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ObamaCare

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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More of the ObamaCare false flag operation

Rick Ungar is the latest flag bearer:

Recent data provided by the nation’s largest health insurance companies reveals that a provision of the Affordable Care Act – or Obamacare – is bringing big numbers of the uninsured into the health care insurance system.

And they are precisely the uninsured that we want– the young people who tend not to get sick.

The provision of the law that permits young adults under 26, long the largest uninsured demographic in the country, to remain on their parents’ health insurance program resulted in at least 600,000 newly insured Americans during the first quarter of 2011.

Of course, most will  be gone at 27 for any number of reasons – unless they’re forced by law to buy it on their own.

But again, the problem going in isn’t necessarily “uninsured” as the left continues to insist.   Surprise, the ERs didn’t magically empty as promised under RomneyCare in MA as promised, but became even more crowded – with insured.

Why?  Because there’s a shortage of Doctors and health care providers willing to take on new patients, especially those on Medicaid.  In fact, there’s a shortage of doctors, period.

But the fantasy lives:

For starters, every one of the young immortals we add to the rolls of the insured is one less young adult who will turn to the emergency room to fix a broken leg and then find themselves unable to pay the bill – leaving it to the rest of us to pay the tab.

See, false flag.  It isn’t about being “stuck with the bill” – the mythical “free rider” problem.  It is about being seen and receiving care in other than an ER, and that’s just not going to happen under this law unless doctors are forced to do so.  Our problem isn’t that we’re going broke because of ER costs.  Our problem is that government insurance has made those who hold it so unattractive to doctors that most don’t want too many of them in their patient mix.

Doctors most likely take this “young blood” as Ungar calls them as they’ll rarely if ever see them, and besides they’ve most likely been seeing them under their parents insurance for years. 

And I’m sure the insurance companies are very happy with the result of the new law which extends coverage to family members up to age 26.  More profit, little payout.  Those that are under the age of 26 probably are fine with it too since they’re most likely not paying the bill.

We can insure everyone in America, and I’m sure that’s the eventual goal.  But unless we increase the size of the health care force exponentially, it won’t mean a thing.  It isn’t an insurance problem, folks, it’s the usual problem of supply and demand.   And government intrusion in the market has made the market less attractive to those who would be the suppliers – as usual.

~McQ

Twitter: @McQandO

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Observations: The QandO Podcast for 22 May 11

In this podcast, Bruce and Dale discuss the president’s middle east speech, Obamacare waivers, and fiscal policy.

The direct link to the podcast can be found here.

Observations

As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 to 2010, they can be accessed through the RSS Archive Feed.

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More ObamaCare waivers an indication that it is bad law

There’s  a lot being written and said about the latest batch of ObamaCare waivers and the fact that many have gone to companies in Nancy Pelosi’s area.  And, of course, the agency granting them has claimed that Pelosi had absolutely no effect on them being granted.

Okay, that’s not the important point anyway.  Tim Pawlenty actually manages to stumble across it as he claims cronyism in their grant:

"I don’t blame people for trying to get out from underneath it — that it is an awful law," Pawlenty said. "But when you have that many needs for exemptions, it tells you that the law — it is a warning sign that the law is broken and doesn’t work."

Ya think?  You have about 26 or 27 states challenging the Constitutionality of the bill and its individual mandate.   You have hundreds, if not thousands of companies, agencies and businesses seeking waivers.  And obviously, there’s an organization in place to grant those waivers.  Imagine a job where you review and grant waivers to a law.  I don’t know about you, but that would tell me there must be something fundamentally wrong with it.

Pawlenty is also correct about his broader point – those without the ability to appeal for a waiver are stuck with paying the piper:

"Another example of really crony politics or crony capitalism, if you’ve got the right connections, the right lobbyists, the right interest group, you get your special deal, and the rest of us get our wallet out, and that’s in the tax code, it’s in earmarking, and now you see it in ObamaCare.”

Yes, exactly.  His larger point is absolutely correct.  Those without the connections do indeed end up having our wallets looted.  Cronyism is certainly alive and well and very prevalent not only in the treatment of ObamaCare, but in other areas as well.  Which brings up an ironic point – for the party of “fairness” this seems singularly unfair.  Yet Democrats aid and abet it – in fact, just like Republicans, they use this sort of process to gain favor with certain constituencies … at the expense of others.  And by expense, I’m including paying the bill too.

ObamaCare is an obviously wretched law.  What was supposed to be insurance reform ended up being a polyglot of government bureaucracy at a huge and unaffordable price.

Now we hear the House GOP members saying that repealing it is “hard”.  We hear candidates like Romney and Gingrich saying they agree with parts of it, like the individual mandate.  Cronyism is directly linked to power – it’s a give and take process that benefits politicians.  It comes as no surprise to me that both sides are engaged in it up to their necks.  The problem is it is unlikely to ever get fixed since it is the fox guarding the hen house and enjoying the job.

~McQ

Twitter: @McQandO

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Why Romney and Gingrich can never be President

Or perhaps I should caveat that by saying “should” never be President, given the current occupant who also “should” never have been President.

Romney gave his major health care speech yesterday in which he sounded like he was running as Obama’s VP.  It was totally unconvincing.  As Avik Roy says at NRO:

Mitt Romney just gave a more articulate defense of Obamacare than President Obama ever has. He continues to believe that the individual mandate is a good idea, despite the fact that the “free-rider” problem is a myth. His effort to make a distinction between Romneycare and Obamacare was not persuasive: If anything, he convincingly made the opposite case, that Romneycare and Obamacare are based on the same fundamental concept.

For him to have any credibility with the right and GOP voters, he had a simple mission: tell them why he signed RomneyCare into law in MA, why it was a mistake and why he was going to fight to repeal ObamaCare.

He did none of those things and thus became, at least in my eyes, an unviable candidate.  He obviously has absolutely no problem with the level of government interference in the health care market and certainly isn’t going to be a champion of backing government out of it if elected.  In fact, of all sources, the New York Times nails the problem (albeit coming at it from a different direction than me):

Tearing it down [RomneyCare] might help him politically, he said, but “it wouldn’t be honest.” He said he did what he “thought would be right for the people of my state.” A mandate to buy insurance, he said, makes sense to prevent people from becoming free riders, getting emergency care at enormous cost to everyone else.

Where he went off the rails, however, was in not acknowledging that that same logic applies to the nation. Mr. Romney tried desperately to pivot from praising his handiwork in Massachusetts to trashing the very same idea as adapted by Mr. Obama. His was an efficient and effective state policy; Mr. Obama’s was “a power grab by the federal government.”

He tried to justify this with a history lesson on federalism and state experimentation, but, in fact, he said nothing about what makes Massachusetts different from its neighbors or any other state. And why would he immediately repeal the Obama mandate if elected president? Because Mr. Obama wants a “government takeover of health care,” while all he wanted was to insure the uninsured.

That distinction makes no sense, and the disconnect undermines the foundation of Mr. Romney’s candidacy.

I absolutely agree.  In fact, the problem isn’t federalism and state experimentation, it is a principle – government, at any level, doesn’t have the right to compel a person to buy something if they choose not too.  One of the nasty little problems with big government types is that freedom allows too many choices and Romney is no different than those on the left who’d like to pare those choices down for their convenience and to extend the power and control of government (and their central planning efforts).

Newt Gingrich, who recently joined the run for the presidency, is no different than Romney as his record tells us and don’t let him try to fool you into thinking otherwise.  Huffington Post gives a partial list of the times Gingrich has touted health insurance mandates or attempted to argue in their favor from a moral perspective:

At an Alegent Health event in Omaha in 2008, Gingrich said it was "fundamentally immoral" for a person to go without coverage, show up at an emergency room and demand free care.

During the keynote address to the Greater Detroit Area Health Council’s annual Health Trends Conference in April 2006, Gingrich said he would require Americans earning above a certain income level to buy health insurance or post a bond, the Detroit Free Press reported.

In a June 2007 op-ed in the Des Moines Register, Gingrich wrote, "Personal responsibility extends to the purchase of health insurance. Citizens should not be able to cheat their neighbors by not buying insurance, particularly when they can afford it, and expect others to pay for their care when they need it." An "individual mandate," he added, should be applied "when the larger health-care system has been fundamentally changed."

And in several of his many policy and politics-focused books, Gingrich offered much the same.

In 2008’s "Real Change," he wrote, "Finally, we should insist that everyone above a certain level buy coverage (or, if they are opposed to insurance, post a bond). Meanwhile, we should provide tax credits or subsidize private insurance for the poor."

In 2005’s "Winning the Future," he expanded on the idea in more detail: "You have the right to be part of the lowest-cost insurance pool and you have a responsibility to buy insurance. … We need some significant changes to ensure that every American is insured, but we should make it clear that a 21st Century Intelligent System requires everyone to participate in the insurance system."

"People whose income is too low should receive Medicaid vouchers and tax credits to buy insurance," he continued. "Large risk pools (association health plans are one model) should be established so low-income people can buy insurance as inexpensively as large corporations. Furthermore, it should be possible to buy your health insurance on-line to lower the cost as much as possible."

Show me the difference between Gingrich and Obama (or Romney) on their desire to use the power of government to mandate insurance coverage.  The fact that Gingrich draws a line at a particular level of income doesn’t change the fact that in principal he agrees that government should have that power.

Just as serious a problem, at least for me, is Gingrich’s stance on global warming.  Gingrich appeared in a commercial for the “We initiative” with Nancy Pelosi.  The We Initiative is sponsored by Al Gore’s “Alliance for Climate Protection”. 

This alone is reason enough, in my book, to totally dismiss a Gingrich run.

 

 

Add in his support for an individual mandate for health insurance and his candidacy is DOA as far as I’m concerned. And Romney? On life support with a poor prognosis for the future.

~McQ

Twitter: @McQandO

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Meanwhile back to the more mundane but important stuff

Like uncovering more nonsense to be found in the promises made for ObamaCare.

Such as, “when everyone has insurance, Emergency Rooms will no longer be overcrowded.”

Uh, wrong:

Hospital emergency rooms, the theory goes, get overcrowded because people without health insurance have no place else to go.

But that’s not the view of the doctors who staff those emergency departments.
The real problem, according to a new survey from the American College of Emergency Physicians, isn’t caused by people who don’t have insurance — it’s caused by people who do, but still can’t find a doctor to treat them.

A full 97 percent of ER doctors who responded to the ACEP survey said they treated patients "daily" who have Medicaid (the federal-state health plan for the low-income), but who can’t find a doctors who will accept their insurance…."The results are significant," said ACEP President Sandra Schneider in prepared comments. "They confirm what we are witnessing in Massachusetts — that visits to emergency rooms are going to increase across the country, despite the advent of health care reform, and that health insurance coverage does not guarantee access to medical care."

Yes, that little 1/50th scale ObamaCare model that’s been functioning – well sort of – in Massachusetts (aka RomneyCare) has proved to be the debacle it was predicted to be.

And the ObamaCare promise hasn’t tested out there at all. 

The Massachusetts story Schneider refers to is important because it shows exactly what we can expect under the new health care law. In the wake of the Bay State’s 2006 health care overhaul, which provided the model for ObamaCare, emergency room visits soared. Backers of that overhaul made arguments similar to President Obama’s, saying that they hoped that by expanding insurance coverage, they’d get people set up with primary care physicians and thus reduce the number of emergency room visits. Didn’t happen. Lines to see doctors got longer. And as they did, emergency room visits rose 9 percent between 2004 and 2008, at which point the commissioner of the state’s Health Care Finance and Policy division kind of shrugged his shoulders and admitted that the uninsured aren’t really the cause of emergency room crowding. Too bad, I guess, and too late: Massachusetts passed the law anyway. And now the rest of us are stuck with it too.

Yup.  And the cost?

But John Goodman, the head of the National Center for Policy Analysis, did some rough calculations for the health policy journal Health Affairs last year, and he estimated that thanks to the law’s coverage expansion, we can expect somewhere in the range of 848,000 to 901,000 additional emergency room visits each and every year. ObamaCare’s backers are right that, as passed, the law will result in significantly greater health insurance coverage across the country. But all that coverage will come with a hefty price tag attached: about a trillion dollars over the next decade, and more like $1.8 trillion in the first full decade of operation. In return we’ll get longer wait times at the doctor, and even more crowded emergency rooms—but nothing like a guarantee of actual access to care.

Reality.

Sucks, doesn’t it?

~McQ

Twitter: @McQandO

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Polls against Walker similar to polls against ObamaCare

One of the Kossaks has a post up about the polls showing WI Governor Scott Walker on the wrong end of them as he moves to fix the WI budget and curtail the power of public sector unions.

Poll after poll is telling Scott Walker the same thing: you are on the wrong side of public opinion. While early polling can fool you, we now have substantial data both from the nation and from Wisconsin.

[…]

The bottom line is that Gov. Walker has overplayed his hand with the public. Every Republican governor who is trying to curtail collective bargaining is at risk for being seen by the public as taking rights away, not balancing the budget. That can be done with givebacks (and the public is all for that, especially through negotiation.) But trying to curtail collective bargaining is seen by the public as the power grab it really is. The polls leave no doubt.

My reaction is, “so what”?

I mean I seem to recall poll after poll telling Obama and the Democrats that Americans didn’t want the ObamaCare monstrosity.  But we were reminded that he’d won and elections have consequences.

Is that no longer true?

~McQ

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Commerce clause idiocy– deciding not to act same as acting, thus can be regulated and action mandated (ObamaCare ruling)

Another federal judge has found for the Constitutionality of the individual mandate. But if ever you’ve wondered what tortured logic looks like (made in an effort to justify something that just doesn’t fit) then you’ll be amazed to read the following from the ruling:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality. [emphasis added]

William Jacobson boils it down for you:

Our thoughts are now actions. There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.

Excuse me while I sit down and ponder all of that for a moment. Anytime you make a choice not to act you are "acting".  Therefore, the court has now decided, any decision to not to act (related to commerce) is an act and you can be therefore required to do what the government says you must do.

Or, more succinctly, you have no real choice regardless of what you decide, so sayeth the court.

If I decide not to buy a car, I’m acting, and if the government wanted to require me to buy a car, under this ruling, it could.

Good lord.

That’s just absurd (but Government Motors will most likely be putting together a heck of a lobbying effort to carry this ruling out to its logical end).

Oh and borrowing again from Jacobson, a little reminder of where all this “legal thought” is supposedly grounded:

The Congress shall have power…. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

~McQ

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Judge Kessler: Mandate Constitutional Because of “Free Riders”

There is a new opinion from U.S. District (DC) Judge Kessler ruling that the individual mandate imposed by ObamaCare is constitutional. The primary importance of the ruling is that it is squarely at odds with the Judge Vinson opinion from the District of Florida on one key issue: that deciding not to purchase something is an “activity” that can be regulated under the Commerce Clause. I’m still going through it, and will have more to say, but a few things really leaped out at me.

(1) Kessler places a lot of emphasis on the “free riders” who consume medical services but don’t pay for them. According to the judge, these free rider problems are illuminated by the congressional findings found in the Affordable Care Act (at pp. 39-40):

The findings on this subject could not be clearer: the great majority of the millions of Americans who remain uninsured consume medical services they cannot pay for, often resulting in personal bankruptcy. In fact, the ACA’s findings state that “62% of all personal bankruptcies are caused in part by medical expenses.” ACA § 1501(a)(2)(G), as amended by § 10106. Of even greater significance to the national economy is the fact that these uninsured individuals are, in fact, shifting the uncompensated costs of those services–which totaled $43 billion in 2008–onto other health care market participants, as well as federal and state governments and American taxpayers. See ACA §§ 1501(a)(2)(F), (G),as amended by § 10106; Thomas More Law Ctr., 720 F.Supp.2d at 894.

Because of this cost-shifting effect, the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage. According to Congress, the uncompensated costs of caring for the uninsured are passed on by health care providers to private insurers, which in turn pass on the cost to purchasers of health insurance. “This cost shifting increases family premiums by on average over $1,000 a year.” ACA §1501(a)(2)(F), as amended by § 10106. Thus, the aggregate effect on interstate commerce of the decisions of individuals to forgo insurance is very substantial.

There are many problems with these “findings” chief among which is an innumeracy problem. According to the first two quoted sentences, we are supposed to infer that 62% of all personal bankruptcies are made up of those “who remain uninsured” and “consume medical services they cannot pay for.” Indeed, according to Kessler’s understanding of the findings, the foregoing population is the “great majority of Americans who remain uninsured.” The only problem is, even if we assume that the 62% statistic is correct (which is a stretch), the number of personal bankruptcies every year does not even reach 2 million. Indeed, 2009 saw personal bankruptcies soar by 32% … to 1.41 million. Sixty-two percent of that is just 874,200, which is far, far fewer people than the “great majority of the millions of Americans who remain uninsured.”

(2) Another glaring issue is that the “cost-shifting” complained of is entirely the fault of the federal government, not “free riders,” thanks to Congress passing EMTALA in 1986, pursuant to which practically every hospital in the nation was forced to accept any and every patient who requested “emergency services.” In short, Congress created the free riders with this legislation.

Now let’s follow the logic here: (a) hospitals refuse to treat patients who can’t afford their medical services, therefore Congress must force hospitals to treat regardless of ability to pay (i.e. costs shifted to hospitals); (b) Patients who can’t afford the medical services, but who hospitals must treat, raise costs of medical services, which are mostly paid by insurers who raise their rates and pass them on to paying patients (i.e costs shifted to service-providers, then insurers, then paying patients); (c) insurance costs are entirely too high because uninsured patients, who can’t afford insurance or medical services, but whom hospitals must treat anyway, which drives up the costs of services and therefore the costs of insurance, and therefore Congress must force everyone to buy insurance (i.e. costs shifted from paying patients to those who can’t afford services or insurance); (d) because some people can’t afford insurance, they must be subsidized in their mandated purchase of insurance by taxpayers (i.e. costs re-shifted back to paying patients).

Putting it all together, according to Kessler’s opinion, Congress must be able to force individuals to purchase insurance because individuals who can’t afford insurance, but still consume health services (thanks to Congress), are causing the health insurance market to become distorted. (Oh, and by the way, those who can afford insurance are going to have to subsidize those who can’t and are therefore responsible for this whole mess in the first place.) Does that make any sense?

(3) The one other thing that really struck me as worrisome is Kessler’s emphasis on the infamous Wickard v. Filburn case (at p. 40):

In this case, the link [between the activity and the market being regulated] is strikingly similar to that described in Wickard: individuals are actively choosing to remain outside of a market for a particular commodity, and, as a result, Congress’s efforts to stabilize prices for that commodity are thwarted. As Wickard demonstrates, the effects of such market-distorting behavior are sufficiently related to interstate commerce to justify Congress’s efforts to stabilize the price of a commodity through its Commerce Clause power.

This is the reasoning underpinning Kessler’s holding (at p. 38) that “[b]oth the decision to purchase health insurance and its flip side–the decision not to purchase health insurance–therefore relate to the consumption of a commodity: a health insurance policy.” In this view, any decision made about an arguably economic subject, even the decision not to participate in a market concerning that economic subject, is subject to regulation by Congress.

Accordingly, should Congress decide to regulate the market for U.S automobiles, your decision to not purchase a vehicle can be regulated and even penalized by federal law. In fact, if Kessler’s view of the Constitution is correct, then Congress could require that you purchase a GM or Chrysler vehicle in order to stabilize the price of that commodity. Or perhaps, because of free rider problems, you can be penalized for choosing not to have children who would grow up, enter the labor force and pay the Social Security and Medicare taxes necessary to support you in your older years. If Kessler is correct, then the only limit on Congressional power is the inability to conjure up a market to be regulated, since any decision (participate/not participate) will have a substantial effect on that market when considered in the aggregate.

I would submit that this cannot be the correct view. The Commerce Clause power has already been distended far beyond what was intended when it written. If the Supreme Court adopts this decision, or something similar, the Congress would effectively have carte blanche to regulate whatever it desires.

In any event, those three things stood out to me. I’ll try to have some more on the opinion itself by tonight.

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