Challenges to the Health Care Law
http://thedianerehmshow.org/shows/2011-02-03/challenges-health-care-law
Last night Senate Democrats defeated an attempt by Republicans to repeal President Obama’s health care legislation. The vote went strictly along party lines, though both parties joined forces to repeal an unpopular tax provision on small businesses. In January, House Republicans voted to repeal the act. Earlier this week, a federal judge in Florida ruled the law void, bolstering those trying to overturn it. It’s the fourth suit to have been decided. Two ruled part or all of it unconstitutional while the other two upheld it. Twenty more cases are pending. We'll discuss what this means for the future of health care reform.
Guests
Mary Agnes Carey
senior correspondent with Kaiser Health News. She's most recently served as associate editor for CQ HealthBeat, a daily report on health care policy. She has also served as Capitol Hill Bureau Chief for CQ.
Julie Rovner
health policy correspondent for NPR, author of "Health Care Policy and Politics A-Z," and contributing editor for National Journal Daily.
Jeffrey Rosen
professor of law at the George Washington University and legal affairs editor of "The New Republic." He's the author of "The Supreme Court," "The Most Democratic Branch," "The Naked Crowd," and "The Unwanted Gaze."
Comments
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hainc on February 3, 2011 @ 10:31 am
wrote: "Why does the media seem to ignore the fact that repeal votes have been more bipartisan than the votes that originally passed the legislation?"
Why do you ignore the fact that for the past four years the Republi-Cons, like good party apparatchiks, have marched in lock-step in support of their partisan ideology, while Democrats (never an organized political party) have fought among themselves?
What I want to know is why doesn't the Senate filibuster every Republi-Con attempt to repeal this law. Turnabout is fair play; the Republi-Cons forced the Democrats to produce 60 votes to pass the law, let's force them to get 60 votes to repeal it.
Also, what the Senate should do is vote on measures to repeal the law piece-by-piece. Let's put the Republi-Cons on record favoring the specific repeal of the popular parts of the law: insurance for 26 year olds, closing the infamous "donut hole" in the Republi-Con Medicare prescription drug plan, banning rescission, banning the waiver for pre-existing condition, creating the insurance exchanges (which will enable people buying in the individual market to pay lower premiums like people in group plans can), removing the life time cap on benefits, etc. - I guarantee the Republi-Con zeal for repeal (without telling us what will replace the law) will vanish if they are called upon to specifically eliminate these popular provisions. Maybe their supporters will finally wake up and realize the Republi-Cons got elected by offering a "pig in a polk"!
I do agree the auto insurance analogy doesn't work, neither does the equally silly one about broccoli.
Finally, everything being said about the court decisions (all four of them) is just empty blather. The only decision that counts is the one the Supreme Court will render.
bariordan on February 3, 2011 @ 10:21 am wrote: “Also a lot of money is wasted on families emotions, they are not ready to see a loved on go and therefore we spend 10's of thousands of dollar per patient per day to keep them alive until the family is ‘ready’. ”
Well, then, you’d love the real-life “death panel law”, not the current Federal healthcare law (despite the lies of “Saint Sarah of Alaska” and the Republi-cons), but the Texas Advanced Directive Act, signed by then Governor Bush, which allows doctors to end treatments they consider “futile” against the wishes of their patients, and without regard to whether the patients can actually pay for it.
Or how about Arizona, which is busy balancing its budget with more tax cuts for corporations, while cutting funding for life saving transplants and treatments?
There are your real “death panels” folks. There’s the Republi-Con version of “healthcare”: if you can’t afford it, drop dead!
vrose5 on February 3, 2011 @ 10:32 am wrote: “What is the argument for why the fed govt can require Americans to contribute to social security and medicare, but can not require Americans to have individual health insurance?”
The government can tax us to pay for government programs, this is a tax (or a penalty for those who want to play word games instead of dealing with facts) designed to “encourage” the purchase of insurance. The question is: can the power to tax be used in such a way?
The answer might be yes. I’m disappointed none of the guests discussed the case of Steward Machine Co. v. Davis, 301 U.S. 548 (1937) in which the Supreme Court upheld a payroll tax the Federal government imposed on employers. The law also granted employers a credit against the tax for contributions to a state unemployment fund. The tax (and credit), of course, were created to encourage such contributions, much like the tax penalty that encourages the individual mandate.
melissak on February 3, 2011 @ 10:40 am wrote: “What I don't get is how people whose employers offer healthcare--no matter how good/bad the plans are--are FORCED to pay for healthcare, . . . .”
If you’re referring to the individual mandate, the short answer is they’re not! Employer provided insurance satisfies that requirement, and the penalty tax won’t be imposed. That’s one of the things I find so hysterical about this “debate” - a large segment of people objecting to the mandate (the already insured, including those on Medicare and Medicaid) are unaffected by the mandate!
As for “free healthcare” - unless you are referring to the Emergency Medical Treatment Act, I’m not sure what you mean. But that provision only applies to people who show up at hospitals needing life-saving treatment (and even then, it doesn’t guarantee free care, just that the hospitals have to treat you regardless of your ability to pay - in other words: treatment first, bill later.)
By the way, that law was signed by that old “socialist” Ronald Reagan.
jslayton321@yah... on February 3, 2011 @ 10:35 am wrote: “I think the under lying problem is the recipients of HC services are not the payers.”
Huh, you’re assuming every person receiving healthcare (especially those with “loved ones” on life support) aren’t paying for the treatment. I’d like to see some evidence to back that up.
I’ve been to the hospital two times for kidney stones. I entered through the Emergency Room. I received treatment (surgery to remove the damn things). And I paid for it through my employer provided insurance, and my co-payments. I suspect the majority of Americans receive healthcare the same way (after all, the majority have and can afford insurance).
Spope517 on February 3, 2011@ 10:38 am wrote: “Why isn't it against my constitutional rights to pay via taxes, for those who don't have health care, fall ill then run to emergency rooms and can't pay?”
Because there is no constitutional right to pay taxes only for the government programs you agree with. I’m sure many people who protested the Vietnam and Iraq wars would have loved to be able to not pay for them.
The issue being litigated is not a question of individual rights (like freedom of religion or freedom of speech). It’s a question of Federalism: the allocation of power between the national and state governments. There is nothing inherently unconstitutional in a government requiring citizens to buy insurance. Massachusetts does that with health insurance, and all states do that with car insurance. The constitutional question is whether the Federal government can do this. I think the answer is yes, but it’s a very close question - not a “slam dunk” for either side.
Norm Davis on February 3, 2011 @ 10:39 am wrote: “Please explain the notion of "Severability" in the context of the new law NOT containing a severability clause (I've been told) and if this is true, it seems that the entire law has to be dealt with instead of various sections of it.”
A severability clause in legislation simply explicitly declares that if one part is found void that doesn’t mean the entire law must be struck down. The other parts are “severable” (as far as possible). The clause isn’t really necessary, since there are well-established precedents (judicial decisions) requiring the same approach. However, the absence of such a clause is certainly poor draftsmanship.
The Florida judge’s sweeping declaration that the entire healthcare law must stand or fall as one complete unit is the part of the decision I am reasonably sure will be reversed. (And you’ll almost never hear me make such a prediction.) I certainly don’t see any “necessary connection’ between the mandate (the part the judge declared unconstitutional) and the ban on waivers for pre-existing conditions, the establishment of insurance exchanges, or the thousands of other provisions and benefits the law provides.
Clay on February 3, 2011 @ 10:45 am wrote: “All this talk about how the courts may interpret the Constitution is frustrating... Why don't Democrats simply seek to AMEND the Constitution so that there's no question about these issues? I understand it is very difficult to accomplish a Constitutional Amendment, but isn't that the point? Huge issues like these should be subject to that extra scrutiny and associated laws should be more difficult to pass.”
You answer your own question. If we had to amend the Constitution every time a new piece of legislation was being considered we’d never have any new laws at all. (For you conservatives who think that’s a great idea, consider this: do we need to amend the Constitution to ban so-called “partial birth abortion”, or to authorize the creation of an Air Force - which is nowhere mentioned in the Constitution?)
The Constitution lays out general principles of our government, its powers, our rights, etc. The rest is precisely the subject of legislation (by Congress or the state legislatures). As Chief Justice John Marshall long ago declared:
“A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. It nature, therefore, requires, only that its great outlines should be marked, its important objects designated, and the minor ingredient which compose those objects be deduced from the nature of the objects themselves.” - McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819), emphasis added.
This process of “deduction” is what the courts are now engaged in.
By the way, for anyone “captivated” by the criticism that our Constitution is much shorter than this legislation (and most legislation for that matter) - now you know why!
ES:
I'll agree with one thing, you know blather!
However, you confuse being on the side of truth and justice with lock-step support and being ideologically corrupt and inept with disorganization.
It would take years to go through the 2000-page legislation piece-by-piece, but then we would have known what was in it before we passed it.
If EVERYONE can "be seen" and treated at at an emergency room and NOT refused treatment, then really EVERYONE has health care.
True such care is limited and is really
inefficient and not very preventative in nature, but it is health care.
The real issue is WHO PAYS
the health care costs.
Now, without change and reform, those of us who pay for insurance, pay taxes, and
pay medical bills are paying for the costs of health care-- for
ourselves and all of those who do not pay.
Is this fair and just?
Yet, change and reform is called
"Obamacare" and characterized as nasty and evil--"government interference."
Perhaps one day honest and genuine
"problem-solving"
will works its way through all the
greed, selfish and self-serving manipulation, and political games.
Only then, can we truly achieve QUALITY health care available to ALL.
1) There is no "interstate commerce" to speak of in this debate. Insurance companies are not allowed to compete across state lines. The only thing that fits it into the debate is the nature of the nat'l gov't and its' self-assumed responsibilities to ensure care in emergency situations.
2) Gov't has the constitutional right to REGULATE, not MANDATE, interstate commerce.
3) The tax for refusal to carry insurance is a Bill of Attainder.
According to Wikopedia, the law provides for a waiver to the individual mandate in any state that can provide an alternative that accomplishes the same goals, as follows:
"A state may apply to the Secretary of Health & Human Services for a waiver of certain sections in the law, with respect to that state, such as the individual mandate, provided that the state develops a detailed alternative that "will provide coverage that is at least as comprehensive" and "at least as affordable" for "at least a comparable number of its residents" as the waived provisions. The decision of whether to grant this waiver is up to the Secretary (who must annually report to Congress on the waiver process) after a public comment period."
Why don't the politicians who object to the individual mandate develop an alternative and apply for a waiver?
hainc on February 3, 2011 @ 3:22 pm wrote: “However, you confuse being on the side of truth and justice with lock-step support and being ideologically corrupt and inept with disorganization. It would take years to go through the 2000-page legislation piece-by-piece, but then we would have known what was in it before we passed it.”
Actually, sir, as that last sentence demonstrates, it is you who are guilty of giving “lock-step support and being ideologically corrupt”.
You were obviously employing that old Republi-Con deliberate misquote of what Pelosi said about the healthcare law. I’ve pointed out several times (I believe even to you) that what she actually said is quite different from what they (and you) claim. Here’s the exact quote, and the source:
“But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” - http://pelosi.house.gov/news/press-releases/2010/03/releases-March10-con...
Gee, hainc, why do you Republi-Cons always omit that last part? Because it utterly destroys the lie you’re trying to tell! She wasn’t claiming it had to be passed before it could be read (in fact, it had been available on the internet for weeks, and had been debated for over a year). She was expressing the (foolish) hope that once passed people would take the time to read it, and see how false were the claims Republi-Cons were making about it.
Of course, I can’t help noticing that in true Republi-Con style you just evade and ignore the points I’ve made rather than actually respond to them. Probably because there’s no response a partisan ideologue like you is capable of making. Doing so involves facts and reason, something you tend to avoid in favor of conclusory utterances.
P.S. - The legislation is not 2,000 pages long. If you give me your e-mail address I’ll be happy to send it to you, and you can see for yourself!
Dan Fulton on February 3, 2011 @ 3:59 pm wrote: “If EVERYONE can "be seen" and treated at at an emergency room and NOT refused treatment, then really EVERYONE has health care. True such care is limited and is really inefficient and not very preventative in nature, but it is health care."
While I agree with the overall point of your entire Comment, I feel I must mention two things about this part:
1) Waiting until a condition requires emergency treatment isn’t just “inefficient”. In itself it can make the difference between life and death. True a diabetic who cannot afford insulin can be rushed to an ER when they go into a coma, but their chances of survival aren’t very good. Similarly, waiting for a heart attack before being treated for high cholesterol is hardly conducive to long term survival, being able to afford the medicines that lower the cholesterol is more likely to prolong life.
2) ER treatment is probably the most expensive form of treatment. Again, a daily shot of insulin, or a regular dose of statins (for cholesterol) is a lot cheaper than surgery and a stint in the Intensive Care Unit. Since we all end up paying for this (one way or another), it seems to me that providing the insurance to pay for preventive medicine makes more sense. Whatever happened to “a stitch in time saves nine”?
somegy on February 3, 2011 @ 10:00 pm wrote: “1) There is no "interstate commerce" to speak of in this debate. Insurance companies are not allowed to compete across state lines. . . . 2) Gov't has the constitutional right to REGULATE, not MANDATE, interstate commerce. 3) The tax for refusal to carry insurance is a Bill of Attainder.”
You do know practicing law without a license is a crime? Especially when you don’t know what you’re talking about.
1) Insurance companies operate nationwide, and their insurance coverage is nationwide as well. True, I purchased my policy through Blue Cross/Blue Shield of Arizona, but if you believe they are a totally separate company from Blue Cross/Blue Shield of New York, California, etc., with no connection between them, then there’s a bridge in Brooklyn I’m dying to sell you - cheap!
Furthermore, my Arizona insurance covers my medical treatment wherever I go. In fact, I had a kidney stone attack while visiting Arizona (before I later moved here). Guess what? My New York insurance policy paid for the surgery to remove the thing.
And, of course, the practice of medicine today is impossible without interstate commerce. For example, my Arizona doctor received his MD from Baylor University in Texas!
Oh, and the Insurance Exchanges the new law creates in 2014 will allow selling insurance across state lines.
2) The power to regulate includes the power to mandate. You can no longer buy a new car without seatbelts - a government mandate that saves lives, and which is based on the Interstate Commerce clause.
TO BE CONTINUED
3) Bill of Attainder: A legislative act, directed against a designated person, pronouncing him guilty of an alleged crime, (usually treason,) without trial or conviction according to the recognized rules of procedure, and passing sentence of death and attainder upon him.
From Black’s Law Dictionary, Revised Fourth Edition (West Publishing Co., 1968), page 162 (emphasis added).
Obviously the penalty tax doesn’t fit that definition. Nor does it result in “corruption of blood” - a consequence of a Bill of Attainder, and a legal term I’ll let you look up!
Captain Tex on February 3, 2011 @ 10:52 pm wrote: “Why don't the politicians who object to the individual mandate develop an alternative and apply for a waiver?”
I’m sure you were asking a rhetorical question, but just in case: the answer is obvious. Because they’d rather have a partisan issue and create problems than be part of a solution!
Conservative leaders in the U.S. hold that the for-profit American health care system is the best in the world, and, as proof, cite cases of foreign citizens who opt to come to the United States for medical treatment rather than rely on their nations’ state-run “socialist” system. But they conveniently neglect to mention that those foreign citizens are well-to-do individuals for whom cost is not a factor. For ordinary foreign wage earners the cost of medical treatment in the U.S. would be prohibitive. A Canadian clerk earning $25,000 year, for example, couldn’t possibly afford to pay for a $30.000+ heart-bypass operation in the U.S. Though he might have to wait longer in line for the procedure, his only viable option is to rely on his Canadian public system, or even pay out of pocket under a private plan, the average cost under such a plan being one-third of a comparable one in the U.S. In countries like India, Indonesia, China, South Korea and Thailand, it would be even less, and with no difference in quality or success rate, their surgeons, hospital care and state of the art equipment being every bit as good as that in America. Maybe the American for-profit health care system is, as jingoistic U.S. leaders claim, the best in the world, but if that’s the case, Why is it that no other country in the world would consider adopting it?