Search results for "health care"

How Much Will the Ruling in the Health Care Case Matter?

The Supreme Court will hand down its decision in the Affordable Care Act case in a few days, and there’s lots of apocalyptic rhetoric from both sides about what a decision affirming or reversing might mean for the law and for the Supreme Court. I agree that the decision is likely to be hugely important. But I also think there are some reasons why the mandate decision may end up being less significant than many people think.

First, the challenge to the mandate has had an enormous impact even if the mandate is upheld. The political, rhetorical, and legal attacks on the mandate have caused a significant shift in how the legal culture on both sides of the aisle construes federalism issues. By the end of the Rehnquist Court in 2005, the Rehnquist federalism revolution was mostly dead. When Rehnquist and O’Connor departed and were replaced with Justices seemingly less committed to federalism than they, the prospect for any federalism revival at the Court seemed dim. I remember attending the oral argument in Comstock in January 2010 and being aghast at how uninterested in federalism the conservative Justices were. In just two years, opposing the mandate on constitutional grounds rooted in federalism principles has become the standard Republican position. This change has dramatically revived the right’s interest in limited federal power, and has signaled to the left that federalism concerns must be taken seriously. That reemergence of interest in federalism will continue whether the Court strikes down the ACA or upholds it.

Second, if the oral argument in the mandate case is a good guide, the Court may end up with a test that strongly discourages mandates whether or not this particular mandate is upheld. At oral argument, Justice Kennedy suggested that perhaps mandates should require some sort [...]

Continue Reading 0

Health Care Cases Update

I am right now following the Supreme Court’s announcement of the opinions to be issued today. If the health care cases are among those that come out, I will post an analysis as quickly as possible. Stay tuned….

UPDATE: The Court has finished announcing opinions, and the health care cases were not among them. Neither was the Arizona immigration case. Tune in next week, at the same bat time, same bat place!

UPDATE #2: According to SCOTUSblog, some additional opinions will be issued on Thursday, so it is possible (though probably not likely) that the health care decisions will be issued then. [...]

Continue Reading 0

The Other Big Health Care Case Before the Supreme Court

With all the hoopla surrounding the individual mandate case, the media and most commentators have often given short shrift to the other big health care case the Supreme Court is about to decide: the constitutionality of the Obamacare’s massive expansion of Medicaid. Constitutional law scholar David Oedel recently posted this interesting article on the subject, arguing that the case raises important issues and that the 26 states challenging the law have a stronger case than most pundits think. Oedel is serving as counsel for the state of Georgia, one of the plaintiffs in the case:

As we await the U.S. Supreme Court’s decision on health care reform, it makes sense to recall an under-reported part of the case. Five of six hours of the Supreme Court’s oral arguments in March about the constitutionality of health care reform focused on the individual mandate and got most of the media’s attention. The last hour was left for considering whether the tradition of federal/state cooperation in delivering Medicaid has, in the Affordable Care Act, morphed into unconstitutional coercion of the states…

Until that oral argument, the 26 plaintiff states faced widespread expert skepticism about the states’ constitutional challenge to Medicaid’s expansion. No court has ever before held that the federal government unconstitutionally coerced any state through conditional federal spending. The ACA, though, puts an unusually heavy federal clamp on state “partners” in Medicaid. If any rogue state were to fail to extend free health care to large portions of the lower-middle class, as ordered under the ACA, it could lose all its federal funding for Medicaid for the poor. That funding is by far the largest federal outlay to any state, and is critical to states being able to care for the poor.

Justice Stephen Breyer unexpectedly suggested at oral argument that a

[...]
Continue Reading 0

Do Government Subsidies for Health Care Justify Paternalistic Soda Pop Regulations?

NYU law professor Rick Hills argues that New York Mayor Michael Bloomberg’s ban on large soda pop servings is justified by the existence of government subsidies for health care:

I am inclined to think that denouncing Bloomberg’s proposal as Orwellian is like ridiculing the Food, Drug, & Cosmetic Act as a Stalinist plot or attacking “no smoking” signs in public buildings as a Maoist re-education campaign. Such hyper-ventilated rhetoric against ordinary regulation is making us Republicans look absurd. So long as government subsidizes healthcare costs, regulations to discourage obesity are society’s self-protection, not nosy paternalism. Principled conservative will argue that these subsidies should be reduced so that insurance premiums will reflect the risk of the insured’s behavior. Fair enough…

But no one believes that such subsidies will be eliminated entirely….

Discouraging obesity either through insurance premiums or taxes on sodas (and forcing the purchase of two 16 oz. cups is essentially just a soft-drink tax) is not creating a nanny state: It is avoiding moral hazard by forcing those who undertake risky behavior to pay part of the price of their risk-taking. Despite empty libertarian rhetoric about letting people pay for all of the consequences of their actions, we know that…, the healthcare-subsidized we will always have with us. We will inevitably end up paying for at least some substantial part of at least some folks’ healthcare. So long as such subsidies exist, doing nothing about the effects of soda consumption on obesity is just letting soda drinkers slurp dollars out of their fellow citizens’ wallets.

The problem of externalities created by government subsidies for risky behavior is a real one. But I think that Rick too easily dismisses the far preferable option of dealing with the problem by ending the subsidy. Even if people who are obese [...]

Continue Reading 0

Health Care Reform Costing College Students

How should college students feel about health care reform? The WSJ reports some colleges and universities have dropped student insurance plans or hiked premiums. (More from Peter Suderman.) Perhaps it’s some consolation that the law makes it easier for parents to keep their children on their health plans — they might have to if they want their children to be insured. [...]

Continue Reading 0

One Effect of Severing the Mandate: Ongoing Judicial Involvement With Health Care

Most attention has been devoted to whether or not the Supreme Court will invalidate the individual mandate, and how the legitimacy of the Court will be affected if it invalidates the Affordable Care Act.  Little has been said about the effect of severing the mandate from the rest of the law.  One implication of severance is that, like campaign finance, serious constitutional challenges arising from the Affordable Care Act will continue for years to come, continually pitting the judiciary against the executive branch, and thereby continually calling the Court’s legitimacy into question.

Exhibit One is the challenge to the HHS contraceptives mandate noted by Jonathan below:

Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports hereand here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame, where President Obama delivered the commencement address in 2009.

The best way to remove the Supreme Court from the path of this perpetual conflict is to invalidate the entire ACA, a decision amply supported by existing severability doctrine.  From there, the next Congress will then have to revisit the problems with our current health care system by enacting reforms that enjoy bipartisan support.   Should the Court invalidate the ACA in June, the next election will inevitably be about the precise shape of this health care reform.  The timing of such a decision, therefore, could not be more fortunate for our political process. [...]

Continue Reading 0

Post-Argument Polling on Health Care Reform

The Kaiser Family Foundation just released its most recent polling on health care reform — its first tracking poll since last month’s oral argument in the Supreme Court.  The poll finds little change in public opinion about the mandate.  A majority of respondents both want and expect the Supreme Court to strike down the individual mandate.  A majority also wants the balance of the law to be left intact.  One significant change the poll did find, however, is an increase in reported awareness of the health care reform law’s provisions.  The poll also found an increase in public confidence in the Supreme Court, largely driven by mandate opponents who appear to have been buoyed by the tenor of the oral arguments.

Here are the KFF release, summary, and the toplines. [...]

Continue Reading 0

“Supreme Court’s Ratings Jump Following Health Care Hearings”

That’s the headline from Rasmussen for this poll:

Just before the highly publicized hearing on the constitutionality of President Obama’s health care law, ratings for the U.S. Supreme Court had fallen to the lowest level ever measured by Rasmussen Reports. Now, following the hearings, approval of the court is way up.

Forty-one percent (41%) of Likely U.S. Voters now rate the Supreme Court’s performance as good or excellent, according to a new Rasmussen Reports national telephone survey. That’s up 13 points from 28% in mid-March and is the court’s highest ratings in two-and-a-half years.

Nineteen percent (19%) still rate the court’s work record as poor, unchanged from last month. (To see survey question wording, click here.)

It is impossible to know if the improved perceptions of the court came from the hearings themselves, President Obama’s comments cautioning the court about overturning a law passed by Congress, or from other factors. Approval of the court had fallen in three consecutive quarterly surveys prior to the health care hearings.

The partisan turnaround in views of the court is noticeable. Three weeks ago, 29% of Republicans gave the Supreme Court positive marks for its job performance; now that number has climbed to 54%. Similarly, among voters not affiliated with either of the major political parties, good or excellent ratings for the court have increased from 26% in mid-March to 42% now. Democrats’ views of the court are largely unchanged.

Among all voters, 28% now think the Supreme Court is too liberal, 29% say it’s too conservative, and 31% believe the ideological balance is about right. The number who view the court as too liberal is down five points from a month ago.

Most voters want the health care law repealed and 54% expect the Supreme Court to overturn it.

  [...]

Continue Reading 0

President Obama’s Comment About The Health Care Case

In a press conference today with the President of Mexico and the Prime Minister of Canada, President Obama was asked the following question by a reporter:

After last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who’ve become insured as a result of the law?

President Obama responded, in relevant part:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.
. . .
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Taken in context, President Obama’s statement strikes me as pretty much what you’d expect a politician to say in such circumstances. He’s confident that his side will win because he has the precedents on his side. He’s confident his side [...]

Continue Reading 0

Koppelman on Health Care and Child Labor

My friend and sometimes intellectual sparring partner, Andrew Koppelman, writes:

The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: The Court declared that if Congress could do this, “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” The Supreme Court’s invalidation of the law astounded even those who had most strenuously opposed enactment and provoked a wave of national revulsion and the rapid enactment of a second law — a tax on products of child labor — which the Court also struck down, in 1922. The decision was overruled in 1941. The Court did not save America; what it actually accomplished was to thwart democracy – the law passed by 337-46 in the House and 52-12 in the Senate – and consign large numbers of children to the textile mills for two decades.

First, by preserving limitations on the Commerce power, the Court did in a sense save America. In 1935, the Supreme Court unanimously invalidated the National Industrial Recovery Act, surely (along with the first Agricultural Adjustment Act, also invalidated by the Court), the single worst piece of national legislation in the the twentieth century, if not all of American history. (The Act cartelized, with government enforcement, every significant American industry). The Court invalidated the Act both for an overbroad delegation of legislative authority to the present, and because, as in the child labor cases, Congress was purporting to regulate local activity under the authority of its power to regulate interstate commerce. Historians will tell you that the NIRA was already [...]

Continue Reading 0

Lawyers Who Voted for Obama Want his Health Care Law to be Upheld

That’s the gist of this L.A. Times front page article by David Savage, but the headline instead promises
Signs of Supreme Court activism worry Reagan administration lawyers.

It turns out that the only “Reagan Administration lawyers” they are able to quote are Charles Fried and Doug Kmiec, both of whom quite publicly endorsed candidate Obama in 2008.  Kmiec, in fact, was rewarded with an ambassadorship for his service.

The article does note  that Reagan appointee Laurence Silberman voted to uphold the mandate.  But as an appellate judge Silberman is bound to interpret precedent as best he can.  We don’t know from his ruling (a) what he would do if he were on the Supreme Court, where he could feel free to interpret precedent as he wished, or ignore it entirely; (b) what he would like the Supreme Court do do; much less (c) whether he’s “worried” about “signs of Supreme Court activism.”

So all the article tells us is that two prominent  lawyers who endorsed Obama, both of whom by all indications think his health care law was a good idea (Fried authored an amicus brief supporting it, and calls it a “free market alternative”; note to Fried: you don’t need a 2,700 page bill, supplemented by thousands and thousands more pages of regulation, to establish a “free market”) want it to be upheld.  That’s worth a front page article? [...]

Continue Reading 0

Jeffrey Toobin: Health Care Law in Grave, Grave Trouble

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine [but not Randy’s, Ilya’s, Jonathan’s or mine!], that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”

Toobin may or may not be right, but after reading the oral argument transcript it’s pretty darn hard to see this as a slam-dunk 8-1 ruling favoring the government. [...]

Continue Reading 0

Kennedy’s “Heavy Burden of Justification” Approach, and Whether the Nature of the Health Care Insurance Market Can Satisfy It

Reading the tea leaves of Justice Kennedy’s questions in the transcript of this morning’s argument, Kennedy seems to be of the view that requiring a mandate under the Commerce Clause requires a “heavy burden of justification,” and that his major question is whether the uniqueness of the health care market satisfies that heavy burden. Here are Kennedy’s comments, with the first block of questions to SG Verilli arguing in defense of the mandate, and the second to Michael Carvin challenging the mandate:

1) Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

2) But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and

[...]
Continue Reading 0

Shortcomings of the “Everyone Uses Health Care” Rationale for the Individual Mandate

The biggest weakness in the case for the constitutionality of the individual health insurance mandate is that it collapses into a rationale for virtually unlimited federal power. To deal with this problem, defenders of the mandate have put forward a variety of arguments claiming that health care is a special case.

The most popular one, recently restated by Walter Dellinger and Linda Greenhouse, is that health care is a special case because everyone or almost everyone uses it at some point in their lives. However, there is a serious flaw in this argument that mandate defenders have yet to find a way around. I have pointed it out several times over the last two years, including here:

The fact that most people eventually use health care does not differentiate health insurance from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that the government does not argue that everyone will inevitably use health insurance. Instead, they define the market as “health care.” The same bait and switch tactic works for virtually any other mandate Congress might care to impose.

Consider the famous example of the broccoli mandate raised by Judge Roger Vinson in the Florida case. Not everyone eats broccoli. But everyone inevitably participates in the market for “food.” Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government’s argument. The same goes for a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. There are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation.” We all need

[...]
Continue Reading 0

Politico’s “Four Hard Truths of Health Care Reform”

On Friday, Politico reported that President Obama’s “signature promise” about the Affordable Care Act — that “if you like your health care plan, you can keep your health care plan” — “turns out” not to be true for many people.  This is “an inconvenient truth at a really inconvenient time.”  Moreover, as Politico notes, the law is not achieving some of its other goals either.  These are some of the “hard truths” confronting health care reform’s defenders as the law nears its second anniversary.

Here are Politico’s “four  hard truths”:

  1. Some people won’t get to keep the coverage they like;
  2. Costs aren’t going to go down;
  3. It’s just a guess that the law is going to pay for itself;
  4. “The more they know, the more they’ll like it” isn’t happening.

According to the Politico story, this is how things happened to turn out.  Yet many of the law’s critics predicted these results.  Indeed, it seems many of the law’s critics had a better of understanding of what the law would do then some of its proponents. [...]

Continue Reading 0