The 11th Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution
The key passage in today’s opinion striking down part of the Affordable Care Act appears on page 113, where the two judge majority explains how they will determine whether this law is constitutional:
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.
A law requiring most Americans to either carry insurance or pay slightly more taxes clearly regulates the national market for health care. It determines how people will finance health care purchases. It lowers the cost of health insurance. And it protects that market from something known as an “adverse selection death spiral.” So that should have been the end of the case. The Court cites no provision of the Constitution limiting Congress’ authority to pass this law because no such provision exists.
Instead, it imposes two extra-textual limits on national leaders’ ability to solve national problems. If the law is somehow “unprecedented,” and if a decision upholding the law lacks vague and undetermined “meaningful limit[s]” on Congress’ authority that somehow upset the balance between federal and state power, then the law must be struck down even if the Constitution’s text says otherwise.
Yet even if these two novel limits are taken seriously, the court’s analysis still makes no sense. For one thing, the law is only “unprecedented” in the sense that it preferred a market-driven solution to the problem of widespread uninsurance over more government driven solutions such as Medicare. The truth is that Congress already requires nearly all Americans to purchase health insurance — and they have done so for many years. Every year the federal government collects taxes which are in no way optional. A portion of these taxes are then spent to buy health insurance for the elderly (Medicare) for the poor (Medicaid) and for children (SCHIP).
So the only real question in this case is whether the government is required to first take your money and then buy health coverage for you, or whether the Constitution allows Congress to cut out the middle man.
The Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Because the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. this requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective. Moreover, upholding the Affordable Care Act under Justice Scalia’s rule would require a court to do nothing more than hold that the Affordable Care Act is constitutional. There is no federal law which depends upon mandatory broccoli purchases, for example, in order to function properly in the same way that the ACA’s preexisting conditions provision can only function properly in the presence of an insurance coverage requirement. Accordingly, the court’s concern that upholding the law would destroy any limits on federal power is unwarranted.
As a final note, it is likely that conservatives will tout the fact that Judge Hull was appointed by President Clinton in the same way that progressives touted Bush-appointed Judge Sutton’s decision rejecting an ACA challenge. The two judges are not comparable, however. Judge Sutton is a former Scalia clerk who stood on the vanguard of the conservative legal movement for many years. Judge Hull, by contrast, is a compromise nominee Clinton selected in order to overcome obstruction from the Republican-controlled Senate.
Hull has a long record of conservative criminal and individual rights decisions. We now know that she is also very far to the right questions of federal power. That is unfortunate, but it also places her well to the right of some of the Supreme Court’s most conservative members.
By: Ian Millhiser, U. S. News and World Report, August 12, 2011
Are You Smarter Than A Fifth Grader?: Bert and Ernie Getting Married Is a Dumb, Destructive Idea
Some people see politics everywhere, even where they don’t belong.
Case in point a Chicago-area man who, according to Washington, D.C. radio station WMAL, has started an online petition at a website called Change.org seeking to pressure the people behind the landmark children’s program Sesame Street to “let Ernie & Bert get married.”
As a child—and as a parent—I watched a lot of Sesame Street. I’m a big fan of Bert & Ernie and their antics. I can still sing most of the lyrics to “Rubber Duckie” and “Doin’ the Pigeon” from memory. They are funny, engaging characters who demonstrate to children that people—no matter how different they might be in temperament, likes, dislikes and personalities—can still be the best of friends. But they are also, as apparently has been lost on some people, Muppets—a combination marionette and foam rubber puppet invented decades ago—by the legendary Jim Henson and his wife Jane. Muppets are not people, and while they are in many cases gender specific they, as the Sesame Workshop felt compelled to point out Thursday, “Do not have a sexual orientation.” Nonetheless someone out there thinks they would be useful to further a point about sexual identity.
It’s an idea that’s foolish, and moreover, culturally destructive because, if enacted, it would further the end of childhood innocence in America. Children are already bombarded, in and out of school, with messages and meanings that, in my judgment, are far too sophisticated for them to comprehend. Instead, they just confuse and, in some cases, scare them—as was the case when, as the Boston Globe reported back in 2009, “an anxious, depressed 17-year-old boy was admitted to the psychiatric unit at the Royal Children’s Hospital in Melbourne.”
“He was refusing to drink water. Worried about drought related to climate change, the young man was convinced that if he drank, millions of people would die. The Australian doctors wrote the case up as the first known instance of climate change delusion,'” the paper reported.
A 17-year-old man is far more mature than the average viewer of Sesame Street. We have an obligation to protect innocents and innocence and, in a sense, childhood itself. Children are treasures, precious gems that are our future and should be treated as such, not as targets for indoctrination.
By: Peter Roff, U. S. News and World Report, August 12, 2011
Gov Rick Perry’s Abysmal Record On Women’s Health
If you’re a woman from Texas—or indeed, any woman—there’s a lot to dislike about Gov. Rick Perry.
The vanity. The boorishness. The belief you’re too stupid to make your own medical decisions. The weird resemblance to Animal House’s Niedermeyer in his college photo.
Perry reminds me of the scene in Thelma and Louise in which Thelma (Geena Davis) says of her n’er-do-well husband, “He kind of prides himself on being infantile.” Louise (Susan Sarandon) responds, “He’s got a lot to be proud of.”
So as we all prepare for the media barrage surrounding Perry’s presidential announcement on Saturday, and in tradition of my idol Molly Ivins, I’m going to start a new group, Texas Women Enraged by Rick Perry—TWERP for short.
As TWERP’s organizer, I feel obliged to point out that on a practical level, Rick Perry has made it pretty lousy for women in Texas, especially for women at the bottom of the economic ladder. He’s also made it pretty lousy for anybody who doesn’t look like him. As Eileen Smith wrote in the Texas Observer, “In just one session, Republicans managed to screw children, women, gays, immigrants, teachers, the elderly, Hispanics, the unemployed and the uninsured. The only people who got off easy were white guys. Can’t imagine why.”
The numbers tell the tale. Texas is dead last in the number of non-elderly women without health insurance, and 6th nationally in the percentage of women in poverty, according to the Texas Legislative Study Group. One in five Texas children lack health insurance, the highest rate in the nation. And if that weren’t bad enough, Perry tried to opt out of Medicaid, which provides healthcare to the most vulnerable Texas populations, including pregnant women and children.
When it comes to reproductive healthcare, the state budget guts family planning, leaving 284,000 Texas women without birth control or access to basic reproductive healthcare. This will also likely increase the abortion rate, sonograms or no sonograms. And of course there’s the standard right wing assault on Planned Parenthood. Women needing prenatal care fare no better.
As reported in the Texas Tribune, “Texas has the worst rate of pregnant women receiving prenatal care in the first trimester, according to the report commissioned by the Legislative Study Group…And though Texas has the highest percent of its population without health insurance, the state is 49th in per capita spending on Medicaid, and dead last in per capita spending on mental health, according to the report.”
So if you’re a working class Texas woman, Rick Perry doesn’t want you to have access to birth control or reproductive healthcare to prevent unintended pregnancy, but once you’re pregnant the state mandates a sonogram and a lecture to convince you of the error of your ways. After that sonogram and lecture, if you need prenatal care, you’re SOL. And once the baby is born, Texas is 47th in monthly benefit payments under the Women, Infants, & Children program, which provides nutrition assistance.
This is Rick Perry’s vision for women in the United States. Limited healthcare, little birth control, low income women and kids left to fend for themselves, a bunch of bureaucrats telling you what to do—and the very real human suffering that goes along with it. TWERP might be an understatement.
By: Laura Chapin, U. S. News and World Report, August 11, 2011
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