Nel's New Day

June 28, 2012

SCOTUS Keeps Health Care Act

“It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without insurance. Such legislation is within Congress’ power to tax.” Chief Justice John Roberts included this statement in his majority ruling that retained the Affordable Care Act with the exception of the Medicaid piece that threatened states not extending Medicaid with the government’s withdrawing all Medicaid funding. States that do not expand eligibility will lose only the funding for the expansion.

Roberts was joined by Justices Stephen G. Breyer, Ruth Bayer Ginsburg, Elena Kagan, and Sonia Sotomayor.

People guessing when the justices would deliver their decision waited for weeks until the very last day of their session. Conservatives were confident that they would be victorious in the ACA being struck down, and Democrats worried about the same result. Out of 21 constitutional law experts in the country, 19 thought the ACA is constitutional, but only eight of them predicted that the court would uphold it because of the behavior of conservative justices during the oral argument.

Maybe the most remarkable thing about the ACA is how little people understand it and how much they hate it. The biggest problem with evaluating the “hate,” however, is that there were two reasons for not liking the ACA: either people didn’t want any mandated health care, or they wanted a single-payer plan. Those with the latter opinion didn’t oppose the mandate, but the polls never differentiated between the two.

Where did the hate come from? Conservatives railing against today’s decision  have forgotten that the conservative public policy research institution, Heritage Foundation, proposed mandated health coverage over 20 years ago. Before President Obama, the individual mandate had Republican support. Conservatives who originally supported it during a Republican administration came out in solid opposition after President Obama was elected and pushed for this law.

Democrats got nervous about being part of mandated health care after the Tea Party revolution, leaving only attacks on the law. The polls went down on health care, and the progressives said even less about it, causing the polls to sink more in a downward spiral. The media joined the conservatives in their frequent use of “government run” to describe the act despite the fact that the law require people to buy insurance from private corporations.

One reason that many people thought that ACA would be struck down is that they no longer see SCOTUS as an impartial court that uses constitutionality to rule. Retired Justice John Paul Stevens wrote in his minority dissent to the Bush v. Gore decision that the ruling threatened “the nation’s confidence in the judge as an impartial guardian of the rule of the law.” The Citizens United case that was confirmed on Monday completed the threat, closing the door on democracy in this country. Seventy-one percent of people in this country believe politics would influence the Supreme Court’s ruling, compared with 20 percent who said the court will decide the case solely on legal merits.

As pieces of the ACA started going into effect, more and more people  appreciated it: 86 million people have received free preventative care, 105 million no longer face a lifetime cap on benefits, as many as 17 million children can no longer be denied coverage because of preexisting health conditions, and 6 million young people under the age of 26 can be included on their parents’ insurance policies.

Despite the plaintiffs’ claim that ACA is not constitutional, they showed that they believed it is in their brief. All people need to buy health insurance—the “individual mandate”—because companies would go bankrupt or policy costs would be unreasonably high if people bought it only after they get sick. The Constitution authorizes Congress “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin 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.” He took exactly the opposite position in his dissent today.

Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded. So the plaintiffs admitted that the Scalia Rule applies in this case.

Who has gained today? According to Avalere Health, the swing states benefit the most, getting insurance access to about 22.4 million people and subsidies for another 7.5 million. About 15 million people in those states will be eligible for Medicaid if those states decide to extend the program with federal funding.

Women gained big time today in terms of contraception and elimination of discrimination in costs for insurance policies. At this time, women pay $1 billion more for health insurance than men. Women pay more than men in 92 percent of best-selling health plans within states that permit gender rating. In most states, non-smoking women are commonly charged more than even smoking men. Even with maternity coverage excluded, nearly a third of plans charge women ages 25 to 40 pay at least 30 percent more or even higher than men for the same coverage.

All poor people gained today. The New York Times wrote, “When poor people are given medical insurance, they not only find regular doctors and see doctors more often but they also feel better, are less depressed and are better able to maintain financial stability, according to a new, large-scale study that provides the first rigorously controlled assessment of the impact of Medicaid.”

Those who become very ill gained today. ACA ends lifetime limits on coverage in 2010. It phases out annual limits on coverage by 2014, important for people with high medical bills from conditions such as cancer.

Taxpayers have also gained today because they no longer have to pay for uninsured people to go to emergency rooms and clinics. Because people are required to have health insurance, their health costs will be much less—and paid for by insurance. And Thomas Jefferson gained today: one measure he supported would have required people to pay into a public health insurance.

Even insurance companies will gain from additional customers although it has lost $1.1 billion in rebates to the insured. ACA requires that insurance companies spend at least 80 percent of subscriber premiums on health-care claims and quality improvement initiatives. According to a recent report, 12.8 million people will receive rebates this year with an average of $151 per household.

Republican lawmakers are spitting mad and  intend to put the ACA up for a vote in the House on July 9. Mitt Romney has accused President Obama of spending all his time on the lost cause of “Obamacare” instead of the economy. The Republicans plan to do exactly what Romney accused the president of.

Dissenting justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas use the same convoluted verbiage that other conservatives do: even constitutional provisions must be ruled unconstitutional because “the Act’s other provisions would not have been enacted without” it central elements, the mandate and the Medicaid provision. They might be able to get a very high price for their crystal ball that looks into the future.

They continue:

The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

To reach this conclusion, these four had to not only reject a century of Commerce Clause jurisprudence but also ignore the Necessary and Proper clause, and Congress’ taxation power. Their belief in the “sovereign states” is ironic when considering that these same conservatives voted against states rights in one of the decisions announced on Monday, the continuation of Citizens United. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

President Obama gave an impressive speech describing the advantages of ACA. Just before his speech, Romney delivered his usual list of lies in criticizing ACA:

“Obamacare adds trillions to our deficits and to our national debt.” PolitiFact decribes this statement as “false.”

Obamacare “puts government between you and your doctor.” All insurance is  with private companies.

“Having 20 million people, up to that number of people, lose the insurance they want, is simply unacceptable.” If he’s talking about people who get their insurance through employers, their insurance companies are frequently changed, and ACA requires more coverage than many people have now. If they change, they benefit.

“And something that Obamacare does not do that must be done in real reform is helping lower the cost of healthcare and health insurance. It’s becoming prohibitively expensive.” The only way that progressives could lower healthcare cost is by regulation, a permanent no-no by conservatives.

From a mockery of Romney’s speech in The Borowitz Report: “I vow to repeal this law on my first day in office,” he told a crowd at a campaign rally.  “Until then, I will work tirelessly to make people forget that I used to totally love it.”

March 31, 2012

More Supreme Court/Health Care Questions

After a recent blog, I really thought that the Supreme Court/health care discussion was gone until a decision, possibly in June, but the topic seems to be the gift that keeps on giving. First, I’m delighted that the progressives have taken over the formerly pejorative term “Obamacare.” After the president’s speech in which he said  that “Obama does care,” I think of that every time I hear the word and hope that everyone else does.

Personally, I’m one of those people opposed to Obamacare because it doesn’t have single-payer universal coverage; insurance companies make too much money from the watered-down law that Congress finally passed. When I look at the polls, I wonder how many people opposed to Obamacare agree with me. It seems that a Republican attorney general in one of the 26 states that filed a lawsuit against Obamacare agrees with me. Louisiana Attorney General Buddy Caldwell opposes Obamacare for the same reason that I do. “Insurance companies are the absolute worst people to handle this kind of business,” he said. “I trust the government more than insurance companies.” Caldwell endorsed a single-payer health care system, saying it’d “be a whole lot better” than Obamacare.

The plaintiffs (those 26 states) conceded that a universal health insurance program would be constitutional if the government taxed the people and then refunded it to people who have insurance. I don’t understand the difference, and Justice Sonia Sotomayor didn’t either. Declaring Obamacare unconstitutional would mean that the justices just didn’t like the language in the Affordable Care Act.

Justices Samuel Alito and Antonin Scalia seemed to have worried more about whether Obamacare was fair to everyone than whether it was constitutional. During oral arguments, Scalia used an early legislative complaint about Sen. Ben Nelson being offered money for his state if he voted for Obamacare, an action called the “cornhusker kickback.” He showed his ignorance by assuming that this was in the act although it was never approved. As former Reagan Solicitor General Charles Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.

Justices seem to prefer legislating instead of judging. Alito talked about unfair insurance costs for the young while Chief Justice John Roberts worried about whether parts of the law would stand if others were done away with. As Eugene Robinson said, Roberts sounded more like the House Whip or a lobbyist than the top judicial figure in the country. Fortunately, the so-called “judicial activists” reminded Roberts that “the merits of the bill” belong to Congress and not the court. Sotomayor asked what the problem was with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.”

The conservative justices, however, just kept on with the strange hypotheticals that legislators had already worried to death. For example, they asked, if they allowed the government to force purchase of health insurance, were requirements for burial services, cars, and broccoli far behind? Despite the fact that broccoli and health insurance have no similarity, it’s something that conservative legislators–and now Supreme Court justices–obsess about.

Roberts went back to warring against women. When he talked about people being required to pay for coverage they would never use, he used the examples of “pediatric services” and “maternity services.” I’ve noticed that no man has ever used prostate surgery and medical remedies for erectile dysfunction when giving examples of coverage that not all people require.

Again and again, the so-called liberals point out that the conservatives introduced the need for universal health care during the late 1980s. As Stuart Butler, of the highly conservative Heritage Foundation, said, “If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services–even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”

Twenty years later, conservatives take the position that people should let others die rather than requiring them to pay for health insurance. Slate’s Dahlia Lithwick wrote, “This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.”

If the Supreme Court can overturn the health care act, it can probably do away with public education and safety. Republican presidential candidates already want to wipe out any federal involvement in education. Imagine this scenario regarding your safety. When you call the police or fire department because of a prowler or other safety issue, the person at the other end asks for you for your public safety number. If you haven’t paid into public safety insurance, they might then request a credit card number to verify that you can pay for the police or firefighter to come to take care of your problems. Conservatives would define this as “small” or “limited” government that also subjects women to thousands of laws on our bodies.

Massachusetts (with its successful Obamacare) has a 4.9 percent rate of those without health insurance while the rate in Texas is at 27.6%. That percentage compares with 17.1% of all people in the United States who lacked health insurance in 2011. Therefore, with a population of 25.7 million, Texas has over 7 million uninsured people, over 13 percent of the over 53 million uninsured people nationwide. Texas is an example of conservative, “limited” government—people in poverty without insurance. That is what can happen to the United States if the Supreme Court decides to do away with the provisions in Obamacare.

Until June all the young people under 26 on their parents’ health insurance plans, the seniors saving money on their prescriptions, the people with pre-existing conditions who could lose their insurance, and everyone else now benefiting from Obamacare can wonder about their fates. Meanwhile, start saving money in case we have to purchase public safety insurance.


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