Health Care Reform: The Lighter Side

Don’t get me wrong. Health care reform is a serious issue. But sometimes there are ironies and juxtapositions that just strike me as funny.

Take the Mobius strip that is the individual mandate (lingo for requiring everyone to obtain health care coverage, one of the more controversial elements of the health care reform package President Barack Obama signed into law). Try to follow this one: When then First Lady Hillary Clinton led the charge for health care reform in the 1990s she attempted to force employers to cover all their workers (what’s called an employer mandate). Republicans, marching under the banner of personal responsibility, countered with health care reforms that relied on an individual mandate.

Cut to 2008. Then Senator Barack Obama puts forward a health care reform proposal that includes neither an employer nor an employee mandate (although it did require all children to obtain coverage, which would be what, a kiddie mandate?). Then Senator Hillary Clinton rightly chastises her campaign opponent for being unrealistic. If carriers are to be required to accept all applicants regardless of their pre-existing conditions, then everyone needs to be in the insurance pool. Otherwise the system won’t work. Prices will skyrocket as everyone waits until after they need medical care before they buy health insurance. Nay, nay, says the future President.

Until he becomes President. At which time he makes the individual mandate a central component of his overall health care reform plan. Where do Republicans stand on the individual mandate? Having promoted the idea during the Clinton Administration they now oppose it during the Obama Administration. And the trip around the Mobius strip is complete. (Well almost. With a real Mobius strip you wind up back where you started. If history is any guide, however, it is inevitable that one day the GOP will defend the individual mandate as a true expression of personal responsibility. So it’s only a matter of time until the Mobius journey is complete). Given all this it’s kind of a shame that now Secretary of State Clinton doesn’t get one of the 22 pens used by the President to sign the health care reform bill.

But wait, there’s more. Today’s Republicans are so aghast that yesterday’s Republicans proposal for an individual mandate is now part of President Obama’s health care reform law they’re going to court. Well, not Republicans per se. But 14 states are suing to overturn the new health care reform bill and it just so happens that 13 of the 14 Attorneys General filing the suits are Republicans. (The 14th is a Democrat from Louisiana which. There’s a joke there somewhere, but I’m taking a pass).

As the Christian Science Monitor reports, the suits have two basis. First, that “the new law infringes the liberty of individual state residents to choose for themselves whether to have health insurance. It also says the states themselves are victims of a federal power grab by leaders in Washington” because of changes made to Medicaid.

For now, let’s just focus on the claims about whether the individual mandate is unconstitutional. Because this is where Alice’s looking glass comes returns to center stage. It seems there’s a relatively recent Supreme Court precedent that makes this challenge an uphill climb. The ruling, in which conservative Justices Antonin Scalia and Anthony Kennedy joined the 6-to-3 majority according to the Los Angeles Times held that “Congress could regulate (an item) that was neither bought nor sold on the market ….”

Which puts those two Justices and their colleagues in a bit of pickle. Because in order to rule the health insurance law unconstitutional they will likely need to overturn at least certain aspects of this earlier case, Gonzales vs. Raich. And that is something conservatives would like to avoid as that case was about the legality of growing and selling marijuana for medical purposes, something California law permitted. In ruling that the federal government could prevent a state from regulating transactions that occurred solely within its borders, the Supreme Court found the federal government had broad regulatory powers.

The substance of the case that will determine whether an individual mandate is constitutional is important and will have long-term ramifications for the country. But that’s not amusing. What’s amusing is that the suits put conservative Supreme Court justices between a rock and cloudy place.

Health care reform is a serious issue. But you do have to admit there are times when laughter is a more appropriate reaction than jubilation, anger or fear. Not always, but sometimes.

10 thoughts on “Health Care Reform: The Lighter Side

  1. Alan

    I am beginning to feel like Brett Favre here but I did write that I would comment if your articles veered towards legal issues.

    Since the State Challenges to the recent Healthcare Reform legislation are not before the Supreme Court it is too early to fully analyze the merits of the arguments raised by the fourteen Attorney’s General. Analyzing an issue the Supreme Court agrees to hear is easier if supporting and opposing briefs are available.

    However, following is my brief, brief.

    The first thing I would like to point out is the use of quotes out of context that reinforce one’s opinion of how the Court will rule. In your linked article, Opponents Face and Uphill Struggle, the author quotes the Second Amendment as an example where the Federal Government mandated the purchase of weapons. On its face, this would appear to be a slam-dunk for proponents of the Healthcare Reform legislation. However, a further reading demonstrates that the individual States could choose to Arm their Militia’s.

    Moreover, under the Constitution, the Federal Government had the authority to call into service the individual State Militia’s. If the Federal Government exercised this authority the Federal Government then became responsible for arming the Militia members (see attached Second Amendment Memo pg 37).

    Another example I have seen where opponents of the legislation take a quote out of context is the quote from Chief Justice John Marshall in his ruling in Gibbons v Ogden (22 U.S. 1). In Gibbons, Justice Marshall wrote, in part, that the authority of the States was limited to the public health of its citizens. However, the issue before Justice Marshall was whether Congress had the right to regulate the transportation of goods under the Commerce Clause. Therefore, while Justice Marshall stated his belief in the limitations on Federal Authority, his belief on the appropriate roles of the Federal and State governments is considered Persuasive, not Binding Authority.

    As to Gonzalez v Raich (545 U.S. 1), the basic issue in Gonzalez was the extent of Congress’ federal regulatory authority under the Commerce Clause and I do not think the issue in Gonzalez is relevant to the recent healthcare legislation.

    The fact is State and Federal regulations already exist that cover the health insurance industry. What is missing is a bright line definition of which regulations are applicable.
    In Aetna Health Inc v Davila (542 U.S. 200) a unanimous Supreme Court upheld those provisions of the Employee Retirement Income Security Act which preempted State tort claims in an ERISA administered plan. Justice Ginsburg, in her concurrence lamented the existence of clear-cut rules.

    I understand that ERISA is not the Patients Protection and Affordability Act; however, I believe its existence, along with COBRA, acknowledges Congressional authority under the Commerce Clause.

    In addition to the above, the Tenth Amendment argument raised by the Attorney’s General and opponents of Healthcare reform in general will probably fail because the States can opt out of the program. The only area where thay may have a claim is the section which requires that if a State opts out of the program, that State is still responsible to provide the minimum coverage mandated by the law. However, I doubt that the Supreme Court wants to open the door of unfunded mandates.

    As an aside, even participation in Social Security is optional for State and Municipal governments. States and Municipalities can sign what is known as a Section 218 Agreement, which acknowledges their willingness to participate in social security for the benefit of their public employees. However, a 218 agreement could also be nicknamed a “Hotel California agreement;” you can “check in but you can never leave.”

    Conclusion: I will be surprised if the Supreme Court overturns any section of the Patients Protection and Affordability Act but then again I could be 100% incorrect.

    Memorandum on Second Amendment

    http://www.justice.gov/olc/secondamendment2.pdf

    Aetna Health Inc v Davila (542 U.S. 200)

    http://neuro.law.cornell.edu/supct/html/02-1845.ZS.html

    Voluntary Participation in Social Security

    http://www.ssa.gov/slge/sect_218_agree.htm

  2. The importatn question is not whether the individual mandate is legal, although that does need to be resolved. The bigger question is – is it practical.

    Frankly, I think the model is flawed. the model is based on the questionable success of Massachusetts program implemented by a Republican governor, as Alan points out. The options available to state governments to expand coverage are severely restricted by the ERISA preemeption. It’s as if they tied the hands and feet of someone and then said, – oh look at that original way of walking – let’s all walk like that.

    But what worked in Massachusetts, where the rate of uninsured was low and income relatively high – does not mean it will work in Texas, or Louisiana or Nebraska.

    That test – and frankly I hope it never gets that far – will determine the future of the Democrats.

    I think we need to abandon the notion of employer sponsored health care as the primary portal into the health care delivery system. But the answer is not an unaffordable individual mandate. The answer is a system that is based on income and the recognition that everyone benefits when everyone has equal access to health care.

  3. Alan, what everybody in the indsustry is talking about is the OBVIOUS: when any thinking human compares the “fines” set by Obama for refusing to buy health insurance against the cost of insurance, they will ALWAYS choose the fines…thus, NO ONE will buy insurance, they will pay the “fines” until they get sick, then apply….the inadequate fines will force massive adverse selection and IMPLOSION of the industry…where is your head?

    • NPG: If you’ve read this blog for any length of time you’ll know that I’ve been making the same point almost from the beginning of this blog in 2007. And I’ve made it often. Unless the requirement to sell coverage is matched by an adequate requirement to buy coverage the result will be skyrocketing premiums. The evidence is clear. Average premiums for individual coverage in New York (which has guarantee issue and no individual mandate) are two-to-three times the average in California.

      I appreciate your restating a point made several times in various ways by many people on this blog. The point can’t be made often enough. However, I’m not sure where the “where is you head?” crack is justified or appropriate. You’ve written a couple of comments that make clear you have a chip on your shoulder concerning me and this blog. I’m not sure why it’s there, but please either remove said chip or read other blogs. Your choice.

    • NPG:

      Alan Katz is entirely capable of speaking for himself…so I’m just speaking for me.

      There have been an abundance of posts, not just by Alan but by others here addressing your concerns though in a less acerbic and “Drama Queen” manner. Apparently, you haven’t been reading these topics and only post when your blood pressure is high enough.

      Your attack on Alan (“where is your head?”) is clearly that of a Pit-bull attack, unnecessary, and out from left field. I would suggest that if you can’t post with civility and respect, I don’t care if you read other blogs or not, just please, don’t post on this one. I can’t imagine anyone here who enjoys reading your verbal exercising.

  4. Hi Alan,
    Thank you for your comments which are spot on. Hypocracy is rampant on both sides of the isle. However the Tenth Amendment is the issue.- The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
    Medical insurance or medical care is not a right but simply a product. The States have reserved the right to determine products suitable for consumption by its people. California and its people are the only ones who should determine if pot or health insurance should be mandated. The Federal Government should not be determining this for States unless an Amendment is ratified by the States.(with barely 50% of congress agreeing with anything its nearly impossible)
    The unfunny part of this is that this has nothing to do with health insurance but is simply an attempt to overthrow the will of the people and the demise of its Republic. This is a grab at control of its people basic rights under the Constitution. Regarding Scalia and Kennedy, I think they got it wrong. I hope that real change is in our future and change that will actually help Americans.

    • Hello and thanks for the comment Andy. I understand the 10th Amendment argument and it might be persuasive. The Supreme Court will decide that and I just find it amusing that Justices Kennedy and Scalia may be demonstrating their somersault-skills.

      You are right that this is a serious issue. I do disagree with you concerning motives. I don’t see the individual mandate as an attempt to overthrow the will of the people nor do I see it as threatening the Republic. Instead I think the individual mandate is a reasonable approach to making America’s health care system work. I just don’t see how you can have a sustainable system in which carriers have to accept all applicants (which everyone in Washington thinks is important) without making every American responsible for obtaining coverage.

      There are other ways to go about implementing bringing everyone into the system (E.g., impose a tax and allow folks to obtain a tax credit against that tax. Or allow carriers to impose higher rates and exclude pre-ex). But the decision is a practical, rather than an ideological one. The republic is safe for the foreseeable future.

      • Alan,

        I agree the individual mandate is a reasonable approach needed, however in my humble opinion Andy has a valid point regarding the Constitution. Concerning the precedent you mention, Kennedy & Scalia stated the government has an unlimited power to regulate. The forthcoming question could be if regulation includes forcing a citizen to purchase a product. Now that would really be a dangerous precedent. I don’t think Kennedy & Scalia will need to demonstrate somersault-skills, but you’re the lawyer not me.

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