Healthcare merry-go-round

[Long Run]

Wonder why people get cynical about the independent judiciary.

WASHINGTON – President Barack Obama's historic health care overhaul hit its first major legal roadblock Monday, thrown into doubt by a federal judge's declaration that the heart of the sweeping legislation is unconstitutional. The decision handed Republican foes ammunition for their repeal effort next year as the law heads for almost certain eventual judgment by the U.S. Supreme Court.

The ruling by U.S. District Judge Henry E. Hudson, a Republican appointee in Richmond, Va., marked the first successful court challenge to any portion of the new law, following two earlier rulings in its favor by Democratic-appointed judges.
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The law's central requirement for nearly all Americans to carry insurance is unconstitutional, well beyond Congress' power to mandate, Hudson ruled, agreeing with the argument of Virginia's Republican attorney general — and many of the GOP lawmakers who will take control of the U.S. House in January. Hudson denied Virginia's request to strike down the law in its entirety or block it from being implemented while his ruling is appealed by the Obama administration.

http://news.yahoo.com/s/ap/20101214/ap_ ... e_overhaul

I think there are probably ways around this issue, one being to use federal dollars to make states adopt the provision. This provision is very important to the overall healthcare reform law since without requiring everyone to have coverage, you can't really get rid of pre-existing conditions, or mandate certain levels of care for group plans.

[Gob]

Wonder why people get cynical about the independent judiciary.

.

Wonder why we foreign folk are cynical about the US political system's ability to organise a piss up in a brewery?

[Sue U]

Yeah, this judge found that the law overstepped the Commerce Clause, in a ruling that goes against the last 73 years of constitutional law. Haha, take that, Mr. Roosevelt!

[Lord Jim]

Two other courts have ruled the other way, (both Clinton appointees, btw)

The bottom line is, as everyone has known from the very beginning of this, these issues aren't going to be settled until the Constitutionality of this legislation is ruled on by The Supremes....

[Sue U]

That's true, and this latest ruling will go up to the Fourth Circuit, widely regarded (for good reason) as the most far-right conservative bench in the country. So affirmance is pretty much guaranteed.

Why isn't the GOP/Fux News/Teabagger/wingnut-frother claque out massing their Hoverounds in the streets to protest this blatant judicial activisim contravening conservative principles of deference to legislative will? Oh, that's right -- this is a result they like.

[Long Run]

Yeah, this judge found that the law overstepped the Commerce Clause, in a ruling that goes against the last 73 years of constitutional law.

Having read the opinion, I don't find that it goes against any existing authority, but reasonable minds can differ on whether such authority supports extending the Commerce Clause in this case. The crux is whether Congress has the right to compel someone to buy health insurance. Every other case that extended the Commerce Clause (not without disputes at the time, and even now), covers whether an activity voluntarily undertaken by the individual or business impacts interstate commerce. This is a key distinction and could lead to an overruling of the personal mandate.

If Congress can tell people they have to buy health insurance, why can't it require everyone to buy a bus pass to support public transportation since everyone uses some form of transportation? Or why can't it require everyone to rent or buy a dwelling space since failure to do so impacts the housing market?

The necessary implications should be considered before being in favor one ruling or another. As I said before, Congress could avoid the whole Constitutional issue by having the states impose the personal insurance mandate since the states have authority to do so (absent a state constitution problem). This is how Congress often deals with getting the regulation it wants when there is a potential challenge on Constitutional grounds.

Overruling the legislature is one form of judicial activism. Another form of judicial activism is extending the reach of the Constitution beyond what it has previously allowed. As a result, a decision one way or the other in this matter will be "judicial activism".

[Lord Jim]

Excellent summary of the issues involved here, Long Run.

[Scooter]

I don't see how it can be legal for the federal gov't to require the purchase of health insurance (Medicare) for when they are over 65 by paying FICA, and yet illegal for the federal gov't to require the purchase of health insurance for when they are under 65.

[oldr_n_wsr]

Does the gov "make" you buy medicare? or are we just taxed on money earned to support medicare? Can't someone opt-out of medicare if they have a better plan?

[@meric@nwom@n]

Actually from what I have read you are forced at age 65 to take Medicare with your retirement. In fact some have claimed to have lost superior coverage on account of the Medicare. I do know though that you have to work at least 110 days at a job to be able to qualify for Medicare.

[Sue U]

Your private employment-based health plan most likely requires you to sign up for Medicare (traditional A/B) or Medicare-substitute (Part C) coverage upon retirement; if you're still an active employee when you become Medicare-eligible your plan has to cover you in the same way as every other employee until you do retire. Nothing in the law requies you to enroll in a Medicare program, but you'll be hard pressed to find/buy truly "private" health insurance once you reach your supposed "golden years."

My understanding of the new healthcare law was not that people would be forced to buy coverage, but that they would be subject to a tax if they didn't have coverage.

[oldr_n_wsr]

I just googled around and it seem you do NOT have to sign up for medicare (any other policy provisions not considered) however, there could be penalties up to 10% for each year after 65 you don't sign up when/if you finally do sign up.

So it seems to me to be a little different case than *ObamaCare. While medicare is happy to take a percentage of your earned money, you are not "forced" nor face a penalty if you do not sign up (you just pay money and get nothing which is a lot of what happens with taxes anyway). ObamaCare is making you pay a fine if you refuse to sign up.

* I am not making "fun" of the HC plan as I have not read the details, it's just easier to refer to this way.

[Gob]

I love the way you guys elect a govt to run the country for you, (and a president whose job is to make pretty speeches and argue with the govt,) then you ignore what they put into law, and all run around like headless chickens with courts and judges and all the other hoo haa, which basically ends up with sod all being done, (apart from when you want to invade other countries.)

It's sweet and keeps you out of mischief.

[Scooter]

So it seems to me to be a little different case than *ObamaCare. While medicare is happy to take a percentage of your earned money, you are not "forced" nor face a penalty if you do not sign up (you just pay money and get nothing which is a lot of what happens with taxes anyway). ObamaCare is making you pay a fine if you refuse to sign up.

So if you are forced to pay insurance premiums (via FICA) for insurance that you might or might not use, that is constitutional. But paying a penalty if one chooses not to get insurance is not constitutional.

The solution seems simple then. Eliminate the penalty and replace it with a mandatory premium for insurance which someone might or might not choose to use.

And people said single payor was bound to create problems? Couldn't have been anymore f'd up than the current mess.

[Long Run]

The solution seems simple then. Eliminate the penalty and replace it with a mandatory premium for insurance which someone might or might not choose to use.

That is essentially the second argument the Obama Administration made (that even if the Commerce Clause doesn't allow such mandate, the penalty is permitted as a tax). It is saying that the "penalty" is just a tax under the federal government's taxing authority, which is what the Medicare tax is. However, whereas, we all have to pay the Medicare tax whether we ever use the system, under healthcare reform only those who don't have their own insurance have to pay the tax, so the court wasn't persuaded that it was a revenue raising tax as opposed to a targeted penalty to force a certain behavior.

And Gob, I have to say you have a fair point in this. No one would design a legal system like we have if they were starting from scratch. Much of what we have is the convoluted result of historical meanderings and missteps. Somehow we manage to keep ourselves upright, most of the time.

[Andrew D]

There's an interesting take on this here:

(Dec. 13) -- Supporters of the Affordable Care Act should take a great deal of comfort from Judge Henry Hudson's decision today.

Yes, Judge Hudson did strike down one provision of the landmark health care law, but his opinion is so poorly reasoned, so bereft of legal analysis and so inconsistent with precedent that it has no chance of convincing the Supreme Court to strike down this law. If this is the best that opponents of health reform have to offer, than the act's supporters have nothing to fear.

Indeed, Judge Hudson's decision striking down just one small part of the Affordable Care Act -- the requirement that nearly all Americans either carry insurance or pay slightly more income taxes -- places him on a collision course with the views of one of the Supreme Court's most conservative members: Justice Antonin Scalia.

The Constitution doesn't just give Congress sweeping authority to regulate the national economy, it also empowers Congress to "make all laws which shall be necessary and proper for carrying into execution" its authority to enact economic regulation. As Justice Scalia explains, this means that "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective."

The act eliminates one of the insurance industry's most abhorrent practices -- denying coverage to patients with pre-existing conditions -- but 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.

Nor is this fear just idle conjecture. Seven states enacted a pre-existing-conditions law without also passing an insurance coverage requirement, and all seven states saw their health insurance premiums spiral out of control. In some of these states, the individual insurance market collapsed, leaving many people without any insurance options whatsoever.

There is a way out of this trap, however. Massachusetts enacted a minimum coverage provision in 2006 to go along with its pre-existing-conditions provision, and the results were both striking and immediate. Massachusetts' premiums rapidly dropped by 40 percent.

In other words, because the only way to make the pre-existing-conditions law effective is to also require participation in the insurance market, that requirement easily passes Scalia's test.

Yet, somewhat astoundingly, Judge Hudson did not once reference Scalia's clear rule. Nor did he even mention one of many other Supreme Court cases establishing that Congress "possesses every power needed" to make its laws effective. Instead, Hudson simply waves this rule away with a single cryptic statement that the Affordable Care Act doesn't fit within "the letter and spirit of the Constitution."

Maybe Hudson missed the day in law school when every lawyer is taught that a lower-court judge cannot ignore the Supreme Court's command. At the very least, a judge has a duty to actually explain his legal reasoning and to cite cases supporting his decision. Judge Hudson, however, provides no explanation for why he's apparently not bound by precedent governing a key constitutional provision.

In the end, there is a simple explanation for why he couldn't provide such an explanation: The law clearly does not support his position. Fifteen judges have now heard cases challenging the Affordable Care Act, and 14 of those cases have been dismissed -- many of them on the grounds that a federal court shouldn't even be hearing these challenges in the first place. Judge Hudson is an extreme outlier, and his disregard for precedent is unlikely to win too many supporters on higher courts.

One thing, however, is very clear from his opinion. Opponents of health reform have finally shown their cards -- and revealed themselves to have an exceptionally weak hand. If Henry Hudson's folly represents the best case against health reform, then the Affordable Care Act will be just fine.

[Scooter]

So is this one of those cases where we won't see the typical left/right split? I'm not familiar with the SCOTUS's recent record on interstate commerce cases.

[Long Run]

The act eliminates one of the insurance industry's most abhorrent practices -- denying coverage to patients with pre-existing conditions

Pet peeve: how can pre-existing exclusions be an "abhorrent practice" by the insurance industry when the author then goes on to explain why it is absolutely necessary to protect the integrity of the insurance market under the status quo (i.e., people are free to buy insurance or not).

[Andrew D]

Perhaps that is the point: The status quo needs changing, precisely because the status quo forces insurers, in order to remain solvent, to engage in the morally abhorrent practice of denying coverage based on pre-existing conditions.

[rubato]

Meanwhile Liberal Massachusetts health care reform appears to be a raging success.


http://delong.typepad.com/sdj/2010/12/g ... -down.html
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Massachusetts coverage update | The Incidental Economist: The Massachusetts Division of Health Care Finance and Policy (MA DHCFP) has released the results of its 2010 household insurance survey. It’s very good news, and to tie it into current news, it continues to show the value of an individual mandate.

[N]ot only does Massachusetts continue to have the highest health insurance coverage rate in the nation, but that our state has seen gains even through an economic recession.

This year, more than 98 percent of Massachusetts residents have health insurance. These results are astonishing.

Some of the most exciting news is related to children and elderly adults, as the survey found that virtually all Massachusetts children have health insurance (99.8 percent) and nearly all elderly adults are covered (99.6 percent).

The survey, conducted by the independent Urban Institute on behalf of the Division, indicates that coverage is very strong for Massachusetts residents at all income levels, ranging from 96 percent for those with family income under 300 percent of the federal poverty level to over 99 percent of those with income above 500 percent of the federal poverty level.


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yrs,
rubato