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 Has 2012 Trouble: Attacking Medicare And Social Security Could Be Death Of Republicans’ 2012 Hopes
Recent weeks have finally defined the race for the 2012 Republican presidential nomination. The field has finally achieved a greater level of clarity as many candidates have opted out, running the absurd-to-formidable gamut from Donald Trump to Mitch Daniels. A smaller number have opted in, running the has-been to may-never-be gamut from Newt Gingrich to Tim Pawlenty, not to mention former Massachusetts Gov. Mitt Romney, who officially entered the race yesterday.
A former Minnesota governor, Pawlenty officially joined the wannabe ranks last week with a speech aimed at defining himself as a fearless teller of hard truths (previously he had perhaps best been known for lacking any definition at all). This is smart on several levels. He quickly moved to fill the void left by Daniels, the governor of Indiana, whom many in the party had yearned for as a tough-minded fiscal hawk. And in part it is a strong bid for the mantel of not-Romney, the alternative to the former Massachusetts governor and current GOP front-runner. Romney is a laughably transparent flip-flopper, so Pawlenty’s new truth-teller frame could make him an ideal foil.
Politicians love to position themselves as tellers of hard truths, brave enough to boldly level with the voters. And the current tempestuous political climate, with its roiling discontent with politics as usual, especially lends itself to such a pose. Pawlenty is merely the latest candidate to seize this meme.
But his candidacy runs squarely afoul of Robert’s 13th rule of politics: People like the idea of hard truths and hard-truth tellers much more than they like the reality of them. You can ask straight shooters like Walter Mondale (“Mr. Reagan will raise taxes, and so will I. He won’t tell you. I just did.”), Paul “I’m not Santa Claus” Tsongas, and John “Straight Talk” McCain. Winning the presidency requires an aspirational element at odds with the doom-and-gloom that comes with those self-consciously trying to speak hard truths.
So kudos to Pawlenty for standing up to big ethanol in little Iowa. But while some may take off their hats to him for traveling to Florida in order to call for overhauls (read: cuts) of Social Security and Medicare, it might be merely to scratch one’s head. As Hot Air blogger Allahpundit quipped after Pawlenty’s Florida performance, “Alternate headline: ‘Pawlenty now unelectable in not one but two early primary states.’ ”
Maybe this is actually deep strategy. Many conservatives and Tea Partyers in particular seem intent these days on—as Ronald Reagan used to complain of some of his more gung-ho supporters—going “off the cliff with all flags flying.” Perhaps this is a clever way for Pawlenty to appeal to that “I’d rather lose being right” instinct.
An additional problem for would-be hard-truth tellers is that in the telling, these so-called truths often become vehicles for an even harder ideology. The attempt to conflate serious problems with ideologically inflexible and partisan solutions can create political tensions and open deadly political rifts. See the political abyss House Budget Committee Chairman Paul Ryan has marched his colleagues into over his plan to repeal and replace Medicare.
With the future insolubility of Medicare as a starting point, Ryan and the GOP have embarked on an emphatically ideological course. They hailed themselves as seriously facing a tough issue, and they spin the plan as an attempt to save the program, but all it would save would be the name “Medicare.” A guarantee of healthcare would be replaced with a voucher of diminishing value. If it fails to cover seniors’ costs . . . tough luck. The view was perhaps best summed up by Georgia GOP Rep. Rob Woodall, who chastised a constituent at a town hall meeting last month when she asked how, after Ryan’s reforms eliminated the guarantee of Medicare, she could expect to get medical coverage since she worked for a company that doesn’t offer it in their retirement package. “Hear yourself, ma’am,” he said. “You want the government to take care of you, because your employer decided not to take care of you. My question is, ‘When do I decide I’m going to take care of me?’ ”
Woodall, like many conservatives, fails to grasp why programs like Medicare were created. They were a response to a market failure—specifically an inability of senior citizens to get or pay for healthcare. But in Woodall’s world there are apparently no market failures; if seniors can’t get healthcare it’s because they simply won’t take responsibility for themselves. Of course in 1964, 44 percent of senior citizens had no health coverage, and the cost of medical bills had driven more than one third of them below the poverty line. If only they had had the moral fiber to take care of themselves!
Safe in a heavily conservative district, Woodall can spout such nonsense. But roughly 60 House Republicans represent districts Barack Obama won in 2008 and virtually all voted for the Ryancare overhaul. In this case, the gap between hard truths and hard ideology may be big enough to swallow a House majority.
Just ask the pollsters employed by the House GOP, who warned that the bill was a ticking time bomb, Politico reported last week. Or ask Jane Corwin, that bomb’s first casualty. She is the Republican who lost May’s special election in a GOP-leaning New York district in which the Ryan plan was the defining issue. Or ask Sens. Olympia Snowe, Susan Collins, Lisa Murkowski, and Scott Brown, four of the five Senate Republicans who fled the plan last week (the fifth, Rand Paul, opposed it as not being conservative enough).
Or ask Gingrich, the former House speaker who drew party-wide opprobrium when he dismissed the Ryan plan as being so much “right-wing social engineering.” Pity poor Newt: He was just trying to tell a hard truth.
By: Robert Schlesinger, U. S. News and World Report, June 3, 2011
Paul Ryan Supported Payment Advisory Boards Before He Was Against Them
During his series of 19 town halls in Wisconsin several weeks ago, Rep. Paul Ryan (R-WI) repeatedly criticized President Obama’s Independent Payment Advisory Board (IPAB) for “rationing” care to seniors, cutting Medicare, and denying care to current retirees. The IPAB is a 15-member commissionthat would make recommendations for lowering Medicare spending to Congress if costs increase beyond a certain point. The reductions would go into effect unless Congress acts to stop them.
“[Obama’s] new health care law…puts a board in charge of cutting costs in Medicare,” Ryan told retirees at one town hall in Kenosha, Wisconsin in late April, arguing that the IPAB would “automatically put price controls in Medicare” and “diminish the quality of care for seniors.”
But as the Incidental Economist’s Don Taylor reports this morning, Ryan has previously introduced legislation that included a very similar board to control health care spending. In 2009, Ryan introduced the Patients’ Choice Act (PCA) which “proposed changing the tax treatment of private health insurance and providing everyone with a refundable tax credit with which to purchase insurance in exchanges” but also sought to establish “two governmental bodies to broadly apply cost effectiveness research in order to develop guidelines to govern the practice of, and payment for, medical care.” Taylor writes that “the bodies proposed in the PCA had more teeth, including provisions to allow for penalties for physicians who did not follow the guidelines, than does the Independent Payment Advisory Board (IPAB) that was passed as part of the Affordable Care Act.” Both the Health Services Commission and Forum for Quality and Effectiveness in Health Care was tasked with developing guidelines and standards for improving health quality and transparency and were afforded what the bill called “enforcement authority”:
(b) ENFORCEMENT AUTHORITY.—The Commissioners, in consultation with the Secretary of Health and Human Services, have the authority to make recommendations to the Secretary to enforce compliance of health care providers with the guidelines, standards, performance measures, and review criteria adopted under subsection(a). Such recommendations may include the following, with respect to a health care provider who is not in compliance with such guidelines, standards, measures, and criteria: (1) Exclusion from participation in Federal health care programs (as defined in section 1128B(f) of the Social Security Act (42 U.S.C.1320a–7b(f))).(2) Imposition of a civil money penalty on such provider
Like the IPAB, Ryan’s board is insulated from Congress and would have allowed true health care cost experts — the Forum for Quality and Effectiveness in Health Care even included 15 individuals, just like the IPAB although they do not appear to require Senate confirmation — to improve the cost effectiveness of the health care system. As Taylor observed back in 2009 when the board was first introduced, “any such effort will undoubtedly be called rationing by those wanting to kill it, and quality improvement and cost-effectiveness by those arguing for it. Whatever we call it, we must begin to look at inflation in the health care system generally and in Medicare in particular.” Little did we know that Ryan would be on both sides of that debate.
By: Igor Volsky, Think Progress, May 13, 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
Health Reform in Massachusetts: Self-Serving For Mitt But Also True
Mitt Romney’s defense of the Massachusetts health care reforms was politically self-serving. It was also true.
Despite all of the bashing by conservative commentators and politicians — and the predictions of doom for national health care reform — the program he signed into law as governor has been a success. The real lesson from Massachusetts is that health care reform can work, and the national law should work as well or even better.
Like the federal reform law, Massachusetts’s plan required people to buy insurance and employers to offer it or pay a fee. It expanded Medicaid for the poor and set up insurance exchanges where people could buy individual policies, with subsidies for those with modest incomes.
Since reform was enacted, the state has achieved its goal of providing near-universal coverage: 98 percent of all residents were insured last year. That has come with minimal fiscal strain. The Massachusetts Taxpayers Foundation, a nonpartisan fiscal monitoring group, estimated that the reforms cost the state $350 million in fiscal year 2010, a little more than 1 percent of the state budget.
Other significant accomplishments:
The percentage of employers offering insurance has increased, probably because more workers are demanding coverage and businesses are required to offer it.
The state has used managed-care plans to hold down the costs of subsidies: per capita payments for low-income enrollees rose an average of 5 percent a year over the first four years, well below recent 7 percent annual increases in per capita health care spending in Massachusetts. The payments are unlikely to rise at all in the current year, in large part because of a competitive bidding process and pressure from the officials supervising it.
The average premiums paid by individuals who purchase unsubsidized insurance have dropped substantially, 20 percent to 40 percent by some estimates, mostly because reform has brought in younger and healthier people to offset the cost of covering the older and sicker.
Residents of Massachusetts have clearly chosen to tune out the national chatter and look at their own experience. Most polls show that the state reforms are strongly supported by the public, business leaders and doctors, often by 60 percent or more.
There are still real problems that need to be solved. Small businesses are complaining that their premiums are rising faster than before, although how much of that is because of the reform law is not clear.
Insuring more people was expected to reduce the use of emergency rooms for routine care but has not done so to any significant degree. There is no evidence to support critics’ claims that the addition of 400,000 people to the insurance rolls is the cause of long waits to see a doctor.
What reform has not done is slow the rise in health care costs. Massachusetts put off addressing that until it had achieved universal coverage. No one should minimize the challenge, but serious efforts are now being weighed.
Gov. Deval Patrick has submitted a bill to the Legislature that would enhance the state’s powers to reject premium increases, allow the state to limit what hospitals and other providers can be paid by insurers, and promote alternatives to costly fee-for-service medicine. The governor’s goal is to make efficient integrated care organizations the predominant health care provider by 2015.
The national reform law has provisions designed to reduce spending in Medicare and Medicaid and, through force of example, the rest of the health care system. Those efforts will barely get started by the time Massachusetts hopes to have transformed its entire system. Washington and other states will need to keep a close watch.
By: Editorial, The New York Times, May 20, 2011
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