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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

August 12, 2011 Posted by | Affordable Care Act, Commerce Clause, Congress, Conservatives, Constitution, Consumers, Democracy, Democrats, GOP, Health Care, Health Care Costs, Health Reform, Ideologues, Ideology, Individual Mandate, Insurance Companies, Medicaid, Medicare, Politics, Pre-Existing Conditions, President Obama, Republicans, SCOTUS, Supreme Court, Under Insured, Uninsured | , , , , , , , , , , , , , , | Leave a comment

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

June 14, 2011 Posted by | Affordable Care Act, Conservatives, Democrats, GOP, Government, Governors, Health Reform, Ideologues, Ideology, Individual Mandate, Politics, Republicans, Right Wing, States, Under Insured, Uninsured | , , , , , , , , | Leave a comment

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

June 13, 2011 Posted by | Affordable Care Act, Congress, Conservatives, Consumers, Economy, GOP, Government, Health Care, Health Care Costs, Health Reform, Ideologues, Ideology, Insurance Companies, Lawmakers, Medicare, Politics, Public Health, Republicans, Right Wing, Seniors, Single Payer, Under Insured, Uninsured | , , , , , , , , , , , , , | 1 Comment

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

June 13, 2011 Posted by | Affordable Care Act, Class Warfare, Conservatives, Consumers, Elections, Equal Rights, GOP, Gov Chris Christie, Government, Health Care, Health Reform, Ideologues, Ideology, Medicaid, Middle Class, Planned Parenthood, Politics, Public Health, Republicans, Right Wing, Seniors, States, Taxes, Under Insured, Unemployed, Uninsured, Wealthy, Women, Women's Health, Womens Rights | , , , , , , , , , | 1 Comment

No Credibility Or Integrity: What McKinsey & Company Has To Hide

An outfit called McKinsey & Company released a report this week making all kinds of discouraging claims about the Affordable Care Act. According to the study, nearly a third of American businesses will stop offering health coverage to their employees as a result of the new reform law. Several news outlets pounced on the release of the report, as did many Republicans.

The White House’s Nancy-Ann DeParle, in a rather understated response, urged caution.

A central goal of the Affordable Care Act is to reduce the cost of providing health insurance and make it easier for employers to offer coverage to their workers. We have implemented the law at every step of the way to minimize disruption and maximize affordability for businesses, workers, and families. And we agree with experts who project that employers will continue to offer high quality benefits to their workers under the new law. This one discordant study should be taken with a grain of salt.

That’s putting it mildly.

McKinsey claims to have done a survey of 1,300 employers. How was it conducted? We don’t know and McKinsey hasn’t said. What were the questions? We don’t know and McKinsey hasn’t said. How were the employers chosen? We don’t know and McKinsey hasn’t said. What were the statistical breakdowns among businesses of different sizes? We don’t know and McKinsey hasn’t said.

Who funded the study? We don’t know and McKinsey hasn’t said.

Kate Pickert noticed a small tidbit in the report: McKinsey acknowledged having “educated” those participating in the survey. And what, pray tell, did the company say to respondents that might have affected the results? You guessed it: we don’t know and McKinsey hasn’t said.

Politico added today that it “asked really nicely” to at least see the questionnaire McKinsey used to conduct the employers survey, but the company refused.

Raise your hand if you think the McKinsey & Company report has some credibility problems.

But here’s the angle to keep an eye on. How soon will Republican talking points simply incorporate this highly dubious claim into all arguments about health care policy? That’s usually how this game works — sketchy outfit tells the GOP what it wants to hear; Dems point out how baseless the claim is, and the media presents the information in a he-said-she-said format, leaving the public to think “both sides” have merit.

Keep this in mind the next time you hear a Republican claim on television, “We recently learned that a third of American businesses will stop ensuring their workers.” It won’t be true, but that won’t matter.

By: Steve Benen, Contributing Writer, Washongton Monthly-Political Animal, June 9, 2011

June 10, 2011 Posted by | Affordable Care Act, Businesses, Conservatives, Democrats, GOP, Government, Health Care, Health Care Costs, Health Reform, Ideologues, Ideology, Politics, Public, Republicans, Right Wing, Under Insured, Uninsured | , , , , | Leave a comment

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