Conservative Legal Luminaries Concede: The Individual Mandate Is No Unique Threat To Freedom, After All
As summarized one month ago in a post here on Jonathan Chait’s blog, conservatives reacted with fury to an article I wrote for Slate in which I pointed out that two major components of House Budget Committee Chair Paul Ryan’s Roadmap for America’s Future closely resemble the much-demonized “individual mandate” in the Affordable Care Act. In particular, I noted that the ACA provision requiring health insurance has precisely the same kind of impact on individual purchasing decisions as Ryan’s roadmap, and is, if anything, less coercive than the Roadmap proposal to provide a tax credit to individuals who purchase health insurance, as a replacement for the current exclusion from income of employer-sponsored health insurance. The ACA imposes a tax penalty on individuals who choose not to purchase health insurance. The Ryan Roadmap, on the other hand, provides a tax credit to individuals who choose to purchase health insurance—a technical distinction, I suggested, without an economic or other real-world difference.
National Review, the Weekly Standard, and Hot Air raised various objections to this point, which was seconded by Ezra Klein in the Washington Post and by Jonathan in TNR. But recent oral arguments before federal appeals courts hearing legal challenges to the ACA should quiet such protests once and for all. In these arguments, two of the most celebrated members of the Right’s legal elite acknowledged that there is no daylight between the ACA mandate-plus-penalty and a Ryan-type tax credit universally conceded to be constitutional.
The first instance of this occurred on June 1, when Sixth Circuit Judge Jeffrey Sutton, sitting on a three-judge panel in Cincinnati in a case brought by the conservative advocacy group Thomas More Law Center, floated the hypothetical idea of a tax credit alternative to the ACA approach. The Law Center’s attorney, Robert Muise, acknowledged that “you could provide a credit for health insurance, there’s no prohibition on that.” To which Judge Sutton responded:
You think it would be just as coercive to say to people, everybody pays the same additional tax, it’s a health care tax, everybody pays it and the only people that don’t pay it, i.e. get a credit, are those with insurance, you think that would be as coercive?
Muise contended that a tax credit was different because it encouraged activity—namely the purchase of health insurance—whereas the ACA provision penalized a “failure to act.” But Sutton didn’t buy it:
If that’s your view, then just pay the penalty, pay the penalty, don’t get insurance, don’t be forced to do anything, in that sense, if you think they’re equivalent, in that sense, no one is forced to do anything, because the economic incentives are the same in both settings, you can’t say the law requires you to buy it, the law just penalizes you if you don’t.
Judge Sutton is not the first person to observe that the ACA’s allegedly freedom-destroying mandate is operationally indistinguishable from commonplace tax incentive provisions. But, apart from having actual decisional authority on the matter, Sutton enters this space with formidable ideological and professional credentials. One of the first batch of appeals court nominees picked by President George W. Bush, Sutton, though only 42 years old, earned his front rank position as the energizer bunny of the Rehnquist Court’s late 1990’s drive to shrink Congress’ domestic regulatory authority in the name of “federalism.” As a lawyer, Sutton argued and won, usually by bitterly contested 5-4 margins, a raft of decisions striking or narrowing provisions of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Violence Against Women Act, the Clean Water Act, and regulations implementing the 1964 Civil Rights Act, among others. He famously once told Legal Times, “I really believe in this federalism stuff.” Sutton’s professional standing was unquestioned; appointed by the Supreme Court in 2001 to represent a prison inmate, Sutton won a unanimous decision and unusually explicit praise from its author, Justice Ruth Ginsburg, for “his able representation.”
Of course, Sutton’s verbal acknowledgement that the ACA individual mandate is not uniquely coercive, emphatic though it appeared, is no guarantee that he will not strike down a law that Republican orthodoxy demonizes as a drastic expansion of federal power. Nevertheless, his on-the-record statement leaves the case against the ACA mandate resting at best on a hypertechnical foundation lacking in substance.
The second acknowledgement of the ACA mandate’s kinship with uncontroversial tax incentives occurred a week later in Atlanta, at the June 8 argument before a panel of the Eleventh Circuit Court of Appeals in the case against ACA brought by 26 Republican state attorneys general and governors. During the argument, the Republicans’ counsel, Paul Clement, attempted to sound a reasonable note. He said, “There’s lots of different ways that Congress could incentivize people to get to the exact same result. They could have passed a new tax and called it a tax, and then they could have given people a tax credit for paying for qualifying insurance.”
Again, Clement’s observation was not original. But in addition to being the Republican opponents’ lawyer, Clement also served—with universally acknowledged distinction—as George W. Bush’s Solicitor General. Recently, he made headlines by resigning his 7 figure-per-year partnership in the Atlanta-based firm, King & Spalding, when the firm precipitously withdrew from representing his client, the House of Representatives, to defend the federal Defense of Marriage Act, aka DOMA.
The significance of Clement’s functional equivalence concession was not lost on Eleventh Circuit Judge Stanley Marcus. Marcus, originally named a district judge by President Ronald Reagan and subsequently to his current appellate position by President Bill Clinton, drew a logical implication subtly different from Judge Sutton’s observation that the ACA mandate is not uniquely coercive, but one that is potentially even more troublesome for the ACA opponents’ case. “Isn’t that just another way,” he asked rhetorically:
“[O]f saying they [Congress] could have done what they did better? More efficaciously, more directly, and they regulated perhaps inefficaciously, maybe even foolishly, but if it’s rational, doesn’t my job stop at the water’s edge? Isn’t it for the legislative branch to make those kinds of calculations and determinations?”
No constitutional lawyer could mistake where Judge Marcus was heading. How is it possible, he was saying, for courts to dictate which of two methods Congress must choose to implement its constitutionally enumerated powers, when both methods generate “the exact same result?” Judicial micro-managing on such a granular level, Marcus knows, violates the fundamental, black-letter standard established nearly two centuries ago by Chief Justice John Marshall. In his iconic 1819 decision, McCulloch v. Maryland, Marshall broadly interpreted the constitutional grant of authority to Congress “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers: “Let the end be legitimate,” he wrote in words memorized by first-year law students, “let it be within the scope of the constitution, all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
To be sure, no one who listened to this Eleventh Circuit argument could predict the panels’ outcome any more confidently than could those who heard the previous week’s Sixth Circuit argument. But these unequivocal statements, by two of conservativism’s most eminent legal luminaries, that the ACA individual mandate is not a unique threat to Americans’ liberty after all, surely drain much of the juice from opponents’ legal case, and, ultimately, from their political case as well.
By: Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, Guest Post, The New Republic, June 17, 2011
GOP Returns To ‘Death Panels’ Narrative In Desperate Effort To Change The Medicare Story
Republican Member of Congress, Phil Gingrey (GA), has decided that the moment has arrived to get back on offense in the debate for the future of Medicare.
At a press conference earlier this week, Gingrey returned to one of the GOP’s favorite ‘boogeymen’ in an effort to make us forget just how much we hate the Republican approach to reforming Medicare. He went after the fifteen-member panel of medical experts established by the Affordable Care Act who go by the name the Independent Payment Advisory Board (IPAB).
According to Gingrey-
“Democrats like to picture us as pushing grandmother over the cliff or throwing someone under the bus. In either one of those scenarios, at least the senior has a chance to survive.
But under this IPAB we described that the Democrats put in Obamacare, where a bunch of bureaucrats decide whether you get care, such as continuing on dialysis or cancer chemotherapy, I guarantee you when you withdraw that the patient is going to die. It’s rationing.” (Via Politico)
Wow…that does sound scary! In fact, it sounds an awful lot like a …..Death Panel.
Thank goodness that absolutely nothing Gingrey said at his press conference beyond “My name is Phil Gingrey” has even the slightest connection to the truth.
Like it or not, here are the facts –
In order to keep Medicare spending under control, the Affordable Care Act, aka “Obamacare”, established specific target growth rates for the government program that cares for our seniors.
To ensure that these targets are met, the reform law created the IPAB for the purpose of monitoring the growth of Medicare spending and to make recommendations to cut the same in those years where it looks like we are going to blow past the targets – and only in those years.
So, if the growth in Medicare costs is staying within the boundaries set by law, the IPAB has no authority to propose any changes whatsoever.
Why was it necessary to create this panel of experts?
Prior to creation of the IPAB, it was left to Congress to make decisions about who and what should be covered by Medicare.
While Congress has long had their own board of experts to rely on (“Medipac”), the profound influence of special interests combined with a general lack of understanding of the world of medicine – and the economics that rule that world – made it fairly obvious that Congress was not the best place to get the job done.
If you doubt this, simply look at how poorly Congress has managed the growth in Medicare costs to date. And before you blame this on whichever president you would like to put in the crosshairs, you should be very clear that it is, indeed, the job of Congress to make these decisions and manage this policy.
The IPAB was created to solve this problem.
As noted earlier, the board has no statutory impact whatsoever on Medicare payment rates and policy during the years when the spending targets are being met. Their powers only come into play in those years where Medicare actuarial reports suggest we are spending too much money per the restrictions established by Obamacare.
During those years when the board is required to come up with proposals to get spending under control, they will provide these proposals to the DHHS who must then implement them – unless Congress takes it upon itself to come up with their own proposals and pass them into law.
Thus, Congress retains the absolute ability and opportunity to effectuate its own program to bring Medicare costs back in line with the targets any time they wish. Maybe it was me, but I don’t recall Gingrey pointing out this little detail. And there is something else that Representative Gingrey forgot to mention during his tirade. There is an entire list of policy items contained in the ACA that are specifically prohibited to the IPAB.
And what would you imagine is at the top of that list?
The Board is legally barred from proposing anything that will ration health care, restrict benefits or modify the eligibility criteria for beneficiaries.
What’s more, until 2020, the IPAB may not come up with proposals that place the rates being charged by primary hospitals and hospice programs in their sights. This prohibition was the result of the ACA already putting the moves on these organizations when it comes to what the government pays them. Thus, it seemed fair to give them some breathing room for the next eight years or so.
As a result of these inconvenient truths, it is rather difficult to concoct the scenario where Gingrey and friends see this insidious opportunity for the board to ration our health care.
The only argument I can imagine is to suggest that the board could recommend reducing the sums paid to physicians who provide Medicare services to patients. Were this to occur, more physicians might decide to drop out of Medicare, creating a longer waiting period for patients needing to see a doctor.
Of course, even this is not rationing.
Further, the SGR issue is about to become a thing of the past as Congress moves toward reaching a permanent solution to the problem created by an outdated formula that puts physicians in a position of taking major pay cuts from Medicare each year.
Once the physician payment issue is resolved, it becomes hard to see where the IPAB is going to exercise this health rationing Gingrey so fervently fears.
What should disturb each and every American is not only that Gingrey is willing to flat out lie in order to feather his political nest, he is using that lie to pull our attention away from the true health care rationers in our system – the private insurance companies.
Think this is a liberal red herring designed to distract you from the evil government plan to kill grandma?
Ask your physician about the hoops he or she must jump through to gain insurance company approval to do the job you hire them to do. Ask them how much of their time and money is wasted arguing with health insurance company representatives whose sole job is to turn down a requested procedure so that they will not have to pay for the same. Take a look at some of your statements from your insurer and see where they’ve denied payment on any number of technicalities resulting from a contract you signed that you could not possibly understand.
This is the true rationing problem in the United States today.
Still, polls continue to show that many Americans are deeply displeased with Obamacare.
I continue to believe that this is the direct result of so many of us not understanding what the legislation does – and does not – do.
But there is one thing we should all be able to understand.
If the opponents of health care reform and the current approach to Medicare are continuously left to base their arguments solely on lies, should it not occur to us all that maybe the law is better than what we’ve been led believe?
If not, why the lies instead of criticism based on the truth?
By: Rick Ungar, The Policy Page, Forbes, June 24, 2011
Flashback 2007: Tim Pawlenty Proposed Establishing A Health Insurance Exchange
Politico’s Kendra Marr and Kate Nocera reviewthe health care records of the GOP presidential candidates and find that Mitt Romney isn’t the only contender who previously supported parts of the Affordable Care Act. Tim Pawlenty, Jon Huntsman, and Newt Gingrich all flirted with various provisions that ultimately ended up in the health law.
ThinkProgress Health reported on Pawlenty’s past support for “universal coverage” here, and his positive assessment of Massachusetts’ individual mandate, but Cal Ludeman, his commissioner of the Minnesota Department of Human Services, recalls that Pawlenty also advocated for establishing an exchange:
Minnesota’s exchange proposal would have required all employers with more than 10 employees to create a “section 125 plan” so workers could buy cheaper insurance with pre-tax dollars. During a 2007 news conference, Pawlenty said launching such a system would only cost employers about $300.
“Remember how new that idea was, even back then,” said Ludeman. “Everybody was talking about how this was a new Orbitz or Travelocity, where you just go shop. It was never talked about in our conversations as a hard mandated only channel where you could go. But that’s where Massachusetts ended up.”
Pawlenty advanced the non-profit Minnesota Insurance Exchange in 2007, arguing that it could “connect employers and workers with more affordable health coverage options.” “If just two of your employees go out and buy insurance through the exchange, the benefits to the employer on a pre-tax basis — because of their payments to Social Security and otherwise into the 125 plan — more than cover the cost of setting up the plan,” Pawlenty explained.
The exchange originated as a Republican idea and was developed in part by the Heritage Foundation’s Stuart Butler. The measure was eventually adopted by Mitt Romney and later became part of the Democrats’ health reform plan. Under the Affordable Care Act, states that don’t establish their own exchanges by 2014, cede control of the new health market places to the federal government. In 2010, while still governor of Minnesota, Pawlenty rejected the ACA’s “insurance exchanges,” dubbing them a federal takeover.
By: Igor Volsky, Think Progress, June 13, 2011
Medicare Saves Money: Ensuring Health Care At A Cost The Nation Can Afford
Every once in a while a politician comes up with an idea that’s so bad, so wrongheaded, that you’re almost grateful. For really bad ideas can help illustrate the extent to which policy discourse has gone off the rails.
And so it was with Senator Joseph Lieberman’s proposal, released last week, to raise the age for Medicare eligibility from 65 to 67.
Like Republicans who want to end Medicare as we know it and replace it with (grossly inadequate) insurance vouchers, Mr. Lieberman describes his proposal as a way to save Medicare. It wouldn’t actually do that. But more to the point, our goal shouldn’t be to “save Medicare,” whatever that means. It should be to ensure that Americans get the health care they need, at a cost the nation can afford.
And here’s what you need to know: Medicare actually saves money — a lot of money — compared with relying on private insurance companies. And this in turn means that pushing people out of Medicare, in addition to depriving many Americans of needed care, would almost surely end up increasing total health care costs.
The idea of Medicare as a money-saving program may seem hard to grasp. After all, hasn’t Medicare spending risen dramatically over time? Yes, it has: adjusting for overall inflation, Medicare spending per beneficiary rose more than 400 percent from 1969 to 2009.
But inflation-adjusted premiums on private health insurance rose more than 700 percent over the same period. So while it’s true that Medicare has done an inadequate job of controlling costs, the private sector has done much worse. And if we deny Medicare to 65- and 66-year-olds, we’ll be forcing them to get private insurance — if they can — that will cost much more than it would have cost to provide the same coverage through Medicare.
By the way, we have direct evidence about the higher costs of private insurance via the Medicare Advantage program, which allows Medicare beneficiaries to get their coverage through the private sector. This was supposed to save money; in fact, the program costs taxpayers substantially more per beneficiary than traditional Medicare.
And then there’s the international evidence. The United States has the most privatized health care system in the advanced world; it also has, by far, the most expensive care, without gaining any clear advantage in quality for all that spending. Health is one area in which the public sector consistently does a better job than the private sector at controlling costs.
Indeed, as the economist (and former Reagan adviser) Bruce Bartlett points out, high U.S. private spending on health care, compared with spending in other advanced countries, just about wipes out any benefit we might receive from our relatively low tax burden. So where’s the gain from pushing seniors out of an admittedly expensive system, Medicare, into even more expensive private health insurance?
Wait, it gets worse. Not every 65- or 66-year-old denied Medicare would be able to get private coverage — in fact, many would find themselves uninsured. So what would these seniors do?
Well, as the health economists Austin Frakt and Aaron Carroll document, right now Americans in their early 60s without health insurance routinely delay needed care, only to become very expensive Medicare recipients once they reach 65. This pattern would be even stronger and more destructive if Medicare eligibility were delayed. As a result, Mr. Frakt and Mr. Carroll suggest, Medicare spending might actually go up, not down, under Mr. Lieberman’s proposal.
O.K., the obvious question: If Medicare is so much better than private insurance, why didn’t the Affordable Care Act simply extend Medicare to cover everyone? The answer, of course, was interest-group politics: realistically, given the insurance industry’s power, Medicare for all wasn’t going to pass, so advocates of universal coverage, myself included, were willing to settle for half a loaf. But the fact that it seemed politically necessary to accept a second-best solution for younger Americans is no reason to start dismantling the superior system we already have for those 65 and over.
Now, none of what I have said should be taken as a reason to be complacent about rising health care costs. Both Medicare and private insurance will be unsustainable unless there are major cost-control efforts — the kind of efforts that are actually in the Affordable Care Act, and which Republicans demagogued with cries of “death panels.”
The point, however, is that privatizing health insurance for seniors, which is what Mr. Lieberman is in effect proposing — and which is the essence of the G.O.P. plan — hurts rather than helps the cause of cost control. If we really want to hold down costs, we should be seeking to offer Medicare-type programs to as many Americans as possible.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 12, 2011
Gov. Chris Christie: Earn $6,000 A Year? No Medicaid For You!
If you live in the state of New Jersey and are earning $118 a week, congratulations!
According to Gov. Chris Christie, you have escaped the bonds of poverty and no longer are in need of the state’s Medicaid program.
Never mind that $118 a week is but a fraction of the poverty line as defined by the United States of America. Pay no attention to the fact that New Jersey battles California for the mantle of having the highest cost of living of any state in the nation.
Chris Christie, everyone’s favorite no-nonsense, “tell it like it is” governor, has decided that you can manage quite nicely on this paltry sum while remaining fully capable of paying for your own medical care.
Sound like a joke?
It’s not. And it is difficult to imagine anything less humorous. Under the Christie plan, adults with a family of four who earn more than $6,000 a year would no longer qualify for the state’s Medicaid program. Currently, the cut-off to qualify is $30,000.
Think about that for a moment.
A single mother raising three kids on a weekly salary of $118 will no longer be eligible to take advantage of the medical social safety net should she fall ill.
I can hear my conservative friends rising in chorus – mom should have thought about that before having all those kids she couldn’t afford! Maybe she should have. If only there were some place these women could turn to for family planning advice so that they might avoid this problem.
But wait – there is such a program in New Jersey. Or, to be more precise, there was such a program in New Jersey. It turns out that women’s clinics are disappearing from the New Jersey landscape as Governor Christie uses the budget pen to wipe out women’s health programs that might also provide abortion services as a small part of what they make available to women so badly in need of their health care and counseling services. This, despite the fact that no state or federal taxpayer money went towards paying for any such abortion services long before Christie began his assault on women’s health.
In his last budget, Christy sliced $7.5 million from family planning clinics – a cut his new budget proudly continues. As a result, health and planning services so vital to low income women are becoming very hard to find in New Jersey- not to mention the many other states where Governors are using the budget to enact their social, anti-abortion agenda’s.
What do we call powerful people when they pick on the weakest among us?
We call them bullies. And Governor Chris Christie exemplifies the modern-day bully. Is it any wonder, then, that the GOP sees Christie as the man they would so gladly follow into the 2012 election battle?
Christie’s proposal to cut over $500 million from the state’s Medicaid program would not only affect parents earning far too little to support their families. Some of the deepest cuts would leave seniors, who require full-time, in-facility nursing home care, literally out in the cold as the funding that supports their ability to get the medical attention they need disappears.
I suppose these elderly can move back into the homes of their children – many of whom are the ones earning over $6,000 a year, but well below the national poverty line, who will no longer be able to care for their own health needs let another find a way to pay for the care of their sick parents.
There is some good news in this otherwise bleak story.
Come 2014, when the federal government steps in to play a larger role in financing the state Medicaid programs (they already pay for about half of the costs), it will be illegal for these people to be denied care. Accordingly, all these folks need do is see to it they do not get sick between now and 2014.
How hard can this be?
As New Jersey U.S. Senator Robert Menendez put it, “The state is effectively telling these families to wait until 2014 to get coverage again. Unfortunately, there is no
such thing as a waiver for getting cancer.” Certainly, some deal can be cut between man, woman and God resulting in that cancer scheduled to show up next year holding off until 2014 when care will be available.
And how much damage can uncontrolled diabetes really do when untreated for a three year period? So, maybe you lose a couple of toes as the diabetes ravages your body.
As Chris Christie would no doubt remind you, forfeiting a few digits for the common good of wealthy millionaires for whom Christie continues to cut taxes, is a small price to pay.
After all, those tax cuts might just result in your getting a better job in the future – assuming you’re still alive.
And if you aren’t, at least you will die in the knowledge that you will have given your life to improve Chris Christie’s chances of becoming President of these United States some day.
So, at least you’ve got that going for you.
By: Rick Ungar, The Policy Page, Forbes, June 12, 2011
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 
