Monday, December 13, 2010

Breaking Health Reform News...

I'm interrupting my look at Simple Living questions to post some news on the Health Reform bill. It appears the part of the bill that mandated individuals purchase health insurance if they didn't get it from their employer may be unconstitutional. At least that's the decision a District Court judge reached recently. This is the part that I personally found perhaps most troubling in the health care bill and I'm not surprised that it's being challenged, perhaps successfully.

From CNN...


U.S. District Court Judge Henry Hudson struck down the "individual mandate" requiring most Americans to purchase health insurance by 2014. The Justice Department is expected to challenge the judge's findings in a federal appeals court.

Hudson's opinion contradicts court rulings finding the mandate constitutionally permissible.

"An individual's personal decision to purchase -- or decline purchase -- (of) health insurance from a private provider is beyond the historical reach" of the U.S. Constitution," Hudson wrote. "No specifically constitutional authority exists to mandate the purchase of health insurance."

A federal judge in Virginia ruled in favor of the administration this month over the purchase requirement issue, mirroring conclusions reached by a judge in Michigan.

Virginia officials had argued that the Constitution's Commerce Clause does not give the government the authority to force Americans to purchase a commercial product -- like health insurance -- that they may not want or need. They equated such a requirement to a burdensome regulation of "inactivity."

Virginia is one of the few states in the country with a specific law saying residents cannot be forced to buy insurance.

"I am gratified we prevailed," said Virginia Attorney General Ken Cuccinelli, a conservative Republican elected in 2009. "This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution."

14 comments:

John said...

The health care law is indeed unconstitutional because, among other issues, the Constitution does not authorize the federal government to mandate an economic purchase by citizens. And anything that the federal government is not authorized to do, it is forbidden to do.

Alan said...

Activist judges! They cannot overrule the will of the people as expressed by legislative action! Time for a recall of this activist judge attempting to legislate from the bench!!

Alan said...

OK, now a serious comment...

While some are portraying this as the death knell for Health Care Reform, it isn't anything of the sort. First of all, we know this will be in the courts for years. Second, it is a provision that was demanded by health insurers to pay for the fact that the bill outlaws denying coverage for pre-existing conditions, a provision that is overwhelmingly supported by the American people. Remember, the mandate was modeled on Republican Mitt Romney's health care legislation in MA.

Now it is up to health insurers to come up with a better funding model that follows the law regarding pre-existing conditions, but does not require mandates. They will probably just significantly raise rates for the healthiest people to pay for folks who get diagnosed with cancer and decide to buy insurance the next day. Financially, that's probably the sanest solution since the healthiest people are likely to pay premiums for the longest time.

So yay to no mandates! The decision (probably) insures (heh) that we'll all be paying significantly higher premiums, instead of lower premiums over all.

Geoffrey Kruse-Safford said...

Alan is correct. I must say that I agree with the judge's logic, too. Of course, does this mean the return of the dreaded public option? Under Republicans? No. All its means is the attempt to control costs by having as large a pool of insured people as possible (including young people whose care, and therefore costs would be minimal) is dead in the water.

What's next? The mandate wasn't supposed to kick in for almost three years (2014) so there is time to work on alternatives, but my guess is the Supremes won't go for them (which, since I kind of agree with this judge's ruling, is a good thing), so we are left right where we were before - spiraling health care costs.

Geoffrey Kruse-Safford said...

On the other hand, there's this:
"The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity.""

This was from a conservative legal scholar's comments on the ruling.

Doug said...

Geoff:

The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

I read elsewhere that while the Constitution allows Congress to regulate commerce, it does not give it the ability to force commerce and to thus give it something to regulate.

...so we are left right where we were before - spiraling health care costs.

Well, seems like ObamaCare was going to contribute to said spiraling because of its other mandates. Many companies and unions were getting permission to opt out of some provisions because it was going to cost them more, and some companies and unions and even insurers have dropped certain coverages (like with children, who would be forced to be covered to much higher age) also because of costs.

I would think we'd be concerned, not as much about cost, as about access to health care. Right now, anyone can go to an emergency room regardless of their ability to pay. There's typically a long waiting line, true, but as we see in every other country with nationalized health insurance, the lines would generally get longer for everyone.

I, too, agree the individual mandate is unconstitutional, and I'm glad to see you folks agree. This ruling, however, has apparently come as a huge shock to many on the Left who thought this was simply impossible. See James Taranto's column from yesterday for a number of examples, and also a concern. Obama came out against an individual mandate in the campaign. Taranto notes:

Obama no doubt sensed that the idea of compulsory purchase of insurance would rub voters the wrong way. But short of outright socialism, it is hard to see how one could make a system of universal insurance work without it.

And if you're really concerned about spiraling health care costs, just look at what the countries who are "outright socialized" are spending for their systems. Canada, for example, is having to come to grips with costs someday eating up as much as 70% of its provinces budgets, at current predictions.

This is just a bad idea all around.

ricklibrarian said...

Dan, I'll see what I can do with your reference question. More later. Rick

Marshall Art said...

It seems to me that if costs was the question, costs should have been the focus. That is, if one reason for the high costs of insurance was the inability to purchase across state lines, that regulation should have been addressed first and directly. It wasn't. If one reason for high costs was the coverage mandates, such as a man's premiums paying for coverageo of women's issues he'll never experience, that regulation should have been adressed directly. It wasn't. Tort reform is another area that wasn't directly addressed. The point here is to first address that which is obviously contributing to the high costs and then see where we stand.

The other side of the equation, of course, is jobs. Ignoring those uninsured who are uninsured by choice, the issue is having jobs that provide income in order to buy insurance. The more people employed, the fewer unable to contend with costs, whatever they are (within reason). I lost my job and we found coverage that was not beyond our now meager means to afford. I'd keep it and work to upgrade it myself if by aggreeing to do so I could get my next employer to add to my wages what he wouldn't pay to insure me.

The main problem with Obamacare, then, is the fact that it had no intention of lowering costs, but only of insuring more people at other people's expense. Redistribution. As is so often the case, the high costs of health care and health insurance is the result of gov't interference and those interferences should have been the first target of reform.

Geoffrey Kruse-Safford said...

Doug, that quote was not from me, but from a conservative legal scholar who was criticizing the decision from the Federal District Judge. I offered it as a possible counter to the overwhelming attitude that the judge's decision was Constitutionally and logically sound, when clearly there are some, including those who might be disposed to support the decision, who clearly think not. I have no opinion on the legal and Constitutional questions involved because I am not qualified to make such subtle distinctions.

I thought I made clear that I was not happy with the individual mandates and supported, in general, the idea that the Constitution bars Congress from forcing people to purchase something they would otherwise be disinclined to purchase. Oh, well.

Geoffrey Kruse-Safford said...

Marshall Art gets something right! His very first sentence contains the very frustrations so many are feeling regarding the whole Health Care Reform Act and debate proceeding it. Had Congress chosen to allow the federal government to bundle price negotiations - therefore forcing down costs - for pharmaceuticals; had they offered a robust public option rather than choosing to operate solely within the existing system of private insurers - costs could have been kept low without any threat of Constitutional contradiction. They chose to favor the existing for-profit insurance companies, whose existence they are under no compunction to support, costs could have forced down. Instead, with the individual mandate gone, the major reason for health care reform - keeping costs low - is undercut completely.

Doug said...

Geoff:

Doug, that quote was not from me, but from a conservative legal scholar who was criticizing the decision from the Federal District Judge.

I understood that. I was just offering up another opinion from another legal scholar who didn't see this as such a blow to Constitutional power.

Marshall Art said...

Good gosh, Geoffrey! Even when you claim to agree with me you miss the point.

Before Obamacare, there was only one point on which everyone agreed: the cost of health care and health care insurance is too high. From there everything went their own way with numerous opinions as to what caused the high costs and what to do about it.

One thing is certain, and that is that the federal gov't has no place in the discussion. They have done enough to drive up the costs and there's little they can do (especially with Democrats calling the shots) that'll do anything put make things worse.

Their first big mistake is the claim that everyone has a "right" to health care to the extent that gov't must provide it. Not in the least bit true. If it were, then it won't be long until they are providing for housing and food, for which I have no doubt there are plans now in the works.

If gov't wishes to lower costs, their first step HAS to be reviewing their own interferences to remove, in most cases, or tweak, in some cases, those steps taken that resulted in costs rising in reaction.

Geoffrey Kruse-Safford said...

Marshall Art: "One thing is certain, and that is that the federal gov't has no place in the discussion. They have done enough to drive up the costs and there's little they can do (especially with Democrats calling the shots) that'll do anything put make things worse."

The first sentence is, of course, a matter of opinion rather than fact. Actually, the federal government, state governments, local governments have all sorts of roles in health care from setting standards for licenses and regulating medical practice to insuring adequate access for any in need. To say "there is no role" is, historically speaking, ridiculous. The "government" is no more or less than the will of the people expressed via various institutions that various aspects of society will reflect certain values, and with the force of the law - the police power - keep those minimal standards.

The second sentence is a factual claim. Without any support. In fact, the United States, which did not have any kind of standardized health care policy nationwide until the Affordable Care Act was passed, had the highest medical costs among industrialized nations that did have universal coverage, from the National Health Service of Britain to various plans similar to the one Congress adopted, as in Switzerland. So, to say the federal government drives up costs is ridiculous. Unless, of course there is the law that says that medical care will be given to any individual regardless of ability to pay, without setting up mechanisms for how that payment is made or whether the treatment is adequate. If you mean that, then sure, but that is one of the issues ACA was designed to address.

You offer no reasons for your statements, no evidence, nothing more than the regurgitated talking points of others. Think for yourself, check out your facts before you start making claims. Most of all, don't pick a fight where one isn't waiting for you.

John said...

You offer no reasons for your statements, no evidence, nothing more than the regurgitated talking points of others.

Pot, meet kettle.