Two provocative questions about health care law and Supreme Court case
Question No. 1: If the Patient Protection and Affordable Care Act (aka Obamacare) is unconstitutional, how is Medicare constitutional?
One of the ways that advocates of a Canadian-style single-payer health care system for America get around the scary socialist sound of the term "single payer" is to call it "Medicare for all." Because they know that Americans love Medicare.
And yes, Medicare is basically a single-payer system for older Americans. Money is extracted by the government, by a payroll tax on employers and employees, and paid directly by the government to health care providers who treat Americans over 65. Many leftys would have preferred a "Medicare for all" approach instead of the PPACA.
One of the reasons the architects of the PPACA came up with such a complicated scheme to push America closer to universal health care coverage is that they wanted to make it look less like single-payer (or the even more big-government approach, Socialized Medicine, such as the systems in Britain and Sweden). But in America, especially in Tea Party America, that much socialism is deemed politically impossible.
The more complicated and probably less-efficient PPACA keeps the private health insurance industry in the picture, and its architects made many compromises to buy down the resistence of health insurers. But that hasn't stopped its opponents from labeling it as a "massive government takeover of health care."
Obamacare wouldn't work without the individual mandate. And now the Supreme Court may strike down the mandate or possibly the whole law because (perhaps) nothing in the Constitution explicitly authorizes Congress to force health care free riders to buy a product or service they don't want.
Still, Medicare/single payer is much further down the pike toward "government takeover of health care" than Obamacare is. For decades after Medicare was passed in 1965, some conservatives tried to repeal it. This was one of Ronald Reagan's first big causes as he transitioned from acting to politics. More recently, the right has just tried to "privatize" Medicare, as in the Paul Ryan plan just released.
But if the Supremes decide that the PPACA is too much federal government control over health care, how long before someone with access to a lawyer notices that Medicare is a much more direct government takeover of health care, at least for the large and growing segment of the population that uses more health care than any other?
Question No. 2
Question two is a little thought experiment and it comes from Robert Parry writing for Consortium News. So I'll just let him raise it. The first paragraph of his article asks:
Does anyone doubt that if a Republican president had enacted the Affordable Care Act – with its individual mandate devised by the right-wing Heritage Foundation and with Mitt Romney denouncing "free riders" not paying their share of health care costs – the U.S. Supreme Court’s Republican majority would be lining up to declare it constitutional?
Indeed, if the Heritage Foundation, which did dream up the individual mandate, were submitting supportive friend-of-the-court briefs – instead of denouncing its own idea – and if Romney were still deriding those “free riders” who palm off the costs for their emergency health care on others, the odds would be that the Court would vote overwhelmingly for the constitutionality of the health reform law.
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Comments (32)
"Government is the enemy".
"Government is the enemy". "The free market is your friend". These are the ever-hardening positions of the Republican party since Reagan. Perhaps there was a time when the Republican party would have promoted some form of healthcare reform but that has become very unlikely. If you look at the change in time from the days of Romneycare and consider that Romney was THE conservative candidate last time, you can see the increasing narrowness of definition of "Republican".
So unlike Robert Parry, I have no delusion that Republicans could have or would have worked toward a similar program if left alone and allowed to go their own route. If you look at the budget proposals of the GOP "fiscal guru" golden boy, Paul Ryan, you see that there is absolutely no room for current spending and with that, certainly no room for expanded medical spending. The Republican-controlled state legislatures are all the same way. So no, there is no room in any Republican budget anywhere for an expanded role of government in medical spending and actual contraction is the game of the day.
There is too much money to be made in the medical industry for the Republicans to step in and spoil the party. The killed healthcare spending reform before, they'll kill it again if they can.
Medicare is a tax
That's not saying conservatives agree with government-run health insurance but that's how the democrats have managed to make it legal.
2) Yes, I doubt it. The Heritage Foundation came up with their plan as a desperate attempt to counter HillaryCare, which would have been government-run health care for all run by Washington bureaucrats. And the proof is, that now that Hillarycare is no longer a threat, their second-worst scenario alternative is off the table and no one is admitting it was their idea.
There may be people out there who call themselves republicans who have no problem with individual mandates for health insurance but I haven't seen any admit it since the early 90s.
There are people out there who call themselves republicans who think progressive income tax rates are just fine too. But no one's calling that a "conservative idea."
Individual Mandate
"The Heritage Foundation came up with their plan as a desperate attempt to counter HillaryCare, which would have been government-run health care for all run by Washington bureaucrats."
Well then you have to give the Heritage Foundation a great deal of credit for foresight, since the Heritage Foundation proposed the individual mandate as early as 1989 and Clinton was not elected until 1992 (and was inaugurated in 1993).
http://thf_media.s3.amazonaws.com/1989/pdf/hl218.pdf
Page 8: "2) Mandate All Households to Obtain Adequate Insurance"
Also: http://www.heritage.org/research/reports/1989/a-national-health-system-f...
Pages 51 and 67. From page 51: "Element #1: Every resident of the US must, by law, be enrolled in an adequate health care plan to cover major health care costs"
The Heritage Foundation seemed to have no question about the constitutionality of a mandate in 1989, and I don't the Constitution has changed since then.
Medicare
It's not important to have answers for questions that are never asked. When Medicare was enacted, it didn't really occur to anyone to challenge it in court. At that time the broad reach of the interstate commerce clause established in FDR's administration wasn't disputed by anyone. It was settled constitutional law. Only in recent years, has the jurisprudence established back then come under review, mostly with respect to relatively insignificant issues. The fact is Medicare could be challenged on some of the same grounds as Obamacare was, as Social Security was in the 1930's, but I expect it won't be, because that would be politically unacceptable.
As for the second question, it's a hypothetical, and as an unimaginative person, I don't have the requisite mental skills needed to analyze hypotheticals. I find trying to understand real legal issues to be challenging enough.
Insurance Companies Don't Like Old People
Old people get sick and go in the hospital and cost insurance companies money. If we got rid of Medicare and made senior citizens buy from private companies, they couldn't afford it. There are not enough young people who don't get sick who would buy insurance to cover the cost of treating old people. And there are 60 MILLION baby boomers about to get old and sick in the next ten years.
On the plus side, old people would die quicker and cheaper from lack of medical care and the free-market people would turn out to be right. That would be God's will, according to Rick Santorum.
See "death panels"
It's not Rick Santorum who's counting on that actuarial phenomenon to help pay for the system.
You're right
It's the insurance companies. It's just that Santorum approves.
I just want to say...
If this part of the health care law does get overturned, I just to you let you know that myself and all my progressive friends that demanded a public option, or a national plan will be saying: "I told you so."
I just want to add...
Hear, hear! You can't make individuals buy something they don't want, but as citizens of a society we can be compelled to enact and fund social policies that serve the common good. I'm happy to pay for police, fire protection, libraries, food stamp programs that help those who are struggling, and the like.
As there may be some who would argue that the Founders did not provide for a health program, let's remind ourselves of the practice of medicine in that era, as well as remembering higher infant mortality rates and shorter life expectancies--esp. for the non-landed, non-Founders, even after they reached adulthood. The 300+ million citizens of the US in 2012 live in a much different world than the 3 million citizens of the Founders era did.
The punditry
has already declared SCOTUS oral arguments on the individual mandate a disaster for the administration. Some of those sounding the death knell are experts I respect---like Jeffrey Toobin.
I think it's a bit premature. I wasn't there, obviously, and have only read accounts of the questioning. But we were taught in law school--and it's been my personal experience---to "rejoice when the court asks tough questions"--because that gives you the chance to allay their doubts about your argument. So pointed questioning, in and of itself, is not necessarily a predictor of how that particular justice will vote. It's more than possible that Kennedy and Roberts may not yet know how they will come down. While Kennedy said the administration had a "great burden" to justify requiring the purchase of a product, it's also true that federal statutes enjoy a presumption of constitutionality and in that sense the burden is on the challengers. I'm sure Justice Kennedy is well aware of this and that the issue has been thoroughly briefed.
It's also worth remembering that cases are not decided wholly on oral argument---the briefs are usually more important. All sides have thoroughly briefed the mandate issue. It's possible the Court will request further briefing. And, there's the give and take at conference, the impact of the research of the Court clerks, and all sorts of other imponderable factors.
No one---not the pundits and certainly not the public---will know until June how this will play out.
Thank you for that insight,
Thank you for that insight, Ann.
It brightened my afternoon, after being a little down this monring as I read the early reports on how the questioning went at the SCOTUS.
Just like Osama Bin Laden was
Just like Osama Bin Laden was the best thing to happen to George Bush, the PPACA is the best thing to happen to the TParty and the Republican tag-alongs.
But like the dog chasing the car, the question becomes what to do when you catch the car.
Maybe that's why Osama was allowed to continue on as long as he did.
So for all of you Republicans, the monkey is on your back now!!
Now them are some provocative
Now them are some provocative questions!!
Ann Spencer is right
Unless Robert Parry has inside information that nobody else has, how does he know what will happen with Obamacare at the US Supreme Court? It looks like a toss-up to me.
It's curious
that the liberal judges, like potted plants, are simply expected to rubberstamp the law without debate and the conservative judges are the only ones everyone's expecting to have the intellect to debate the constitutional implications.
Kennedy's the "moderate" and he's ridiculing the administration's arguments.
I suggest
that you actually read the transcripts of the questions so far.
Kennedy grilled BOTH sides.
But some people can only look to their right.
Speaking of potted plants
Justice Clarence Thomas is now commonly referred to as "the silent justice" because he very, very rarely asks questions. He appears to have little or no intellectual curiosity about the cases before the court. Does that make him a rubber-stamper with no intellect to debate constitutional implications?
The two questions are one question
To strike down the individual mandate, the Supreme Court would have to narrow 100 years of its own commerce clause rulings in an unprecedented way, leagues beyond the recent Lopez guns-'n-schools case. The motivation for the ruling would not be jurisprudential.
A century of precedents
Didn't stop them with Citizens United.
I see this as purly democratic fodder.
Fact is that even Romneycare would fail at the federal level. Romney got it passed in his state because it's at the state level. The state; within reason can do things a bit more drastic than the feds can. I see the "question" raised as simply anger and anguish about the GOP getting in and taking your socialism candy away from you. That constitution at it's most fundamental level cannot force me to go buy Broccoli or anything; comrade'
No; the commerce clause does not need to be narrowed. It is pretty clear in its language but the problem is the interpretations of some of it.
Lastly; I see no one even beginning to cry foul over Kagan sitting in on this session. Some republicans have brought it up only to be quashed by the room full of democrats. She MUST recuse herself because of her previous involvement in it. But once again; the democrats are putting this under the rug because it's considered not detrimental to the ruling. The heck it ain't??
Taiwan
In Fareed Zakaria's “Global Lessons — The GPS Road Map for Saving Heath Care” , I found the experience of Taiwan to be fascinating. They had a system much like the U.S. system, including how broken it was, and decided to toss it and design a new system from scratch. They studied all of the systems used by developed countries around the world (discarding the U.S. system as a hopeless mess), and what they ended up with was single-payer insurance managed by the government, and private sector health care providers. Their rate of uninsured dropped from 41% to 8% in one year, and the system is rated one of the best in the world.
Which serves to illustrate what many of us have been saying all along, which is that the private, market based insurance model is entirely inappropriate for health care. Oil and water. Among its failings, the private model incentivizes insurance companies to refuse to cover anyone with a pre-existing condition; IOW, insurance only for those who don't need it. It is also inherently dishonest, in that the costs of the uninsured are inevitably passed along to the rest of us - i.e., it encourages free riders. You'd think republicans would have a problem with that bit, but they seem willing to pretend it doesn't exist.
It's unfortunate that many in the U.S. have a problem learning from the rest of the world. It holds us back. Well, at least we have our pride, eh?
The population of Taiwan
is about 23 million people. By comparison, New York City is about 20 million people.
The cost and bureaucracy of providing health care for about 20 million people in a small geographical area is miniscule compared to providing it to 313 million people spread out over 50 states.
It's unfortunate that many in the U.S. have a problem learning about scale factor.
Ever hear of
economies of scale?
It works both ways.
Justify your claim of an exponent greater than one.
Well?
No answer to Paul's request, Dennis? Revenue scales along with cost, which you conveniently failed to mention. I shouldn't have to define this for you, but the purpose of insurance is to lower individual costs by spreading the cost out over a large group, the bigger the better. In any case, you're paying for the free riders regardless - it's just "under the rug".
Please note also that in the example of Taiwan, it is only the insurance that is government-run. The providers are all private sector. Presumably private sector efficiencies still apply.
Further, we have the real world evidence of every other developed nation in the world, which ALL do it cheaper and better than we do, whereas we have no comparable evidence that a U.S. style "system" (if you can call this mess a system) works worth a damn.
The data all point one way. You need to justify your statements with more than just declarative statements.
Polio anyone?
What about federally mandated, unfunded childhood vaccinations, designed for the greater good of society? Do opponents find this likewise unconstitutional and takes away their freedom to do nothing and spread deadly diseases?
I don't think the Heritage Foundation "created" Romney's system
They seem to have copied it from the Swiss/Norwegian/German/other European countries -- EXCEPT that they rejected the part that allows those countries to spend a third or more less per capita than we do while leaving no person without care. That part was real government control by governments who refuse to let insurers control the system to their own benefit.
--All insurers are non-profits who are allowed to charge enough to meet expenses
--The government annually studies (and may adjust) health care costs and determines what insurers can charge for premiums based on those costs
--The government determines a common benefit set; all companies must cover everything the government mandates and physicians/dentists/eye doctors, etc., prescribe; there are no denials or refusals to insure
--All citizens must purchase insurance through an exchange, but since every company charges the same price they can make their decisions based solely on the quality of customer service
--The government will help the poor pay the cost of their premiums
These are well-run and economical systems. The idea that the U.S. lets 45 to 50 million people go without health insurance, mostly because they can't afford it, made the Taiwanese wonder why our country treats its people so badly.
Someday, America may realize that health care is as essential to the safety of our population as are the protections provided by our police and fire departments -- components of the common good, to be paid for in common whether or not we personally ever have to dial 911 for help.
Nice one, Eric…
Indeed, Medicare *is* quite a bit closer to “government health care” than what’s proposed in the PPACA. Note how those covered by Medicare don't seem to mind that point very much. Note also how carefully Republican politicians step around the minefield inherent in that by insisting that any changes in Medicare – or Social Security, where the same issue of “big government” rears its head – will “grandfather” existing recipients. They know that the AARP will marshal its considerable forces and a horde of bald guys in plaid pants, accompanied by angry blue-haired ladies, will be pounding on their Congressional office doors if they threaten to end what is for many elderly a lifeline. Instead, the GOP will kick the can down the road until most of the Boomers have kicked their own proverbial bucket, and then hope to pull the old “bait and switch” that so many of them learned on Wall Street, or as used car salesmen.
I love question #2. Sure, it’s speculative, but it also requires that we acknowledge something that’s rarely acknowledged: the SCOTUS does not operate in a political vacuum. Whining from right wingers about “activist” judges goes away when the activism is coming from a judge they like, and supports a view with which they agree. I could mention the Citizens United ruling, for example, but that might embarrass our friends on the right. The justices certainly have their biases, and the ship of state changes course very slowly, and often reluctantly, but the Court is made up of *lawyers,* who’ve spent many years, individually and collectively, studying the *law.* It's pretty unusual for them to go out on a legal limb, though they've done it on occasion.
While I’m inclined to side with Robert Parry, and I do think the SCOTUS as it's currently constituted would quickly approve a PPACA if it hadn't been disowned by its birth mother, the Heritage Foundation. Nonetheless, I want to thank Ann Spencer for tamping down the fires a bit on both ideological sides. Predicting a SCOTUS decision ahead of time is risky business, not unlike someone claiming to know the will of God. Such a claim is handy if you’re a demagogue, but not necessarily something upon which to bet a large sum.
Fareed Zakaria’s conclusion, provided by Lance Groth, is right in line with that of T.R. Reid, whose “The Healing of America” explores the health care systems of five other industrial societies in detail (and a few others anecdotally). All of them get better results at lower cost than we do. Taiwan is simply the latest example. Some are exclusively government-run, some have a sizable private sector, but all of them require everyone to participate. And – once more, since Mr. Kline will insist that he’s special, and shouldn’t have to take part – *all of them get better results, at lower cost* than the Rube Goldberg system, fueled by greed (excuse me, fueled by “the free market”) that has evolved here in the U.S.
Your first question
Your first question illustrates perfectly the absurdity of the individual-mandate opponent's argument.
The anti's argument is that the Constitution doesn't permit Congress to require citizens to buy something, period. Medicare isn't touched by that argument because you're free to not enroll in it(though you must nevertheless pay for it). If Medicare required you to sign-up and assessed a penalty if you didn't, then it would resemble the individual mandate and would stand or fall constitutionally on the same grounds.
Similarly, the anti-ACA side conceded -- as they must -- that had Congress enacted Medicare-for-all and funded it with general tax dollars, it would be undoubtedly constitutional.
So, if this is true -- as the opponents agree it is -- why doesn't the Constitution permit to Congress adopt a less-intrusive, less-comprehenssive plan to improve the health insurance market by requiring the industry to make market reforms on the one hand (e.g., must issue, no lifetime caps, minimum benefit sets, minimum premium-benefit ratios, etc.) and financing the reforms by the one thing that is required to make an insurance model work -- universal participation in the risk pool? The answer is self-evident: The Constitution does NOT prohibit Congress from doing this because it is a rational regulation of interstate commerce.
That's the thing that drives me crazy: Because Congress did NOT enact a government "take over" of health care financing and paying for it with taxes -- which it undoubtedly has the constitutional power to do -- and instead enacted a less-comprehensive reform scheme that builds on the historic private-insurance market model it's somehow unconstitutional? Give me a break.
The fact that even a small handful of federal judges (a minority of those who have considered the cases, remember) found the individual mandate to be beyond Congress' commerce powers (even in context of the general reform of the insurance market) shows how successfully the right-wing has packed the federal bench in the last twenty years or so.
All this said, I do not despair. I am confident the court will uphold the act. The four liberals will uphold it as being well within Congress's power under the court's precedents and won't consider it a close case. At least two conservatives -- Kennedy and Roberts -- will uphold it in a separate opinion adopting the reasoning of well-credentialed conservative, Republican-appointed appellate court judge Jeffrey Sutton of the 6th Circuit. He found it a close call, but that in a close call Congress wins. Kennedy and Roberts will try to limit the opinion to the uniqueness of the health care insurance market and set up extra-constitutional hurdles for Congress in the future, but they will uphold the act.
I've been wrong before, I should note, as former President Gore would tell you. But I do hold out a crazy, niave understanding that courts will sometimes let the law triumph over politics.
Medicare, which I have now
Medicare, which I have now that I'm retired, does impose a penalty if you choose foolishly not to enroll and end up enrolling late once you realize your mistake: for the rest of your life, your monthly premiums will be much higher than the rest of us pay. In other words, Medicare--and especially Part D, that covers drugs--recognizes that all of us participate sooner or later in the health care market. What the 2010 law hopes to do is get everyone paying for it. Anyone who understands the insurance model understands the importance of having a huge pool
When I had a health emergency several years ago I was astonished at the cost of a hospital bed for 24 hours, especially Intensive Care, and the cost of routine medical tests. Actually they cost much less than I was billed (I have both Medicare and a supplemental insurance plan and was therefore the hospital's equivalent of A Golden Goose who could pay full price). The explanation was that I was billed higher so the hospital could pay the expenses of those they treated without getting any payment from the patients. That's the Free Rider syndrome that Justice Ginsburg spoke to yesterday.
And Medicare works, against the sometimes artificially (if rationally) high charges of doctors and hospitals: Medicare fights like mad, and not just in the "we'll only pay this much" schedules. Medicare goes to bat for the patient, saying "Don't pay this! They can't charge you this!" I was amazed at having a quick and thorough federal agency in my corner against some abusers in the health care industry.
I'm for universal single-payer health insurance, of course. And I hope the Justices see that the health care market is unlike "the market" that sells broccoli.
It's not about Medicare
It's about people who WANT government to fail at anything that it does.
Just curious...
I do wonder, if the law moves successfully through the courts - with or without mandate - will it have any effect on the high costs of health care?
Just considering the impossible:
Take the whole foul system out of the marketplace. Assert some control-by-regulation over health as a public right so instituted. At least regulate; yes, regulate the medical industrial complex where administrative salaries, physicians; all those who benefit when citizen/ patient is dependent on health care to survive in some critical cases?
Who makes the rules; who judges the outcome:
What does Congress really know, care about the people out there? They have nothing to worry about but being reelected and all they need is a few wealthy backers? They are well provided with their health needs within this present system. Supremes too, are well provided for...but for others?
My god this is becoming a strange country; cannot care for the health of its own -which is every citizen,eh - yet we spend billions killing others in order to be number one on the world stage..
Kill our own too or turn them into walking war zombies without sufficient health care?
There's another word for what we do to others; what we do to ourselves and it is not democracy.
I've been lucky health-wise. Others have not .Think a little beyond one's own doorstep...others out there are citizens too. We are becoming what our forefathers warned us about?
We wait for the word of the court who will probably perform well for some..for.others?
Funny Footnote:
I'm glad Cheney could afford a new heart...only wish it were the heart of Tom McGrath, the late, great plains poet ...believe that impossible scenario and go one step furthur and let's say something fantastical happened; so unexpected.... Cheney started speaking unusual poetry in the recovery room...wow, now there's healthcare worth applauding?
I have a hard time understanding
those that vehemently oppose the individual mandate yet do not offer an alternative. Under the current system, those who are insured bear the cost of care for those who are not insured. To remedy this, I see two options: Require everyone to pay in to the system (which the individual mandate does), or, revoke emergency health care for those who don't have insurance and can't pay upfront. Haven't heard many Republicans suggesting the latter, at least not publicly.