now.
“The big-government assault [has been] so damaging to the economy and the government. They’re doing the right thing by just trying to stop and reverse,” Phillips said.
Environmental groups have said that the House’s bill would leave the nation powerless to fight an escalating global problem.
“They clearly aren’t going to pass any legislation themselves that would address that pollution,” said Dan Lashof of the Natural Resources Defense Council.
The House also has voted to eliminate three federal programs meant to aid homeowners in danger of foreclosure. Two help modify loans to create lower payments. The third gives no-interest loans to borrowers who are in trouble. All have been criticized for moving too slowly and helping too few.
In March, the House decided to do away with them. The Congressional Budget Office said that doing so could save taxpayers $2.4 billion.
“None of the programs . . . have been successful,” Michael Steel, a spokesman for House Speaker John A. Boehner (R-Ohio), wrote in a statement.
By: David Fahrenthold, The Washington Post, August 17, 2011
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