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
How The Budget Deal Affects The Affordable Care Act
So how does this mammoth budget-cutting deal, with its congressional “supercommittee” affect health reform?
Good question, because lots of people in Washington are asking it too.
More specific answers will become clearer in the next few weeks, but here’s a first version of the road map to both the policy and the politics.
First, understand there are two different processes – and each, separately, aims at cutting more than $1 trillion over the next decade.
The one that you’ve probably heard most about is the “supercommittee” of 12 members of Congress. They are supposed to identify savings by Thanksgiving. Entitlements – Medicare, Medicaid, Social Security and aspects of the Affordable Care Act – are part of their turf. So are taxes and revenue – at least in theory. It’s not so clear that the Republicans see it that way given the public statements of Congressional leaders.
If they agree on some kind of grand deal by Thanksgiving, Congress has to take it or leave it by the end of December, eliminating the usual congressional dilly-dallying. (It looks like dilly-dallying to the casual observer or much of the public, but remember that all that arcane, tedious process IS policy in Congress. If you slow something down, make it go through hoops, amend it, hold it up, etc., it doesn’t become law. That may be good or, depending on your point of view, bad politics.)
If Congress takes any recommendations that the supercommittee agrees on, that’s the law. If the committee fails, or Congress rejects it, then the “trigger” gets pulled. The official name is “sequestration.” That’s a fancy name for automatic cuts – 2 percent across-the-board cuts in Medicare, for instance, affecting all health care providers, doctors, hospitals, etc. It won’t affect beneficiaries – at least not directly.
Medicaid is not subject to the trigger. Neither, according to the preliminary interpretations I’ve received from analysts and congressional staff, are the big, key subsidies in the health care reform law – the Medicaid expansion and the subsidies that will help low-income and middle-income people afford health care in the new state exchanges.
Other parts of the health reform law are, however, subject to automatic cuts. Among them: Cost-sharing subsidies for low-income people. This isn’t the help paying the premium; this is the help with the co-pays when people do get care. But the payments are made to health plans, not directly to beneficiaries so it won’t have the direct impact of discouraging care. It may affect how health plans make decisions about what markets to participate in. Gary Claxton and Larry Levitt at Kaiser Family Foundation explain here.
Also, the supercommittee could have a partial deal – meaning there’s still a trigger, but a smaller one. Maybe they won’t reach agreement on $1.2 trillion to $1.5 trillion in savings, which would avoid the trigger. But maybe they could agree on, say, $500 billion. That means a trigger wouldn’t have to go as deep because some of the savings would already be identified.
To recap – before we go on to the second stage of this process: The “super-committee” can do whatever it wants to health care, Medicare, Medicaid, Social Security, etc. – if it can agree, if it can get the rest of Congress to agree and if the president doesn’t veto it.
Will the Democratic Senate and the Obama White House agree to cuts that eviscerate health reform? Not likely. In fact, the Democrats “won” on very few aspects of the budget/debt deal. Walling off Medicaid and key parts of the health coverage expansion were two of the “wins.” That’s a bright line worth paying attention to as this moves forward.
Does that mean other health-reform related spending will be untouched? Given how many moving parts there are to any spending deal, and the fact that defense and tax policy are also part of the mix, chances are it will be affected. But expect to see that bright line remain visible – maybe not quite as bright, but visible. (The CLASS Act, the voluntary long-term care program created under health reform, is a different story; it’s quite vulnerable.)
The second part is the annual appropriations process. The budget deal provides for cuts – real cuts in spending, not just slowing the rate of growth. Health programs (aspects of the health reform legislation touching on exchange creation, prevention, community clinics, etc., and just about everything else at the Department of Health and Human Services – the FDA, NIH, CDC, etc. – will be subject to these cuts. But this isn’t an across the board process, it’s a line-by-line, or at least category/agency-by-category/agency, process. And there is some horse trading.
It’s safe to say that the Republicans will try to cut discretionary portions of the new health law. That’s not a new political dynamic, it doesn’t arise out of the debt ceiling or the Wall Street woes. It’s what we’ve seen since last fall’s elections and the repeal/defund fights of the past few months. And House Budget Chairman Paul Ryan has publicly tried to insert health care into any potential deal. So expect to see more Republican push to cut, and continued Democratic push back. Will health spending emerge unscathed? It’s too soon to know but, given the amount of savings Congress needs to find –both in this budget deal and in the perennial quest to fund the “doc fix” payments – some cuts are clearly possible. Some of it may affect aspects of exchange establishment, regulation, prevention, public health, etc. But it’s hard to see the Democrats allowing cuts so deep that they basically constitute a side door to repeal.
One further twist – some Republicans are calling for a delay in health reform implementation to save money.”Delay” may sound better to an ambivalent public worried about spending than “repeal.” What’s delayed (if anything), how it’s delayed, how long it’s delayed, and what stopgaps are created in the meantime could have an impact on how many people get covered in 2014.
Assorted committees and government agencies are still examining the new budget law and how it will affect … everything. So the perspective I’ve outlined here – and I’m writing amid all the market turbulence – may change as the economic and political climates change. But the lines in the sand around the trigger – health reform, Medicaid and Social Security – tell us something about where the White House will come down.
By: Joanne Kenen, Association of Health Care Journalists, August 10, 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
GOP Supported Individual Mandate To Prevent ‘Government Takeover’ Of Health Care
The Los Angeles Times’ Noam Levey looks at the history of the individual health insurance mandate and discovers that not only was the provision designed by Republicans as an alternative to President Bill Clinton’s health care reform plan in the 1990s, but it was specifically seen as a way to prevent a “government takeover” of health care:
“We were thinking, if you wanted to achieve universal coverage, what was the way to do it if you didn’t do single payer?” said Paul Feldstein, a health economist at UC Irvine, who co-wrote the 1991 plan with Pauly.
Feldstein and Pauly compared mandatory health insurance to requirements to pay for Social Security, auto insurance, or workers’ compensation.
So too did the Heritage Foundation’s Stuart Butler, who in 1989 wrote a health plan that also included an insurance requirement.
“If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate, but society feels no obligation to repair his car,” Butler told a Tennessee health conference that year.
“But healthcare is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance.… A mandate on individuals recognizes this implicit contract,” said Butler, who was the foundation’s director of domestic policy studies.
Levey notes that fully a third of Republicans supported a bill that included a national individual requirement, introduced by then-Senator and current Rhode Island Gov. Lincoln Chafee. Sens. Bob Dole (R-KS), Charles Grassley (R-IA), Orrin Hatch (R-UT), and Richard Lugar (R-IN) all backed that measure. The National Federation of Independent Business, a conservative small-business group, even “praised the bill ‘for its emphasis on individual responsibility.’”
And this wasn’t some fluke of the ’90s either. As recently as 2007, “[t]en Republican senators — including Tennessee’s Lamar Alexander, now a GOP leader — signed on to a bill that year by Bennett and Sen. Ron Wyden (D-Ore.) to achieve universal health coverage.” The legislation penalized individuals who did not purchase insurance coverage.
Listing all of the GOP presidential candidates who have previously supported the mandate (Romney, Gingrich, Huntsman, Pawlenty) would only belabor the point, which is that the GOP’s new-found religion on the mandate and its constitutionality is driven by the political need to unravel the Democrats’ crowning social achievement, not any great concerns about policy, constitutionality, or freedom.
By: Igor Volsky, Think Progress, May 31, 2011
Insurance Companies: Guarding Health Is Not Their Business, But It Is Ours
If for one moment anyone has the notion that for-profit health insurance companies are in the business of guarding the health (or wealth) of policyholders, that notion ought to be quickly dismissed in favor of the truth. For-profit health insurance giants guard profits.
I arrived outside the WellPoint annual shareholders meeting in a hotel in Indianapolis yesterday to be greeted by more guards (and some armed) than I have seen surrounding President Obama at times. Apparently just the prospect of having some of the legal shareholders question the business practices and ethics of the WellPoint board and CEO Angela Braly was very scary for the company and its elite leaders.
Some of the shareholders have in recent years put forward a resolution supporting WellPoint’s return to its non-profit roots. After last year’s meeting, the resolution earned 9.6 percent or 30,000,000 shareholder votes. The current leadership doesn’t like that nor do they like the efforts of the shareholders who keep challenging them.
One shareholder asked Ms. Braly at yesterday’s tightly controlled and guarded meeting, as a sort of speakers’ “shot clock” counted down her speaking time, “Tell me, Ms. Braly, could you please explain what you do that warrants a salary ($13.5 million annually) that is more than 375 public school teachers in Indiana earn?” Braly’s answer was a classic. No shot-clock running for the CEO as she explained that the board sets her compensation and it has to be competitive with the other comparable giants in the insurance industry. It is a breathtaking demonstration of greed and hubris.
I wondered how we have allowed this country to amble onward to the point where 1,275 Americans who carry health insurance go bankrupt every single day (if the courts stayed open seven days a week) while an insurance company CEO like Angela Braly pockets $140,000 for her day’s salary. Every day.
That’s quite a lot of money that doesn’t go to healthcare. That’s quite a lot of money for one person to earn in one day. That may be why such scary guards are needed outside WellPoint shareholder meetings – they wouldn’t want CEO Braly to have to mix it up with any of the policyholders or others who might question too directly what value the for-profit health insurance industry adds to the U.S. healthcare system. I also wondered how much money those guards cost. And the shot clocks to keep pesky questions to a minimum? And how about the pro-Angela and pro-profit softball questions planted in the room?
WellPoint, like the other major insurance giants, can claim the best profits ever this year. Times are good at the top. Things are not so good for millions of Americans who want for decent healthcare within a system that provides a progressively financed, single standard of high quality care. Medicare for all would be nice. The American Health Security Act of 2011, S915/HR1200 as offered by Sen. Bernie Sanders, I-VT, and Rep. Jim McDermott, D-WA, provides a model for moving forward. Public financing (yes, a single payer system) coupled with public and private delivery (not a single provider). No insurance giants paying huge board compensations and CEO salaries. No armed guards protecting the profit.
Outside the City Market in Indianapolis, in the rain and with no need for guards, the advocates of healthcare sanity gathered – and I was thrilled to be among the Hoosiers for a Commonsense Health Plan. We affirmed our commitment to the work ahead and to one another. We sang. We are shareholders in a society that values more than profit – we value behaving justly and humanely, and we’d like a healthcare system that reflects that.
Forgive my repetition of the theme, but health insurance is not healthcare. Health insurance is a financial product. Health insurance is a financial product sold to protect health and wealth which may well do neither. Health insurance is a defective financial product for millions of people who made what we felt were responsible decisions about protecting ourselves and our families from financial or health disaster with health insurance products that have loopholes and flaws big enough to leave thousands dead every year and hundreds of thousands bankrupt.
I will never have the salary or earnings of insurance CEOs like WellPoint’s Angela Braly. That’s OK by me because I’ll also, I hope, never need guards to keep those I have harmed and those I would harm from questioning me about why. But, my life and the lives of my loved ones, my neighbors and my friends are surely as valuable in terms of access to healthcare in America in 2011. The day will come.
By: Donna Smith, CommonDreams.org, May 18, 2011
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 