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Do Republicans Really Oppose Making Health Care Insurance Cheaper?

The health-care debate has a cyclical nature, and I don’t want to keep writing the same posts over and over again. So rather than write a whole new piece on the GOP’s rediscovery of the Congressional Budget Office’s estimate that the health-care law will reduce the labor supply (which they recast as “destroying jobs”), I’ll just link to the long post I did on the subject in January.

In case you don’t want to click over, though, the short version is this: If you make health-care insurance cheaper and make it harder for insurance companies to deny people coverage, then a certain number of people who would like to leave the labor force but can’t afford or access health-care insurance without their job will stop working.

To understand why, imagine a 62-year-old woman who works for IBM and beat breast cancer 10 years ago. She wants to retire. She has the money to retire. But no one will sell her health care under the status quo. Under the health-reform law, she can buy health care in an exchange because insurers can’t turn her away due to her history of breast cancer. So she’ll retire. Or imagine a 50-year-old single mother who wants to home-school her developmentally disabled child but can’t quit her job because they’ll lose health care. The subsidies and the protections in the Affordable Care Act will give her the option to stop working for awhile, while under the old system she’d need to stick with her job to keep her family’s health-care coverage. That’s how health-care reform can reduce the labor supply. If either case counts as a destroyed job, then so does my winning the lottery and moving to Scotland in search of the perfect glass of whiskey.

Moreover, this would happen for any health-care reform that reduced costs and improved access. So when Republicans say that they want a better health-care reform bill that does even more to reduce costs, they’re calling for legislation that, according to them, would “destroy” even more jobs than the Affordable Care Act. If they’re against all legislation that might destroy jobs in this way, then they’re against making health care cheaper. In fact, by that logic, we could just jack the price of health-care insurance up and make it easier for insurers to turn individuals away. Then even more people would have to stick with their employers. Job creation!

By: Ezra Klein-The Washington Post, February 11, 2011

February 12, 2011 Posted by | Affordable Care Act, Health Reform | , , , , , , , , , , , , , | Leave a comment

Commerce Clause Challenges To Health Care Reform

The following article, forthcoming in U. Penn. L. Rev., pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance:   http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747189

Among the key points I make in defense of this federal law are:

1. The “commerce” in question is simply health insurance, and not the non-purchase of insurance as challengers have framed it.  Because “regulate” clearly allows both prohibitions and mandates of behavior, mandating purchase is lexically just as valid an application of the clause as is prohibiting purchase or mandating the sale of insurance.

2. Although existing precedent might allow a line to be drawn between economic activity and inactivity, there is no reason in principle or theory why such a line should be drawn in order to preserve state sovereignty.  Purchase mandates, after all, are as rare under state law as under federal law.

3. Challengers do not seriously dispute the constitutional validity of the ACA’s regulation of insurers or the economic necessity of the mandate in order for that regulation to be effective.  In fact, they essentially concede the mandate’s necessity by asking to strike the entire law if it is declared invalid.  Accordingly, the mandate would pass the tests for constitutional necessity articulated by at least seven of the Justices in the Comstock opinion last year, and might even pass the necessity test embraced by Justices Thomas and Scalia.

4. An important challenge, not yet clearly discussed by court opinions to date, is that the mandate does not, strictly speaking, simply “carry into execution” Congress’ other regulatory powers, but is the exercise of a distinct power.  However, both modern and historical precedents under the Necessary and Proper Clause are not limited narrowly to merely implementation measures.  Both Comstock and a series of decisions under the Postal Power are good examples to the contrary since they authorize independent federal powers that expand the range of purposes and measures permitted by express Congressional powers.

5. There is no coherent basis for declaring a purchase mandate to be constitutionally “improper,” and a categorical ban on regulating inactivity would contradict the implicit reasoning underlying several other established precedents — such as those upholding the draft and the Congressional subpoena power.   Also, federal eminent domain allows compelled transactions justified in part by the Necessary and Proper clause’s expansion of the commerce power, when applied, for instance, to citizen’s refusal to sell land for use in constructing highways, bridges, and canals.

6. Using the 10th Amendment to justify a categorical prohibition of purchase mandates (as Randy Barnett has argued) would be no more convincing than using the 9th or 5th Amendments (substantive due process).  Instead, such a move would, for the first time and contrary to precedent, make the 10th a protector of individual liberties rather than just federalism concerns, and would radically enforce an absolute right to economic liberty, regardless of level of legislative justification or judicial scrutiny (see point 9).

7. Slippery slope concerns are no greater here than for any other of a range of expansive federal powers.  Instead, the novelty of the mandate subjects it to greater political constraint, and so “parade of horribles” concerns may be even more unrealistic than similar settings where the Court has rejected them.

8. Grounding the mandate in the Necessary and Proper clause helps to confine its precedential effect by emphasizing it’s necessary role in the ACA’s particular regulatory scheme that, in other respects, clearly resides within the core of the conventional commerce power.  This essential supportive and interconnected role is not shared by free-standing mandates to purchase American cars or broccoli, for instance.

9. Counteracting imaginary slippery slope concerns about absurd hypothetical laws are the legitimate concerns about insurmountable barriers that a prohibition of purchase mandates would erect.  Forbidding Congress from any purchase mandate could cripple necessary efforts, for instance, to require preventive measures in the face of a massive pandemic that threatened tens of millions of lives.

By: Mark Hall, Professor of Law, Wake Forest University School of Law: Originally published in Health Reform Law, January 26, 2011.

February 10, 2011 Posted by | Affordable Care Act, Health Reform, Individual Mandate | , , , , , , , , , | Leave a comment

The Real Threat to Health Care Reform….It’s Not The Supreme Court

Will the Supreme Court overturn the part of the health-care law that penalizes people who don’t buy insurance for themselves? A few months ago, the answer that experienced Court-watchers gave was “not a chance.” Orin Kerr, a law professor at George Washington University who once clerked for Justice Anthony Kennedy, said “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” Now, the best we can say is, who knows?

As Slate’s legal columnist Dahlia Lithwick has said, the conventional wisdom has turned sharply. “Today,” she writes, “it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision.”

That could mean we were wrong a few months ago, or it could mean we’re wrong now. But it doesn’t matter. Replacing the individual mandate wouldn’t be particularly hard. All we need is another policy that does the same thing – specifically, discourage free-riders who don’t want to buy insurance until after they get sick and thus leave the rest of us paying for them.

In fact, I can give you four credible alternatives in four sentences:

We could limit enrollment changes to once every two years, so people who decide to go without insurance can’t buy coverage the moment they get a bad report from their doctor.

We could penalize those who wait to buy coverage with higher premiums, which is what we do in the Medicare Prescription Drug Benefit.

We could have a five-year lockout, in which people who decide to go without coverage wouldn’t be able to access the subsidies or insurance protections for five years, even if they decided they wanted to buy insurance.

We could raise taxes by the same amount as the individual mandate penalty and give everyone who showed proof of insurance on their tax forms a “personal responsibility tax credit” of the same amount.

But all these ideas suffer the same problem: They’d need to pass through Congress. And Republicans in Congress don’t want to make the Affordable Care Act better. They want to repeal it.

This – and not the Supreme Court, or even any flaws in the design of the bill – is the real problem for the Affordable Care Act. Like any major piece of legislation, parts of it will work much better than we expect, and parts of it will disappoint us. Perhaps the experiment with paying hospitals a flat fee to treat a patient’s diabetes will prove a smashing success, leading to lower costs and higher-quality care. And perhaps the provision allowing individuals to publicly rate their insurers will prove a disaster, with companies paying the computer-savvy to rig the ratings.

In that world, the answer would be obvious: Expand the good and repeal the bad. Indeed, we should expect to do this over and over again. We’ll constantly need to double down on what works, remove what doesn’t, and add new ideas and refinements into the mix. Policymakers are never omniscient, but they are, at their best, persistent. And that’s how we’ll move from the inefficient and expensive health-care system we have to the efficient and affordable system we want: one tweak at a time.

That assumes, however, that both parties’ top priority is to get from the system we have to the system that the Affordable Care Act suggests we want: a system with lower costs and near-universal care. But is it?

Increasingly, it seems not. The Democrats have a deep and longtime commitment to health-care reform, one they’ve proven by moving continually right on the issue in a fruitless search for bipartisan support. They’ve given up on single-payer, on an employer mandate, on a public option. And they adopted the same structure that Mitt Romney signed in Massachusetts and that Republicans called for in 1994.

Republicans, meanwhile, have proven deeply and continually committed to opposing health-care reform bills pushed by Democrats. They abandoned Richard Nixon’s idea when Bill Clinton adopted it and Romney’s idea when President Obama endorsed it. In the most recent election, they ran on “repeal and replace,” but when they got to Congress, they voted on a bill that included the “repeal” but was silent on the “replace.” Even now, they’ve done nothing more than vaguely direct some committees to come up with some unspecified ideas at some unnamed date in the future.

Their inattention to “replace” is evidence that their top priority is “repeal.” But they don’t have the votes to repeal the bill. They might not have the votes to repeal it after 2012, either. But so long as they’re telling their base that they will repeal it, if not today then soon, they can’t participate in any significant reforms of the bill, as improving the legislation tacitly accepts its existence. “I think it’s clear that this is an area upon which we are not likely to reach any agreements with the president,” Senate Minority Leader Mitch McConnell told conservative radio host Laura Ingraham.

Democrats, meanwhile, aren’t becoming any friendlier to the GOP’s repeal efforts. Of the 13 House Democrats who voted against the law and survived the election, only three voted with the House Republicans to repeal the bill. In the Senate, not a single Democrat voted for repeal.

This raises the possibility that Congress will neither repeal the legislation nor commit itself to its success. Rather, Republicans will work to hobble it where they can, starving the law of the funds needed for its implementation, harassing the regulators charged with setting it up and stopping Democrats from improving on the law’s successes or responding to its inevitable failures. Democrats will work to ensure that the law survives, but they won’t have the votes to do much more than that.

Wounded, the law will limp along, protected from dying and prevented from thriving.

By: Ezra Klein-The Washington Post, February 8, 2011

February 9, 2011 Posted by | Affordable Care Act, Health Reform | , , , , , , , , , , , , | Leave a comment

The Fight Over The Individual Mandate Is Not About Liberty

Whatever the legal argument about the individual mandate is about, it’s not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan’s former solicitor general, put this well at Wednesday’s Senate Judiciary Committee hearing.

“As I recall,” he said, “the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional.”

I’d disagree slightly with Fried’s characterization of the policy debate — the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate — but on the law, even the panel’s anti-mandate witnesses agreed with his characterization of the single payer’s legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, “All conservatives, I’d imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well).”

There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government’s coverage. That doesn’t make it more constitutional, of course. But it does suggest that the dividing point isn’t liberty.

When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.

Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate — and I mean mere months before — Sen. Chuck Grassley (R-Iowa) said there was “bipartisan consensus” around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate’s Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn’t see the individual mandate as a threat to liberty, and they weren’t constantly emphasizing that it was a tax rather than a penalty.

The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.

By: Ezra Klein, The Washington Post, Posted February 2, 2011

February 8, 2011 Posted by | Affordable Care Act, Individual Mandate | , , , , , , , , , , , , , , | Leave a comment

Remember The Uninsured?

In February 2007, Deamonte Driver died of an infected tooth. But he didn’t really die of an infected tooth. He died because he didn’t have consistent insurance. If he’d had an Aetna card, a dentist would’ve removed the tooth earlier, and the bacteria that filled the abscess would never have spread to his brain.

Deamonte Driver was 12. His insurance status wasn’t his fault.

If all you knew about the Affordable Care Act was what you gleaned from watching the Republicans make their case against it, you probably would not know that the legislation means health-care coverage for more than 30 million Americans. Or, if you did know that, you’d be forgiven for not realizing it’s relevant: It almost never gets mentioned (see this congressman’s rundown of the bill’s contents, for instance), and the repeal legislation the Republicans are pushing does nothing to replace the coverage the Affordable Care Act would give to those people.

The lack of concern for how more than 30 million Americans will get their health-care coverage makes for an ugly contrast with the intense concern that Rep. Andy Harris — a proponent of repeal — found when he heard that his congressional health-care coverage wouldn’t begin until a month after he took the oath of office. “He stood up and asked the two ladies who were answering questions why it had to take so long, what he would do without 28 days of health care,” recalled one of the session’s attendees. He knows his taxpayer-subsidized insurance is important. But what about Driver’s?

We have a tendency to let the conversation over health-care reform become a bloodless, abstract discussion over cost curves and CBO models. We do that for two reasons: First, cost is important. Second, it’s important to the people who have political power, which is, by and large, not the same group who doesn’t have health-care insurance. Someone involved in the 2008 campaign once told me he’d seen numbers showing that 95 percent of Obama’s voters were insured. The numbers for McCain were, presumably, similarly high, or even higher. These are the people the political system is responsive too.

But that doesn’t make the plight of the uninsured any less wrenching. The Urban Institute estimated that 22,000 people died in 2006 because they didn’t have health-care insurance. John Ayanian, a professor of medicine and health-care policy at Harvard Medical School, testified before Congress on this issue. “Uninsured adults are 25 percent more likely to die prematurely than insured adults overall,” he said, “and with serious conditions such as heart disease, diabetes or cancer, their risk of premature death can be 40 to 50 percent higher.” And none of that takes into account the unnecessary suffering and physical damage that flourishes in the absence of effective medical care. Nor does it speak to the economic devastation that illness unleashes on uninsured families.

These numbers shouldn’t surprise us: We pay a lot of money for health-care insurance. We’ve directed the government to spend even more money subsidizing that insurance for the elderly, the disabled, some of the poor and everyone who gets health-care coverage through their employer. We value this product so highly for a reason: Most of us would agree that being able to afford to see a doctor isn’t a luxury. It’s a necessity. Rep. Harris certainly feels that way.

The same goes for the uninsured. In fact, it’s often more true for them, as many haven’t received reliable care for some time and have multiple health problems that haven’t been effectively treated. That’s why, when a temporary free clinic set up shop in Los Angeles, 3,000 people lined up for treatment. It’s why the famed RAND health insurance experiment found the people who benefited from insurance most clearly were the poor, as they were often plagued by easy-to-treat conditions like hypertension.

The Affordable Care Act covers the vast majority of the uninsured. It covers everyone who makes less than the poverty line, and almost everyone who makes less than 300 percent of the poverty line. It does all this while spending about 4 percent of what our health-care system currently spends in a year, and it offsets that spending — and more — to make sure the deficit doesn’t bear the burden of society’s compassion. Perhaps there’s a better way to achieve those goals that can pass Congress. If so, I’m open to hearing about it. But to repeal the bill without another solution for the Deamonte Drivers of the world? And to do it while barely mentioning them? We’re a better country than that. Or so I like to think.

By: Ezra Klein, The Washington Post, January 19, 2011

January 27, 2011 Posted by | Affordable Care Act, Uninsured | , , , , , , , , , , , | Leave a comment

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