It appears that the main question, or at least one of the main questions, about the health care mandate in Obamacare that requires Americans buy health insurance may revolve around the "necessary and proper" clause and not just the badly abused Commerce clause.
From the New York Times:
The necessary-and-proper clause sits at the end of Article I, Section 8, after 17 paragraphs that enumerate the powers delegated to Congress, ranging from the establishment of post offices to the declaration of war. It conveys authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”
The reason that is a key is because the latest decision that went against the administration involved Judge Henry Hudson rejecting the “necessary and proper” defense. As the Times mentions, the court has struggled over the years to define the necessary and proper clause. Here’s the case as it stands now:
The [DoJ] , which represents the Obama administration, argues that the insurance requirement is constitutional under the commerce clause and allowed under the necessary-and-proper clause as a rational means to an appropriate end. It points to a series of Supreme Court precedents that interpret those provisions as allowing the regulation of “activities that substantially affect interstate commerce.”
The act of not obtaining health insurance, the federal government’s lawyers contend, is effectively a decision to pay later rather than up front in a market that consumers cannot avoid. Such decisions, they say, have a substantial impact on the market because many of the uninsured cannot afford their care and shift costs to governments, hospitals and the privately insured.
Furthermore, the lawyers argue, the insurance mandate is essential — both necessary and proper — to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions [emphasis mine].
Obviously, at least in my estimation, the argument fails for a number of reasons. Obviously, I’m not a lawyer, so I’m simply giving my arguments based on the stated particulars of the case as outlined above.
First the wording “rational means to an appropriate end.” I’d argue the end is not at all appropriate – i.e government dictating that someone must have insurance certainly smacks of what government had denied and called a “myth”. That is government is now in charge of health care for everyone. Unless you accept that premise, the argument is invalid. Acceptance of that premise and the “appropriate end” argument means government can pretty well do whatever it wants and the Constitution as a guiding document has been mostly rendered moot.
The argument goes on to say that not having health insurance is “effectively a decision to pay later rather than up front in a market that consumers cannot avoid.” Obviously, in the strictest sense that’s not true. “Consumers” can avoid that market. And do. That’s not to say they will – but the fact is no one is forced to use it and no one has to use it if they so choose. Arguing that consumers must be required to buy insurance because they will use the market seems a claim that is unfounded in fact. People of means, for instance, may decide they’d rather pay as they use the service, vs. obtaining insurance. That should be their decision, not governments if we’re really a free country. And while they may be a small set of those who will seek health care, they still give lie to the necessity of insurance to cover the costs of their care – the “pay later than up front” mentioned in the emphasized argument.
Finally there’s the argument which says the mandate is necessary “to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions
No. It’s not. Consider the fact that much of the problem we face with health insurance today revolves around the structure of the market as one in which employers provide the coverage. Then there’s a problem of government’s making. The restrictions on selling health insurance across state lines. This has essentially segmented the huge pool we see in other insurance markets to 50 segmented markets. It has made the ability to buy an insurance product at the best price and outside the traditional employer furnished insurance all but impossible. Removal of that restriction would go a long way in solving some of the toughest problems – pre-existing conditions and portability. While government may feel compelled to place “prohibitions on discrimination by insurers against those with pre-existing medical conditions”, there would probably be less of a need to discriminate in larger pools of insured. Anyway, that solution is found nowhere in the existing law.
There is no “right” to health care. As far as my opinion goes, I find nothing in the Constitution that gives government the power or authority to require I pre-pay for health care. And that is precisely what it is claiming – that health care is something I will use and since I will use it, I must pre-pay for that use. No matter what my health, age, etc. It argues that it can remove my choice in the matter by law.
One more time – freedom is choice. When it is removed, so is freedom. This is just another step toward a more oppressive government presence in our lives. One can only hope that the SCOTUS will rule against the administration on this travesty of a law and cripple it to the point that repeal is the only valid choice for Congress. Otherwise, the door will be opened to all sorts of mandates we haven’t even imagined. And with each mandate more choice is eliminated.
If anyone can argue that was the vision of the founders of the country or the writers of the Constitution, and do so with a straight face, I’ll be glad to nominate them for an Oscar next year.
I’ve been waiting on this one and today a US District Judge in Virginia issued his ruling about ObamaCare:
A federal judge in Virginia has declared the Obama administration’s health care reform law unconstitutional.
U.S. District Judge Henry Hudson is the first judge to rule against the law, which has been upheld by two others in Virginia and Michigan.
Virginia Attorney General Ken Cuccinelli filed the lawsuit challenging the law’s requirement that citizens buy health insurance or pay a penalty starting in 2014.
He argues the federal government doesn’t have the constitutional authority to impose the requirement.
I’m not sure the AP description is entirely accurate. I believe he ruled only the individual mandate was unconstitutional. However, I don’t believe he ruled the entire law unconstitutional.
U.S. District Judge Henry Hudson in Richmond, Virginia, said today that the requirement in President Barack Obama’s health-care legislation goes beyond Congress’s powers to regulate interstate commerce. While severing the coverage mandate, which was to become effective in 2014, Hudson didn’t address other provisions such as expanding Medicaid.
Hudson, appointed by President George W. Bush found the minimum essential coverage provision of the act “exceeds the constitutional boundaries of congressional power.”
Regardless, if the ruling stands, it cripples ObamaCare. The mandate is one of the principle ways that the administration and Democrats “justified” the cost of the law. And by the way:
Constitutional scholars said unless Congress changes the law, its fate on appeal will probably hinge on the views of the U.S. Supreme Court’s more conservative members.
Hello lame duck Congress? That’s not going to happen in the 111th and it certainly won’t happen 112th.
Oh, this is going to be fun to watch. More to come as it continues breaking.
UPDATE: Pertaining to the “severability” argument put forward in the comment section, Judge Hudson said specifically when talking about the individual mandate:
"The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.
The short answer, of course, is it is a monstrous
bill law those effected by it are just beginning to understand. And maybe it’s just me but when you begin to grant waivers to the law, a) you’re playing special interest politics (it applies to the little people but not the politically well connected) and b) the law is obviously flawed.
One of the more recognizable business names included on the newly-expanded list of waivers issued by the feds is that of Waffle House, which received a waiver on November 23 for health coverage that covers 3,947 enrollees.
Another familiar name was that of Universal Orlando, which runs a variety of very popular resorts in the Orlando, Florida area. Universal was given a waiver for plans that cover 668 workers. These waivers deal with limited health benefit plans, sometimes referred to as "mini-med" policies, which companies as large as McDonald’s use for some its employees. The plan have limits on how much can be paid out in coverage, limits which would be phased out under the new health reform law.
The feds though have granted waivers from that law, amid concern that certain groups would drop their health insurance programs entirely. Those waivers are good for one year, and can be considered for renewal.
That final line is important because, of course, it gives the government leverage to push for changes in coverage within the companies it has to this point exempted. If not, it simply lets the exemption expire. But that doesn’t change the fact that the only the politically connected to this point have been exempted. Instead of admitting the problem with the law and issuing a blanket exemption to all businesses that are effected like the favored few, the administration prefers to do “favors” for those that apply.
Among those so favored to this point are – surprise – a number of unions:
Several weeks ago, critics singled out a number of unions which had received government approval for exemptions from certain provisions of the law dealing with annual medical spending limit requirements.
And there are more unions who have received waivers in this latest batch, like the Bricklayers Local 1 of MD, VA and DC, the United Food and Commercial Workers Union in Mount Laurel, New Jersey, the Indiana Teamsters Health Benefits Fund, Service Employees International Union Local 1 Cleveland Welfare Fund, and more are listed.
This, of course, is a result of poorly written legislation that wasn’t debated, vetted or carefully considered. It is a mish-mash of liberal wishes and desires bundled in a huge and unread document and shoved through the legislative process in a most underhanded way. The fallout has been gradual but building as more and more companies get into the nitty-gritty of what this will mean to them. And the waiver apps are flying. Since mid-November, the waivers granted has doubled from 111 to 222. And there’s no reason to believe that’s going to slow down as the implementation dates near.
It is also another in a long line of reasons the business climate in this country remains unsettled. The fact that a company gets a waiver doesn’t mean that within a year the administration will decide it must comply. I’m sure these businesses have already calculated the cost to them of such a demand. Would you do any major hiring or expansion with that hanging over your head?
Yeah, neither would I.
You remember the organization that became one of the biggest shills for the impending health care legislation now known as "Obamacare"? Reason brings us the story that AARP is now notifying its employees that thanks to their support for this monstrosity they have the privilege of paying 8 to 13% higher health care premiums next year:
In an e-mail to employees, AARP says health care premiums will increase by 8 percent to 13 percent next year because of rapidly rising medical costs.
And AARP adds that it’s changing copayments and deductibles to avoid a 40 percent tax on high-cost health plans that takes effect in 2018 under the law. Aerospace giant Boeing also has cited the tax in asking its workers to pay more. Shifting costs to employees lowers the value of a health care plan and acts like an escape hatch from the tax.
AARP said that its support of the law was based in the fact that “health care costs are growing too fast for everyone.” Now AARP’s employees will have the opportunity to experience that first hand – after the law the group supported to prevent such cost growth is in effect.
I don’t want this one to slip by, because it is significant. It is yet another study that shows the numbers attributed to the cost of ObamaCare were so much nonsense. The interesting thing is it comes from an organization friendly to ObamaCare (via HotAir):
Families USA commissioned The Lewin Group to use its economic models to estimate how many individuals would benefit from the new premium tax credits in 2014 and the value of the dollars going to help pay for insurance (see the Methodology on page 12 for more details). We found that an estimated 28.6 million Americans will be eligible for the tax credits in 2014, and that the total value of the tax credits that year will be $110.1 billion.
Where’s the disconnect? Well the Congressional/CBO estimate for this particular cost was almost 600% lower than the Lewin Group study. Ed Morrissey lays it out:
In his presentation to Congress, CBO director Douglas Elmendorf predicted a cost of only $20 billion on health-exchange subsidies and associated costs. The Lewin Group, which conducted the study for Families USA, shows that four times as many people will become eligible for subsidies in 2014 than the CBO predicted in March and that the cost will be 550% higher as a result (page 4 of the linked study).
How did the CBO arrive at those numbers with which to calculate the cost of ObamaCare? Well when Morgen at Verum Serum pointed out the discrepancy to Families USA, they had a peculiar answer:
Morgen also contacted Families USA to get an explanation of the difference, and was told that he made an “apples to oranges” comparison. Why? This survey, they explained, showed how many people would be eligible, while the CBO predicted how many people would actually take advantage of their eligibility for tax credits. This is an odd distinction to make, since the entire idea of the subsidies is to encourage uninsured Americans to buy health insurance through both mandates and generous subsidies.
How likely will it be that people will pass on the notion of getting big tax credits to subsidize must-issue health insurance? And if the success rate in applying mandates, higher taxes, and more government authority to the 270 million Americans who are already insured is only 20-25% in getting the other 30 million insured, how is that at all successful?
The deficit projection given by Democrats was apparently based on 75% failure rates to get people into the system; their advocates are busy touting the massive amounts of subsidies in the program that will tip ObamaCare into a deficit exploder in Year 2.
75% failure rates? In other words, 75% of those eligible for a generous subsidy through tax credits won’t take advantage of them?
Really? I guess this is one of those “benefits” Bill Clinton was talking about that hasn’t quite made an impression yet – exploding costs well above the nonsense the Democrats used to “justify” the abysmal ObamaCare bill.
Talk about being sold a pig in a poke.
As the monstrosity that is ObamaCare is gradually phased in, expect to see more and more companies saying this:
"The newly enacted health care reform legislation, while intended to expand access to care for millions of uninsured Americans, is also adding cost pressure as requirements of the new law are phased in over the next several years," wrote Rick Stephens, Boeing’s senior vice president for human resources.
And with that, Boeing has informed its workers that their premiums will be going up. Why? Well they have a “Cadillac” plan apparently:
Spokeswoman Karen Forte said the Boeing plan is more generous than what its closest competitors offer, and the company was concerned it would get hit with a new tax under the law.
The tax on so-called "Cadillac" health plans doesn’t take effect until 2018, but employers are already beginning to assess their exposure because it is hefty: at 40 percent of the value above $10,200 for individual coverage and $27,500 for a family plan.
Of course, that’s just not “fair”, is it?
One has to wonder, though, if Boeing may not be playing a little politics here, following McDonald’s example – make this visible and see if the administration won’t do for them what it did for McDonalds … issue them a waiver.
After all the administration that arbitrarily enforces the law in other areas certainly would trade a waiver for better PR as they did with Mickey D’s, wouldn’t they.
…for as long as your health care plan exists, anyway. Which, for retirees of the 3M corporation, it no longer will. It seems that the passage of Obamacare has prompted 3M to join the rush for the door in terms of providing health care coverage.
As we’ve noted repeatedly here, the claims that you could keep your health care plan and physician could not possibly be true, as the “reform” package set up perverse incentives. What we are seeing is precisely what we predicted. Corporations and insurers are responding to Obamacare’s incentives by getting out of the health insurance business. Because that’s what the law’s incentives urge them to do.
It really is one of the most basic principles of economics: people respond to incentives.
Got a huge chuckle out of Steven Levitt’s opening sentence at the Freakanomics blog:
Many economists view the health-care bill passed in the U.S. earlier this year as falling somewhere between “a complete waste of time” and “actually making the situation worse.”
Indeed. In fact, I’d have to go with the “actually making the situation worse” determination, given what we’ve seen this past couple of weeks as more and more companies react to the impact of the legislation.
The context of Levitt’s remark is a story by Delia Lloyd talking about the UK going in precisely the opposite way. Yes, a country which has had socialized medicine for over 60 years is looking at taking steps for a more market-based health care system, with the belief it will improve the British system.
Markets? Pricing signals? Competition?
Nah, our Congress just rejected all of that – couldn’t be a good thing.
Why are we always 60 years late and a dollar short?
Rationing? Never. “Death panels?” No such thing! When government runs your health care they won’t act like those evil insurance companies that deny you treatment. Wasn’t that the promise?
A controversial new policy by the Arizona Health Care Cost Containment System depriving hepatitis C patients coverage for liver transplants is effectively a death sentence that, left unchecked, could have far-reaching consequences for millions of Americans afflicted with chronic viral hepatitis, the National Viral Hepatitis Roundtable (NVHR) said today.
The new coverage exclusion governing liver transplants took effect Friday as part of broader Medicaid coverage changes made by the state of Arizona in response to budgetary pressures.
I’m not here to call for unlimited spending or every procedure to be okayed. I understand budget constraints.
However, critics have said that the sort of rationing and denial of care that is demonstrated above was an inevitable outcome of government taking over health care. Those that referred to this type rationing as “death panels” were denigrated and demonized.
Now I understand that while Medicaid is a government run program, it is a state run program that is subsidized by the Federal government to some extent.
But ObamaCare has pushed new mandates down on the states by expanding coverage and the states are faced with making literal life and death decisions concerning the affordability of care for those in their system. This is only one of many “death panel” decisions that are going to eventually effect the lives of millions.
All foretold and inevitable.
In other ObamaCare news more of the foretold and inevitable:
3M Co., citing new federal health laws, said Monday it won’t cover retirees with its corporate health-insurance plan starting in 2013.
Instead, the company will direct retirees to Medicare-backed insurance programs, and will provide reimbursement for that coverage. It’ll also reimburse retirees who are too young for Medicare; the company didn’t provide further details.
Apparently after reviewing the law 3M concluded that even with a subsidy offered in the legislation, it was more costly to keep the coverage than abandon it:
Maplewood-based 3M (NYSE: MMM) is one of the first large companies to indicate that it won’t tap a large federal-government reimbursement program created by Congress as part of the health insurance reform package, The Wall Street Journal reported. The rebate program was meant to encourage employers to keep in place their health-insurance plans for retirees.
Obviously, by 3M’s reading of the law, the “federal-government reimbursement program” didn’t offset the cost of keeping retirees in the system. As you see more and more of these stories pop up – and you will – you have to begin to wonder if this isn’t a deficiency by ignorance or design – a bug or a feature.
As this goes on, you can’t help but feel it is more the latter than the former as such actions by companies move us closer and closer to a single payer system. And when that inevitably happens, it will be characterized as the fault of greedy corporations and, of course, “market failure”.
(HT: Rod F)
In the middle of last week the buzz was all about McDonalds possibly dropping its health care coverage for its employees because of a requirement called the “medical loss ratio” which mandates that insurance companies spend 80 to 85% of the premium on health care. Because of the McDonalds business model, that’s not possible.
Not to worry we’re told, the administration will work it out with McDonalds. No word on how those businesses in the same boat but that don’t enjoy the political heft of McDonalds will fare.
Earlier in the week we were alerted to the fact that Harvard Pilgrim Health Care will be dropping coverage on about 22,000 senior citizens in the Northeast. Again, thanks to ObamaCare, the promise that if you liked your insurance, “you could keep it” was clobbered by the reality of the law.
Last Friday, two new developments foretold by the critics came to pass.
The first is that the Principal Financial Group has made the decision to stop offering health care insurance as a direct result of the new law:
At the Principal Financial Group, the company’s decision reflected its assessment of its ability to compete in the environment created by the new law. “Now scale really matters,” said Daniel J. Houston, a senior executive at Principal, which is headquartered in Des Moines. “We don’t have a significant concentration in any one market.”
The decision will affect approximately 840,000 Americans. Principal’s insurance product was mostly offered through employers. It’s assessment of the law and what it would cost the company gave it no choice but to quite offering the product.
“If you like your insurance, you can keep it.”
Finally, another problem that critics of the sweeping health care law said was as inevitable as Principal’s decision. A report today says ObamaCare will worsen the doctor shortage:
The U.S. healthcare reform law will worsen a shortage of physicians as millions of newly insured patients seek care, the Association of American Medical Colleges said on Thursday.
The group’s Center for Workforce Studies released new estimates that showed shortages would be 50 percent worse in 2015 than forecast.
"While previous projections showed a baseline shortage of 39,600 doctors in 2015, current estimates bring that number closer to 63,000, with a worsening of shortages through 2025," the group said in a statement.
Legislation passed by Congress is always criticized by some faction or another. Rarely, however, is it ever 100% correct. But in the case of ObamaCare, that may change. Thus far almost every criticism and warning leveled by the opposition to this monstrosity has been shown to be true. Unfortunately we’re just now beginning to see its impact.
Stay tuned for more and more of the critics arguments to be proven right as we wend our way into this almighty mess created by Congress and the President. Today’s news is reason enough to jettison the entire mess as soon as the numbers line up correctly in Congress and the right person is in the White House. Hopefully we’ll only have to wait a couple of years for that all to be in place.