Free Markets, Free People

ObamaCare

The looming health care bomb – a scenario

As we stand by and wait for the ObamaCare law to take effect, enthusiasm within the medical profession seems to be waning (even more) as that time nears:

In late December, a survey of 501 physicians was released by the Deloitte Center for Health Solutions research group, whose parent company serves clients in the health care industry. Nearly half (48%) expected health reform to hurt their incomes this year, while 73% said it would not reduce costs.

Though this isn’t a scientific survey, and other such surveys have and will show physicians’ support for the Affordable Care Act, the early glimpse of the law’s potential impact will likely lead to economic pain for doctors and a diminished system for their patients. Indeed, the Deloitte survey found that 69% of the physicians are "pessimistic about the future of medicine" because of the law.

It may not be scientific, but it certainly seems indicative of attitudes in the medical profession.  I mentioned one example of what was shaping this sort of an opinion in an earlier post.

Here’s another little factoid one might find interesting that tells a bit of a story too:

An online survey in September by the Jackson & Coker physician recruitment firm — based on 1,611 doctors who chose to respond — reflected that the majority of doctors don’t believe that the AMA represents their views. The primary reason: the AMA’s support of the legislation. Just 13% of those surveyed backed the Affordable Care Act.

As you recall, the American Medical Association came out in favor of the law.

There’s an unintended consequence from all of this (some would argue it’s intended):

The Association of American Medical Colleges estimates that the USA will be 160,000 physicians short by 2025 (when all patients would be insured under ObamaCare), and this is without even considering those doctors who will limit their practice to insured patients because of decreasing reimbursements or who retire early when faced with increasing costs with little return.

Of course the reason to mention that perhaps the consequences are intended is to point out that this still isn’t the single payer system that those who passed the legislation preferred. 

So one has to wonder, how does an ideologue take the lemon of ObamaCare and make it into the socialist lemonade of a government run single-payer system.  Well what exists in the form of ObamaCare is certainly a good step one, isn’t it?

It will be so unsatisfactory that one supposes there will be a terrible outcry.  With fewer health care workers, care will get worse, not better (to my knowledge the population of the country is still expanding, not contracting).  That’s a simple fact that is irrefutable.

Depending on who is in power in DC, government will present itself as the savior to this awful “market failure”.    And the usual suspects will dutifully echo and expand on how the market has again let us all down.  The result of this will be the final elimination of private insurance as an option for most and the expansion of government control in the guise of the left’s much desired single-payer system

Of course, to make that work, the conscription of all health care workers as government employees. 

Nirvana achieved?

That scenario isn’t as far fetched as some would like to believe or contend.  Obviously, the court fight that’s going on right now will have some say in how or if the scenario develops that way.  However, assuming the law is upheld for the sake of argument, and having observed the way the political world works for decades, I think the scenario is quite plausible.

And of course, single payer will be a disaster.   Why?  Because as Medicare continually proves, bureaucrats think they know more than doctors and certainly more than patients.

For instance:

There is widespread support, in Congress and among economists, for the broad ideal that Medicare would save money if it paid for better outcomes instead of more procedures. But 20 years of trying to shift the program in that direction have yielded little to no progress, CBO said Wednesday.

CBO analyzed six programs designed to improve care coordination for patients with chronic diseases. They either made no difference or were actually more expensive than the traditional payment system.

That’s because, as noted in the link I cited earlier to the previous post, the bureaucrats refuse to revise their system of payment based on what would best serve the patient.  And it isn’t a far stretch to believe the same system would be extant in any single-payer plan.  Politicians and economists come and go, but bureaucracies live forever.

So the bomb sits out there ticking away.  If it is allowed to explode, it will destroy health care as we know it today and most likely impose an even more debilitated form of Medicare on all.  Yes, most seniors say they like Medicare – do they have a choice?  Would they like to see an even less capable form of it exist?  Just ask them.

In the meantime remember – Freedom equals choice.  Whenever choices are limited so is your liberty.  When government gets in the business of limiting your choices it is no longer in the business of ensuring your liberty.   And limiting your choices in all sorts of areas, to include health care, is exactly the business our government is in today.

Another, in a long line of reasons, to retire the current occupant of the White House in November.

~McQ

Twitter: @McQandO

SCOTUS takes on ObamaCare–Bigger than Roe v Wade?

ObamaCare, as mentioned in a previous post, gets its Constitutional review by the Supreme Court today.  CATO’s Ilya Shapiro lays out the agenda:

This morning, as expected, the Supreme Court agreed to take up Obamacare.  What was unexpected — and unprecedented in modern times — is that it set aside five-and-a-half hours for the argument.  Here are the issues the Court will decide:

  1. Whether Congress has the power to enact the individual mandate. – 2 hours
  2. Whether the challenge to the individual mandate is barred by the Anti-Injunction Act. – 1 hour
  3. Whether and to what extent the individual mandate, if unconstitutional, is severable from the rest of the Act. – 90 minutes
  4. Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour

Those are critical questions.  They tend to define in four points, how threatened our rights are by this awful legislation.  Forget what it is about, consider to what level it intrudes and what, if found Constitutional, it portends.

If found Constitutional, you can take the actual Constitution, the one that no fair reading gives an inkling of support to such nonsense as ObamaCare, and cut it up for toilet paper.  It will be, officially, dead.

A decision that supports those 4 points (or even some of them) means the end of federalism and the final establishment of an all powerful national government which can (and will) run your life just about any way it wishes.   If it has the power to enact a mandate such as that called for in ObamaCare, it can mandate just about anything it wishes.  And, if the new conditions on all federal Medicaid funding stand, the states have no grounds to resist or refuse other federal intrusion.

In any event, the Supreme Court has now set the stage for the most significant case since Roe v. Wade.  Indeed, this litigation implicates the future of the Republic as Roe never did.  On both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure — federalism and enumeration of powers — is judicially enforceable or whether Congress is the sole judge of its own authority.  In other words, do we have a government of laws or men?

If you’re devoted to freedom and liberty and opposed to intrusive and coercive government, you know how you want this to come out.

And it isn’t to the advantage of ObamaCare.

~McQ

Twitter: @McQandO

Democrats increasingly down on ObamaCare

Very interesting survey concerning ObamaCare.  Kaiser Family Foundation does a monthly tracking poll.  Their October poll yielded some surprise results.  Note that this comes as we have been learning more and more about the details of the ObamaCare law:

  • After remaining roughly evenly split for most of the last year and a half, this month’s tracking poll found more of the public expressing negative views towards the law. In October, about half (51%) say they have an unfavorable view of the Patient Protection and Affordable Care Act (ACA), while 34 percent have a favorable view, a low point in Kaiser polls since the law was passed. While Democrats continue to be substantially more supportive of the law than independents or Republicans, the change in favorability this month was driven by waning enthusiasm for the law among Democrats, among whom the share with a favorable view dropped from nearly two-thirds in September to just over half (52%) in October.
  • Americans are more than twice as likely this month to say the law won’t make much difference for them and their families as they are to say they’ll be better off under the law.  Forty-four percent say health reform won’t make much difference to them personally, up from 34 percent in September. Meanwhile 18 percent say they and their families will be better off, down from 27 percent last month. (The share who thinks they’ll be worse off personally held steady at roughly three in ten, where it has been since the law passed in 2010.) Here, too, changes in views among Democrats helped shape the overall change. 

That’s a bit of a sea-change on the Democratic side.

It’s also significant for another reason.  It makes the case for repeal stronger.  While Republicans have always been against it, that’s been fairly easy for Democrats to wave off.  Indies are a little harder to wave off.  But when other Democrats are less supportive of the law, to the point that fewer and fewer have an favorable view of the law, well that makes it increasingly harder for Democrats to justify keeping it.

Something is causing their support to erode and the GOP needs to figure out what it is and use it to make their case.

As election time nears, this is an issue they can use as a secondary one to the economy.  It was unpopular when it passed.  It has remained mostly unpopular and, with this sort of poll, we see the unpopularity expanding into Democratic ranks.  It appears it is something the GOP could get majority consensus on.

~McQ

Twitter: @McQandO

When controlling cost becomes primary, the care given becomes secondary

The concept in the title isn’t a difficult one to grasp, yet it seems to be one that eludes any number of people who think government can cut medical care costs and improve care simultaneously.

A growing number of states are sharply limiting hospital stays under Medicaid to as few as 10 days a year to control rising costs of the health insurance program for the poor and disabled.

So what does that mean?  Well, it’s a vicious circle that ends up costing more, because of one tiny problem:

In Arizona, hospitals won’t discharge or refuse to admit patients who medically need to be there, said Peter Wertheim, spokesman for the Arizona Hospital and Healthcare Association. "Hospitals will get stuck with the bill," he said.

That will most likely be the case for all hospitals.

And the result?

Advocates for the needy and hospital executives say the moves will restrict access to care, force hospitals to absorb more costs and lead to higher charges for privately insured patients.

Econ 101.

And what will happen?

Cost will continue to spiral upward for everyone.

And continue to do so.

Meanwhile:

For fiscal 2012, the association estimated state Medicaid spending will rise 19%, largely because of the end of the federal stimulus dollars.

The program served 69 million people last year.

That number will go up as millions are added under ObamaCare.

Your “cost cutting” government at work.

~McQ

Twitter: @McQandO

ObamaCare–estimates of cost off by $50 billion a year

Even before this particular find, costs for the implementation of ObamaCare were shown to be higher than doing nothing.  Now we learn that in addition to that, there’s an additional $50 billion a year cost that will come due:

Federal payments required by President Barack Obama’s health care law are being understated by as much as $50 billion per year because official budget forecasts ignore the cost of insuring many employees’ spouses and children, according to a new analysis. The result could cost the U.S. Treasury hundreds of billions of dollars during the first ten years of the new health care law’s implementation.

“The Congressional Budget Office has never done a cost-estimate of this [because] they were expressly told to do their modeling on single [person] coverage,” said Richard Burkhauser in a telephone interview Monday. Burkhauser is an economist who teaches in Cornell University’s department of policy analysis and management. On Monday the National Bureau of Economic Research published a working paper on the subject that Burkhauser co-authored with colleagues from Cornell and Indiana University.

Employees and employers can use the rules to their own advantage, he said.  “A very large number of workers” will be able to apply for federal subsidies, “dramatically increasing the cost” of the law, he said.

I’m sure that will come as an “unexpected” surprise to those who preached the entire point of implementing ObamaCare was to “bend the cost curve down”.  Now it appears it will not only fail to do that, but instead bend that curve upward.

Bottom line:

In May a congressional committee set the accounting rules that determine who will qualify for federal health care subsidies under the 2010 Patient Protection and Affordable Care Act. When the committee handed down the rules to the Congressional Budget Office, its formula excluded the health care costs of millions of workers’ spouses and children. The result was a final estimate for 2010 that hides those costs.

“This is a very important paper,” Heritage Foundation health care expert Paul Winfree told TheDC. These hidden costs, he said, “will almost certainly add to the deficit, contrary to what the Congressional Budget Office and others have estimated.”

Your incompetent and clueless government at work.

And we wonder why we have such an outrageous deficit and debt problem?

~McQ

Twitter: @McQandO

Study says health care costs projected to rise more under ObamaCare

Promises, promises, promises.  President Obama promised the passage of the Affordable Care Act would lower health care costs across the board, making health care “more affordable”.   The entire premise of the massive government intrusion in that market was to lower costs and make insurance more affordable.

A new study says that doing nothing would actually have been slightly less expensive.  The irony is this isn’t some opposition think tank which has put up these numbers but the Centers for Medicare and Medicaid Services:

Despite President Obama’s promises to rein in health care costs as part of his reform bill, health spending nationwide is expected to rise more than if the sweeping legislation had never become law.

Total spending is projected to grow annually by 5.8 percent under Mr. Obama’s Affordable Care Act, according to a 10-year forecast by the Centers for Medicare and Medicaid Services released Thursday. Without the ACA, spending would grow at a slightly slower rate of 5.7 percent annually.

The primary reason, supporters say, is more people will have insurance. 

CMS officials attributed the growth to an expansion of the insured population. Under the plan, an estimated 23 million Americans are expected to obtain insurance in 2014, largely through state-based exchanges and expanded Medicaid eligibility.

The federal government is projected to spend 20 percent more on Medicaid, while spending on private health insurance is expected to rise by 9.4 percent.

Anyone – do you know why “private health insurance costs” are expected to rise by 9.4%?   Because the privately insured will be tapped to help pay the difference between what an expanded Medicaid base pays and what doctors charge.  Or, in other words, they will be the victim of government intrusion and market distortion.  And of course government is then going to point to the costs its distortion caused and claim it should help solve the problem it has created.  And what will be eventual answer to those increased costs caused by government distortion be?   Single-payer, of course.

This study doesn’t address the other real problem – you may expand Medicaid dramatically, but having that insurance doesn’t guarantee seeing a doctor.  Other studies have shown that increasing the insurance base doesn’t decrease emergency room use, but instead increases it in the face of a building doctor shortage.   And then, of course, there are those doctors who simply won’t take Medicaid (or any more than they now have) because of the low reimbursement rate.

So when the White House’s Nancy-Ann DeParle says:

“The Affordable Care Act creates changes to the health care system that typically don’t show up on an accounting table,” she said. “We know these new provisions will save money for the health care system, even if today’s report doesn’t credit these strategies with reducing costs.”

She’s also leaving out that part of the problem that doesn’t “show up on an accounting table” as well.

Bottom line, we were sold a lemon, a bill of goods, snake oil.  All the ACA does is give the government a legal ability to intrude deeper and deeper in a market it really has no business being in at all and to distort that market even further.  And that’s precisely what is going to happen.  We all know that when government gets in as deep as it will be in this market, nothing ends up “costing less”.

~McQ

Twitter: @McQandO

Why aren’t we seeing a jobs recovery? Maybe it’s ObamaCare’s fault

So you’re wondering why the “recovery” stalled?  Well we all know that correlation is not causation, but this sure looks suspicious doesn’t it?

 

Heritage-Chart

 

So looking at the chart, we see job growth starting to pick up at an average of 67,000 a month.  Not earth shattering, but much better than the average (ten times less) after the passage of ObamaCare.

Why, people wonder, would something like that happen with the passage of a bill that is supposed to improve health care and make it cheaper to boot?  Wouldn’t that encourage people to hire and expand.

Well … no.  Because we had to pass the bill to find out what was in the bill.  And what we’ve found out is none to pleasing.

As Tina Korb points out at Hot Air:

As the report states, correlation cannot prove causation — but the change in course is statistically measurable and testing reveals a structural break between April and May of 2010. Moreover, small-business owners have said Obamacare is a deterrent to hiring. Take Scott Womack, the owner of 12 IHOP restaurants in Indiana and Ohio, as just one example. Before Obamacare became law, he had development plans in Ohio. Now, he’s worried he won’t be able to carry out his original plans unless Obamacare is repealed. Those restaurants he planned to open would provide jobs not only for his future employees, but also for everyone involved in the construction of the restaurant buildings themselves.

But … and you knew there was one, this threw a wrench into everyone’s works.  Why?  The Heritage Foundation points out 3 reasons businesses are discouraged from doing so by the law:

  • Businesses with fewer than 50 workers have a strong incentive to maintain this size, which allows them to avoid the mandate to provide government-approved health coverage or face a penalty;
  • Businesses with more than 50 workers will see their costs for health coverage rise—they must purchase more expensive government-approved insurance or pay a penalty; and
  • Employers face considerable uncertainty about what constitutes qualifying health coverage and what it will cost. They also do not know what the health care market or their health care costs will look like in four years. This makes planning for the future difficult.

Korb provides the link between what that law is doing and the current debt and deficit talks going on in Congress:

The Heritage report recommends repeal — and comes as a welcome reminder that the health care law can’t be ignored as the president and Congress attempt to address the debt and deficit or as the nation attempts to right the still-struggling economy. Nor can it be ignored in the upcoming presidential election. Likely U.S. voters have said jobs and the economy are their No. 1 issue. That means the repeal of Obamacare should be a top priority, too.

Couldn’t agree more.  I’ve seen any number of people saying “yeah, repeal it” but then asking “what are you going to replace it with”?

Uh, personal responsibility?  How about we try that for a change?   It is each citizen’s job to care for themselves and do (and pay for) those things necessary to see that they aren’t a burden on the rest of the citizenry.

What a concept, huh?

~McQ

Twitter: @McQandO

Obama administration and its health care “mystery shoppers”

One of the things many who have studied the problem of health care in the US have known for quite some time is that there is and will be a shortage of primary care doctors in the US.  These doctors are the gatekeepers in the system in which health insurance providers require primary care doctors manage the health care of patients and be the ones to authorize referrals to specialists.

The shortage of these doctors isn’t news nor is it something new.  Only 30% of practicing doctors are in primary care.  65 million Americans live in areas where a shortage of primary care doctors exists.  And ObamaCare’s extension of insurance benefits will add another 30 million to the roles who will have to seek a primary care physician.

So, how does the administration plan to address this known problem?  With incentives for such doctors to take Medicare and Medicaid patients whose reimbursement for services is known to be lower than that of private insurance?   Announce a plan to incentivize incoming medical school students to become primary care doctors?

Nope.   It’s to snoop on existing primary care doctors by enlisting “mystery shoppers” who will falsely identify themselves as potential patients with various types of insurance (Medicare, Medicaid and private) to determine whether the physicians called discriminate among who they’ll accept.

Alarmed by a shortage of primary care doctors, Obama administration officials are recruiting a team of “mystery shoppers” to pose as patients, call doctors’ offices and request appointments to see how difficult it is for people to get care when they need it.

The administration says the survey will address a “critical public policy problem”: the increasing shortage of primary care doctors, including specialists in internal medicine and family practice. It will also try to discover whether doctors are accepting patients with private insurance while turning away those in government health programs that pay lower reimbursement rates.

As you might imagine, doctors who’ve learned about this upcoming attempt are not at all happy with it:

Dr. George J. Petruncio, a family doctor in Turnersville, N.J., said: “This is not a way to build trust in government. Why should I trust someone who does not correctly identify himself?”

Dr. Stephen C. Albrecht, a family doctor in Olympia, Wash., said: “If federal officials are worried about access to care, they could help us. They don’t have to spy on us.”

Dr. Robert L. Hogue, a family physician in Brownwood, Tex., asked: “Is this a good use of tax money? Probably not. Everybody with a brain knows we do not have enough doctors.”

In response the administration says:

In response to the drumbeat of criticism, a federal health official said doctors need not worry because the data would be kept confidential. “Reports will present aggregate data, and individuals will not be identified,” said the official, who requested anonymity to discuss the plan before its final approval by the White House.

Christian J. Stenrud, a Health and Human Services spokesman, said: “Access to primary care is a priority for the administration. This study is an effort to better understand the problem and make sure we are doing everything we can to support primary care physicians, especially in communities where the need is greatest.”

Now, being the skeptic I am and having watched government operate for decades, I tend to see other possibilities in this sort of an effort.  Remember, ObamaCare was passed by Democrats, most of whom see health care as a “right”.  Thus, they feel they have the right to mandate that a) everyone have insurance and b) that everyone with insurance have access to a physician.   They got the “a” done in ObamaCare.  Left undone is the mandate that all insured have access to a doctor – without exception.  That mandate would be perfectly in-line with their belief that they can demand the skills, assets and time of one to serve the pseudo-right of another.

Why else would this “stealth survey” involving people falsely identifying themselves to doctors to determine whether they discriminate against lower paying insurance programs be planned?  The doctor shortage is known.  The administration claims that ObamaCare “includes several provisions intended to increase the supply of primary care doctors” and that this survey is intended to “evaluate the effectiveness of those policies. “  Really?  Considering that the law has been in effect only a short time and is not fully in effect, one might find it a bit hard to believe that bit of spin.

Instead it seems much more likely that this is a prelude to something else.  This is information gathering to prove something – i.e. doctors are discriminating.  And we all know that in our new, brave world, “discrimination” is a mortal political sin.  Does anyone not believe the outcome of such a survey might be used to attempt to pass an anti-discrimination law or a law which requires primary care physicians to accept anyone with insurance who applies regardless of coverage? 

Yeah, me too.

~McQ

Twitter: @McQandO

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ObamaCare will allow middle class retirees to go on Medicaid

Good thing we passed this ObamaCare monstrosity so we could finally find out what is in it.  More and more surprises, as the Daily Caller points out:

President Barack Obama’s health care law would let several million middle-class people get nearly free insurance meant for the poor, a twist government number crunchers say they discovered only after the complex bill was signed.

The change would affect early retirees: A married couple could have an annual income of about $64,000 and still get Medicaid, said officials who make long-range cost estimates for the Health and Human Services department.

Brilliant.  The states, which pay over 40% of Medicare costs, are, of course, not thrilled by this revelation.

Governors have been clamoring for relief from Medicaid costs, complaining that federal rules drive up spending and limit state options. The program is now one of the top issues in budget negotiations between the White House and Congress. Republicans want to roll back federal requirements that block states from limiting eligibility.

Medicaid is a safety net program that serves more than 50 million vulnerable Americans, from low-income children and pregnant women to Alzheimer’s patients in nursing homes. It’s designed as a federal-state partnership, with Washington paying close to 60 percent of the total cost.

Early retirees would be a new group for Medicaid. While retirees can now start collecting Social Security at age 62, they must wait another three years to get Medicare, unless they’re disabled.

Some early retirees who worked all their lives may not want to join a program for the poor, but others might see it as a relatively painless way to satisfy the new law’s requirement that most Americans carry health insurance starting in 2014. It would help tide them over until they qualify for Medicare.

Remember, they have a mandated requirement to carry insurance.  They’re not eligible for Medicare and they’re retired.  COBRA is very expensive.  But the new rules in ObamaCare make those who are drawing up to $64,000 a year in retirement eligible for a program that is supposed to serve only the very poorest among us:

The Medicare actuary’s office roughed out some examples to illustrate how the provision would work. A married couple retiring at 62 in 2014 and receiving the maximum Social Security benefit of $23,500 apiece could get $17,000 from other sources and still qualify for Medicaid with a total income of $64,000.

That $64,000 would put them at about four times the federal poverty level, which for a two-person household is $14,710 this year. The Medicaid expansion in the health care law was supposed to benefit childless adults with incomes up to 133 percent of the poverty level. A fudge factor built into the law bumps that up to 138 percent.

The actuary’s office acknowledged its $64,000 example would represent an unusual case, but nonetheless the hypothetical couple would still qualify for Medicaid.

Now you’re saying, “wait a minute, they’re at 4 times the poverty level with their income and it clearly states that only those who are at 138% can get Medicaid – that’s exactly what $17,000 represents.

Oh, didn’t I tell you?  ObamaCare’s new law doesn’t count Social Security as income.  So in essence, our mythical couple only claims $17,000 a year income and qualifies.

So, they look at the options – let’s say COBRA would run $1,000 a month for the two of them for sake of argument (it could be much higher) and simple math.  They’re looking at an outlay of $12,000 a year.  Medicaid, however, is probably less than a $100 a month and copays.  A thousand a month or a hundred a month – you make the call.

Here’s the bottom line truth:

Former Utah governor Mike Leavitt said bringing early retirees in will “just add fuel to the fire,” bolstering the argument from Republican governors that some of Washington’s rules don’t make sense.

“The fact that this is being discovered now tells you, what else is baked into this law?” said Leavitt, who served as Health and Human Services secretary under President George H.W. Bush. “It clearly begins to reveal that the nature of the law was to put more and more people under eligibility for government insurance.”

It is hard not to interpret it that way, isn’t it?  Everyone claims they didn’t know this was “in there”.  Really?  And it literally has been discovered recently.  Not only does it make you wonder what else is “baked into this law”, but it makes you realize how really “half baked” this law is.

This is a law that has to be repealed in full.  It is terrible law.  It continues to see little surprises like this pop to the surface.  And, as governor Leavitt points out, these sorts of revelations do indeed point to the real nature of the law – that is to make more and more people dependent on government.

Any presidential candidate who is wishy-washy on this issue doesn’t deserve the time of day, much less your vote.

~McQ

Twitter: @McQandO

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Is ObamaCare doomed?

Ihe 11th Circuit Court of Appeals, based in Atlanta, opened its session examining the federal healthcare law recently passed by Congress and derisively known as ObamaCare with these words from its Chief Judge Joel Dubina:

"I can’t find any case like this," Dubina said. "If we uphold this, are there any limits" on the power of the federal government?

That was followed by:

Judge Stanley Marcus chimed in: "I can’t find any case" in the past, he said, where the courts upheld "telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?"

Now frankly, I think some people expected a much more receptive audience among the judges since two of the three are Clinton appointees.  Dubina is a George H.W. Bush appointee. What both Dubina and Marcus make clear is this is a case – or at least certain aspects of it are – without precedence.

And we all know how federal justices rely on precedence to guide their rulings.  I’m encouraged by those opening remarks.  The third judge on the e judge panel repeatedly asked the lawyers about the possible effect of striking down the mandate while upholding the rest of the law.

The administration, represented by U.S. Solicitor Gen. Neal Katyal argued the following about the individual mandate:

Katyal argued that healthcare was unique and unlike the purchase of other products, like vegetables in a grocery store.
"You can walk out of this courtroom and be hit by a bus," he said, and if an ill or injured person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care.

Katyal argued that Congress could reasonably decide that because everyone will probably need medical care at some time in their lives, everyone who can afford it should pay part of the cost. And he said the courts should uphold the law under Congress’ broad power to regulate commerce in this country.

Congress could clearly require that a person who shows up at a hospital without insurance buy it on the spot, he said, and requiring the purchase in advance should not be the decisive difference.

What, of course, is not reasonable is Congress deciding how one must “pay part of the cost” or compelling them to do so under the auspices of the government.  It is the individual’s responsibility to pay such debt as in all other areas of life.  But, argues the administration:

Parts of the overall law should still survive, said government lawyer Katyal, but he warned the judges they’d make a "deep, deep mistake" if the insurance requirement were found to be unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.

So, the case boils down to $43 billion a year being the reason for a gigantic intrusion in the market by the government which claims it will do a better job of holding down costs via mandating coverage.  This is the same government which suffers $60 billion a year in Medicare and Medicaid fraud (I’d call that some serious “shift[ing]” of costs to other taxpayers, wouldn’t you?

Anyway, back to the story – POLITICO is the only news organization that seemed to find some hope for the administration:

The judges’ questions were mixed enough to give encouragement to both sides in the oral arguments in the multistate lawsuit, the most significant of the legal challenges against Obama’s health care overhaul.

But then, immediately said:

But supporters of the health law cringed as the judges spent a significant amount of time questioning both sides over how much of the law they would have to void if they struck down the most controversial provision at the center of the suit: the requirement to buy insurance.

And that brings us back to our old friend, “severability”:

“The government would obviously be somewhat troubled by the questions about severability, which is something that the court only reaches if it were to invalidate one of the provisions,” said Walter Dellinger, a former acting solicitor general who wrote a brief defending the law for Democratic members of Congress.

This particular case of the many pending is probably the highest profile case as it was brought by a collection of 26 states.

Regardless of how this turns out, however, I think it is pretty clear this one is headed to SCOTUS for final disposition.  However, the rulings of the judges involved will indeed be scrutinized by the justices in Washington DC when the time comes.   If they find against the administration, I think on has to consider such a ruling, if founded on good legal ground, may create the precedent that SCOTUS needs to follow suit and throw the individual mandate (and thus the law for all intents and purposes) out the window.

~McQ

Twitter: @McQandO

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