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Health bill and gun ownership

By on November 24, 2009 12:16 pm in Congress, Guns, Health Care

Today’s Washington Examiner has an article about the concerns that Gun Owners of America has raised about the health care bill which is currently on the Senate floor. I am quoted therein, and I think that GOA has a good point. The Examiner article concludes with  a contrary quote:

“It is very clear they are misreading the bill,” said Igor Volsky, a health care researcher for the Center for American Progress, a liberal think tank. “All this bill does is define what a wellness program is. It is a broad definition, but it is not broad enough to net gun ownership.”

Let’s look at the bill. The rules for a “Wellness Program” begin on page 87. In brief, if you participate in a Wellness Program, you can get a health insurance premium discount of up to 30%. Stated another way, if you don’t participate in a Wellness Program, you will pay a substantial insurance rate penalty for not doing so.  The definition of a “Wellness Program” begins in paragraph (B) on page 88:

“(B) The wellness program shall be reasonably designed to promote health or prevent disease. A program complies with the preceding sentence if the program has a reasonable chance of improving the health of, or preventing disease in, participating individuals and it is not overly burdensome, is not a subterfuge for discriminating based on a health status factor, and is not highly suspect in the method chosen to promote health or prevent disease.”

Pages 29-30 mention some of items that “Wellness and Prevention Programs” “may include.” The phrasing does not appear to exclude other items. In any case, the item for “Healthy lifestyle support” is broad enough to include almost anything.

This definition is extremely broad, and the assertion that it is not broad enough to [...]

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Dean Flier on Health Care Debate

By on November 24, 2009 8:57 am in Health Care

Last week, Harvard Medical School Dean Jeffrey Flier commented on the debate over health care reform.  His article begins:

As the dean of Harvard Medical School I am frequently asked to comment on the health-reform debate. I’d give it a failing grade.

Instead of forthrightly dealing with the fundamental problems, discussion is dominated by rival factions struggling to enact or defeat President Barack Obama’s agenda. The rhetoric on both sides is exaggerated and often deceptive. Those of us for whom the central issue is health—not politics—have been left in the lurch. And as controversy heads toward a conclusion in Washington, it appears that the people who favor the legislation are engaged in collective denial.

Our health-care system suffers from problems of cost, access and quality, and needs major reform. Tax policy drives employment-based insurance; this begets overinsurance and drives costs upward while creating inequities for the unemployed and self-employed. A regulatory morass limits innovation. And deep flaws in Medicare and Medicaid drive spending without optimizing care.

Speeches and news reports can lead you to believe that proposed congressional legislation would tackle the problems of cost, access and quality. But that’s not true. The various bills do deal with access by expanding Medicaid and mandating subsidized insurance at substantial cost—and thus addresses an important social goal. However, there are no provisions to substantively control the growth of costs or raise the quality of care. So the overall effort will fail to qualify as reform.

Read the whole thing. [...]

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Could an Individual Mandate Violate Article I, Section 9?

By on November 19, 2009 9:22 am in Federalism, Health Care

Most discussions about the constitutionality of an individual mandate in health care reform proposals have focused on whether such a mandate could be justified under the federal government’s enumerated powers in Article I, section 8. (See, e.g., these VC posts.)  Some (including me) have opined that, under existing case law, an individual mandate would probably pass muster.  For example, under existing precedent I think it likely the Court would see an individual mandate as a necessary and proper incident of comprehensive regulation of health care markets, as a mandate is necesary to prevent other aspects of health care reform (such as a ban on refusing to cover preexisting conditions) from driving up health care markets.  (Of course, were the Court to apply the original public meaning of the relevant provisions, an individual mandate would be out of bounds.)  But in focusing on Article I, Section 8, I wonder whether we’ve ignored another potential constitutional problem with provisions of Article I, section 9.

As I understand the current proposals, the individual mandate would operate as follows: A tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans.  The constitutional problem would arise if this tax is considered a “direct tax.”  Why?  Because Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  “So if mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

Do the respective individual mandate provisions constitute direct taxes?  I’m not sure.  “Indirect” or so-called event taxes are not subject to apportionment under Article I, section 9, [...]

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Health Care and Federalism

By on November 5, 2009 5:39 pm in Federalism, Health Care

Emory law professor Robert Schapiro has an op ed arguing that the federal mandate requiring individuals to purchase health insurance included in the current health care bill is both constitutional and consistent with federalism [HT: Alison Schmauch]. I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other defenders of the constitutionality of the individual mandate, Schapiro doesn’t even consider the possibility that that precedent is wrong. For reasons I describe here, the mandate is inconsistent with the text and original meaning of the Constitution. Even if the Supreme Court decides that the mandate is constitutional, members of Congress and the president have an independent duty to assess the constitutionality of the legislation they vote on and sign. They all have taken oaths to uphold the Constitution, not merely what the Supreme Court says the Constitution means. If the courts rule that a particular congressional or executive action is unconstitutional, the other branches of government should obey. Otherwise, the courts would be unable to serve as an effective check on legislative and executive power. But no constitutional principle prevents Congress and the president from interpreting their authority more narrowly than the Supreme Court does.

In fairness to the congressional Democrats who support the health insurance mandate, it must be pointed out that the Republicans didn’t exercise constitutional self-restraint back when they controlled Congress. Republican bills such as the ban on partial birth abortion, the No Child Left Behind Act, and others, also pushed federal power well beyond the limits established by the text of the Constitution. And the Republicans made little or no effort to seriously consider constitutional limits on their power beyond those set by court decisions. For the Democrats to live within constitutional constraints that the Republicans ignored might [...]

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Debating the Constitutionality of an Individual Mandate

By on November 5, 2009 3:09 pm in Commerce Clause, Health Care

The latest installment of the Federalist Society’s “Originally Speaking” debate series features UC Irvine Dean Erwin Chemerinsky and Baker & Hostetler partner David Rivkin sparring over the constitutionality of an individual mandate.

We’ve had something of a debate over this subject here on the VC as well.  Our prior posts are collected here. [...]

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Nineteen Eighty-Fat

By on October 19, 2009 11:36 pm in Health Care, Libertarianism

… As Mickey Kaus puts it.  This kind of thing is enough to remind me why, despite the fact that I consider it a beginning point rather than necessarily always the end point, I am fundamentally a libertarian.

We have ways of making you stress-free: Someone should write the fictionalized dystopian nightmare of mandatory “wellness” programs foreshadowed in Sen. Ensign’s business backed plan to let insurers penalize even those who seek non-employer-based health coverage if they don’t participate in healthy life regimens.”  Like THX 1138, but with brownies. … Nineteen-Eighty-Fat! … Ensign says his plan “would guarantee that the incentive is strong enough for Americans to want to participate.” … Next: Marital fidelity incentives!

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Fined for Inadequate Insurance

By on October 10, 2009 9:42 am in Health Care

Wendy Williams and her husband liked their health insurance plan.  The premium and annual deductibles made sense for them, and a more “gold-plated” plan was not worth the money.  Yet Massachusetts’ health care regulators disagreed, and forced the Williams to pay a $1,000 fine if they wished to keep their insurance plan — a plan they prefer to a comparable state-approved alternative.

It wasn’t always this way.  When the Massachusetts mandate was first adopted, their plan was just fine.  But then the rules changed.  The state no longer accepts their insurance plan, even though they are fully insured and are not imposing their health care costs on other taxpayers.

If the federal government adopts an individual mandate, Ms. Williams fears her experience could soon replay itself nationwide.  She’s right to fear.  Once there is an individual mandate, interest groups will flock to Washington seeking to have their preferred treatment or service incorporated into the requirements for acceptable health care plans.  Over time, the requirements will grow, and the cost of health care plans for many Americans will increase as a result.  Consequently, many individuals who have health care plans that fully meet their needs will suddenly find themselves “underinsured” — and taxed fined as a result. [...]

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Socking It to (Some of) the States

By on October 9, 2009 10:29 am in Federalism, Health Care

Kimberly Strassel’s column in today’s WSJ details several provisions of the Baucus health care reform bill outline that give special treatment to certain states to reduce the impact of health care reform.

A central feature of the Baucus bill is the vast expansion of state Medicaid programs. This is necessary, we are told, to cover more of the nation’s uninsured. The provision has angered governors, since the federal government will cover only part of the expansion and stick fiscally strapped states with an additional $37 billion in costs. The “states, with our financial challenges right now, are not in a position to accept additional Medicaid responsibilities,” griped Democratic Ohio Gov. Ted Strickland.

Poor Mr. Strickland. If only he lived in . . . Nevada! Senate Majority Leader Harry Reid, who is worried about losing his seat next year, worked out a deal by which the federal government will pay all of his home state’s additional Medicaid expenses for the next five years. Under the majority leader’s very special formula, only three other states—Oregon, Rhode Island and Michigan—qualify for this perk, on the grounds, as Mr. Reid put it recently on the Senate floor, that they “are suffering more than most.” . . . .

As an Ohio resident, this is one more reason to be concerned about the bill.  But wait, there’s more, including a differential threshold for the 40 percent tax on “luxury” health care plans.

Special treatment of politically important interests is nothing new.  It’s business as usual in Washington, D.C.  Nonetheless, these provisions are worth watching.  If health care reform forces states to assume $30-billion-plus in additional Medicaid expenses, it could exacerbate tensions between the states and Washington, D.C., and could even produce some interesting constitutional litigation.

The federal government cannot force states, as states, to participate [...]

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