Any of the health care / legal experts care to weigh in on the day’s activities?

Ashot here…I’m adding a first person account from yesterday’s arguments. And here’s the link to the audio.

Impressions from inside the courtroom

Mark A. Hall

Wake Forest University

The room was packed and buzzing with excitement. Some people clearly had slept outside last night. Even some of the attorneys general from the challenger states had to stand in line to get in. In the way into the building, I spotted none other than Ken Cuccinelli, attorney general of Virginia and lead party in the Fourth Circuit case. Sitting in my same row in the courtroom was a virtual quorum of the Senate Finance Committee, including Senators Leahy, Baucus, Grassley, and Kerry.

Solicitor General Verrilli encountered some forceful challenges early on in his presentation In particular, Chief Justice Roberts and Justices Scalia and Alito raised concerns about the slippery slope problem, citing examples such as burial insurance, gym membership, and mandatory cell phones to help with police emergencies.

Perhaps one of the most memorable exchanges, and certainly one that will resonate in the media, involved a question from Justice Scalia asking Solicitor General Verrilli to define the market.

JUSTICE SCALIA: Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

GENERAL VERRILLI: No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary.

Students of the Court, and of effective rhetoric, know that how issues are framed is critical to how analysis and decisions proceed. Thus, much of the questioning throughout the morning addressed the issue of which of several markets the Court should regard as being regulated: the insurance market, all health services, or the portion of health services the uninsured people are likely to use. As another example of framing, Justice Alito countered the government’s position that the uninsured force others to pay for their care by noting that most people subject to the mandate are required to pay more into the insurance pool than they are expected to use. Justice Roberts also pointedly observed that the comprehensive insurance mandated by the law includes several services that many people never use, such as pediatric care and substance abuse treatment. So, it appears that cross subsidies are in the eye of the beholder.

None of the Justices appointed by Democratic presidents expressed any substantial concerns about the government’s commerce clause position—suggesting that their votes are secure, as has been speculated. Instead, they appeared to rise to the government’s defense. Toward the end of the first hour, Justice Sotomayor crisply defined the government’s three main lines of defense somewhat more clearly than even the Solicitor General had. About 15 minutes into the argument, Justice Breyer spoke up to offer the government some support. He observed that Congress created commerce where none previously existed when it started the Bank of the US, for instance, which Justice Marshall’s opinion in McCulloch v. Maryland famously upheld under the Necessary and Proper clause.

That was the first of two novel arguments Justice Breyer made that I don’t recall reading in the principal briefs. He also pressed several times an argument that should appeal to public health lawyers: what if there were a rampant contagious disease that threatened 10 million lives; couldn’t the government mandate vaccinations? If so, what does it matter that people who are forced to be vaccinated weren’t engaged in any commercial activity?

About 30 minutes in, the Lochner v. New York case was unexpectedly introduced into the arguments, in the form of questioning from Justice Scalia about whether the term “proper” in the Necessary and Proper clause has independent force. Chief Justice Roberts joined in, noting that the Court had earlier expressed concerns about unwieldy substantive due process jurisprudence only with regard to constitutional limits on states’ police plenary powers, and not with respect to limiting the federal government’s enumerated powers.

Tax arguments, on the other hand, received fairly short shrift in all of the arguments. There seems to be very little support, on either side of the Court’s ideological divide, for sustaining the individual mandate as an exercise of Congress’ taxing power. The challengers also reminded the Court that, if this were a tax, they still contend that it is unconstitutional as an unapportioned “direct tax.”

Both Paul Clement for the states and Michael Carvin for the private parties spoke smoothly and quickly. Justices Sotomayor and Breyer were especially active in challenging their positions, with Justices Kagan and Ginsburg also chiming in regularly. Especially notable, I think, were Justice Breyer’s several references to his concern that barring the federal government from mandating individual health insurance in this case might prevent it from responding effectively to a virulent epidemic.

One of my favorite moments, which drew hearty laughs, was this exchange with Justice Kagan: “Well, doesn’t that seem a little bit, Mr. Clement, [like] cutting the bologna thin? I mean health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.”

I listened most attentively to questions for the challengers from the Court’s conservative wing. All eyes and ears were on Justice Kennedy, as a potential swing vote, and he spoke up early on (about 3 minutes in), raising a key point: is it “true that the noninsured young adult is, in fact, an actuarial reality insofar . . . health insurance companies figure risks? That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?” Justice Kennedy repeated this sophisticated point later: “they are in the market in the sense that they are creating a risk that the market must account for.” And, near the end of the morning’s argument, he interjected (in response to the slippery slope concern that regulating here would allow the government to regulate anything): “I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.”

Later, Chief Justice Roberts challenged the analogy to requiring people to buy cars, noting that not everyone is in the car market, but they are all in the health care market. He made the same points several times in different ways. For instance, to Mr. Carvin: “I don’t think you’re addressing their main point, which is that they are not creating commerce in health care. It’s already there, and we are all going to need some kind of health care; most of us will at some point.” And, in response to Carvin’s analogy to mandatory mortgage insurance: “I don’t think that’s fair, because not everybody is going to enter the mortgage market. The government’s position is that almost everybody is going to enter the health care market.”

117 Responses

  1. Is a trick question to get us to identify ourselves as experts?

    I have been too busy to hear or pay that much attention to the proceedings. The portions of the audio I heard driving home today were not good for Obama. The SG was not persuasive. Breyer sounded desperate and confused in acting as an unabashed advocate.

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    • I thought Verrilli was surprisingly ineffective. I thought Clement was a well oiled machine. If best oral argument wins, the mandate is gone. However, counsel conceded that after one seeks medical attention one is in commerce, and can be forced to buy insurance. I think that must have been the high point for the government. It may have made enough impact on Kennedy or Roberts to change the vote. Strange moment.

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      • I will have to read it when I can, but that strikes me as an unwise and unnecessary concession.

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        • MR. CLEMENT: Well, Justice, I think there is two points to make on that. One is, a lot of the discussion this morning so far has proceeded on the assumption that the only thing that is at issue here is emergency room visits, and the only thing that’s being imposed is catastrophic care coverage; but, as the Chief Justice indicated earlier, a lot of the insurance that’s being covered is for ordinary preventive care, ordinary office visits, and those are the kinds of things that one can predict.

          So there is a big part of the market that’s regulated here that wouldn’t pose the problem that you’re suggesting; but, even as to emergency room visits, it certainly would be possible to regulate at that point. You could simply say, through some sort of mandate on the insurance companies, you have to provide people that come in — this will be a high-risk pool, and maybe you will have to share it amongst yourself or something, but people simply have to sign up at that point, and that would be regulating at the point of sale.

          JUSTICE KAGAN: Well, Mr. Clement, now it seems as though you’re just talking about a matter of timing; that Congress can regulate the transaction, and the question is when does it make best sense to regulate that transaction? And Congress surely has within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It’s just a matter of timing.

          ————————

          As to the SG:
          George, as inexplicable as it was, it sounded like ch-ch-choking. Listen to his first few minutes at CSpan. Not smooth.

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  2. Was the SG presenting the best arguments and they happen to suck? Or, did he choke under the pressure?

    Here’s an interesting analysis of on CJ Robert’s word choice.

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  3. I caught some of the oral arguments driving back (late) from work on C-SPAN. Clement was amazingly good. I didn’t catch who was questioning him at some point (a female justice, not Sotomayor), but it was a rare instance when the Justice looked hesitant, not the attorney.

    Verrilli didn’t sound good. Hell, his opening statement sounded tentative.

    Disagree with QBs assessment of Breyer.

    Did the Angry Sphinx utter a syllable today?

    BB

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    • My assessment of Breyer seems to be shared by others.

      One of the problems with the ER concession by Paul is that the ER of course is not “interstate” commerce in any world but the strange world of “constitutional law.” But that is in part where the mischief of Wickard comes in.

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  4. Mark, do you think that the mandate fundamentally changes the relationship between citizens and the Federal government as Kennedy says?

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    • Mark, do you think that the mandate fundamentally changes the relationship between citizens and the Federal government as Kennedy says?

      No, I don’t. Both Clement and Carvin think the federal government can legitimately do a taxpayer based program like Medicare, or Medicaid, or the V.A. Preserving the existing private insurers seems less of a fundamental change than socializing medical insurance or socializing medicine itself. But their constitutional suggestion is that while the federal government could radically change the private medical insurance market under the constitution and compel citizen participation through the tax power, it cannot force a citizen to engage in commerce with private insurers.

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      • Mark:

        Preserving the existing private insurers seems less of a fundamental change than socializing medical insurance or socializing medicine itself.

        I would argue, as Holman Jenkins does today in the WSJ (subscritpion required), that far from “preserving” existing private insurers, ACA is simply accelerating and facilitating the transformation of insurers into little more than administrators of a socialized health care plan.

        To invoke the classic insurance death spiral is, frankly, a bit odd in a law that completes the metamorphosis of health insurance into something else, certainly not insurance. With ObamaCare, the industry takes another fateful step in surrendering to regulators the job of designing coverage, assessing risk, setting rates and deterring inefficient behavior. Why the Affordable Care Act (as the law is widely known) even keeps insurers around is a bit of a mystery. But keep them it does, collecting a rake-off for administering a system of national health care masquerading as insurance regulation.

        This is the role the industry has accepted, and it comes with risks—namely congressional underfunding—but stop calling it insurance.

        Insurance is an investment contract: You pay today in return for a promise to be paid later. In any actuarial sense, however, Washington’s jig was up a long time ago. The problem is not that the ObamaCare statute can’t work without the mandate. The problem is that it can’t work without the Chinese or someone lending us trillions of dollars indefinitely so the federal government can keep spending money it doesn’t have.

        Beyond that, though, I don’t see why the constitutionality of a power to implement one fundamental change in the relationship between citizens and the state necessarily implies the power to implement a seemingly (and I use that word advisedly) less fundamental change in that relationship. Clearly the government has the power to tax and fund a retirement benefits program, ie FICA taxes and Social Security, and upon implementation that represented a very fundamental change in the relationship between the government and citizens. Would you argue, then, the constitutionality of the FICA tax and Social Security implies that the government has the legal power to compel people to invest in privately run investment funds (which of course could in turn then be regulated and perhaps even guaranteed by the feds) which, at the time, would have seemed a much less drastic change in the relationship between citizen and state? If not, then I see no reason why a constitutionally valid federal power to tax and fund a national health care plan implies the power to compel someone to buy privately provided “insurance”.

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  5. How does growing marijuana for personal, medically approved use (within the state of California) impact “interstate” commerce? That seems to be part of the strange world of “constitutional law”.

    BB

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    • Growing marijuana for personal use or even sale to your neighbor is not interstate commerce.

      I have no problem with that at all.

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  6. Good to see you around, QB. I’m swamped too, but my reports have been consistent with what everyone else is saying above.

    QB- Totally changing topics, I read Captains Corageous and really enjoyed it so thanks for the recommendation.

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  7. “fairlingtonblade, on March 27, 2012 at 10:00 pm said: Edit Comment

    How does growing marijuana for personal, medically approved use (within the state of California) impact “interstate” commerce? That seems to be part of the strange world of “constitutional law”.

    BB”

    It doesn’t. Neither is growing wheat for your own consumption “interstate commerce”. Wickard v. Filburn and Gonzales v. Raich were both wrongly decided.

    http://en.wikipedia.org/wiki/Wickard_v._Filburn

    http://en.wikipedia.org/wiki/Gonzales_v._Raich

    Interesting write up on the Solicitor General’s argument:

    “Obamacare’s Supreme Court Disaster

    —By Adam Serwer
    | Tue Mar. 27, 2012 12:00 PM PDT”

    “Justice Samuel Alito asked the same question later. “Could you just—before you move on, could you express your limiting principle as succinctly as you possibly can?” Verrilli turned to precedent again. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.”

    http://motherjones.com/mojo/2012/03/obamacare-supreme-court-disaster

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  8. There was an exchange that I found interesting — that if the mandate was truly about preventing “free riders” from shifting catastrophic costs to others/taxpayers/hospitals, it would not require the purchase of a comprehensive coverage:

    Clement: But let me also say that there is a real disconnect then between that focus on what makes this different and statute that Congresses passed. If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things. And that gets at the idea that there is two kinds of cost shifting that are going on here. One is the concern about emergency care and that somehow somebody who gets sick is going to shift costs back to other policy areas — holders. But there is a much bigger cost shifting going on here, and that’s the cost shifting that goes on when you force healthy people into an insurance market precisely because they are healthy, precisely because they are not likely to go to the
    emergency room, precisely because they are not likely to use the insurance they are forced to buy in the health care insurance. That creates a huge windfall. It lowers the price of premiums.

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  9. Perhaps Verrilli didn’t have a decent response to the broccoli question because there is not a limiting principle. The Commerce Clause is infinitely elastic. There is nothing that does not affect interstate commerce.

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  10. If the Commerce clause is infinity elastic, then Justice Thomas was correct in his dissent in Raich: ” If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”

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    • Very clearly, in principle, the commerce power is limited by the guaranteed rights. McCulloch v. Maryland

      What guaranteed right is trampled here? The essence of the constitutional argument against the mandate is that both liberty and property rights are impaired by forcing persons to buy contracts from private companies. While I thought the mandate would be upheld based on the reluctance of the Supremes to interfere with a congressional judgment in the flow of actual commerce, which insurance is, there has always been the possibility that this could be seen as limiting liberty or property rights without due process. All the talk about forcing people into commerce is “liberty” talk, and it does resonate.

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  11. FB:

    Did the Angry Sphinx utter a syllable today?

    Why would he want to ruin his 5 year streak? Besides, everyone already knows what his opinion is. Heck, any 1L should be able to write his concurrence/dissent right now.

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  12. A question for the lawyers:

    If Verillii was truly as god-awful as has been widely reported, and still 4 or perhaps even 5 (or more?) Justices ultimately vote to uphold the constitutionality of ACA, what’s the point of even having oral arguments? Isn’t it the case that the Justices have generally made up their minds already, regardless of the arguments presented by the lawyers?

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  13. Did the Angry Sphinx utter a syllable today?

    The answer is on Page A8 of the dead trees WaPo where they have succinctly summarized the comments of each justice:

    http://www.washingtonpost.com/todays_paper?dt=2012-03-28&bk=A&pg=8

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  14. Mike:

    Besides, everyone already knows what his opinion is.

    Doesn’t everyone already know the opinion of most of the Supremes already? I suspect Thomas is probably more honest than most of the members, in that he doesn’t pretend that what the lawyers say has any bearing on his ultimate decision, nor does he pretend that any questioning/analysis done during oral arguments will sway any of the other justices, whom he knows have also already made up their minds.

    It seems to me that oral arguments are, generally speaking, little more than an academic exercise.

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    • Scott, I have changed the opinion of a majority of an appellate court in my favor on oral argument, always, I suspect with the assistance, after the fact, of the justices who favored my case. Roberts, as a practitioner, was the Supremes’ fave. He won cases on oral argument, according to those who know. Clement may have done it this time, with Verrilli’s help.

      The Supremes do not talk among themselves before submission. Breyer says after submission, when they confer, their views often change. Most cases are not 5-4, most come very close to unanimity. I thought Verrilli was so bad and Clement so good that I will not be surprised if this goes 6-3 to strike the mandate, and that there will be huge discussion among them as to what else gets struck. Also, how the opinion is written will be important for the future of federalism, of commerce cases, and more. If this case deadlocks in conference because of any issue that cannot get 5 on board, they may use the Anti-Injunction statute to punt. A lot of how that materializes will have depended on yesterday.

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      • Mark:

        Thanks for the explanation. If at least one of the 4 liberals votes against expectations, then the utility of oral arguments will indeed be demonstrated, I think.

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  15. Scott:

    what’s the point of even having oral arguments?

    If you read yesterday’s transcript, you’ll see that Kennedy doesn’t appear to have made up his mind yet, though it seems that he is leaning toward striking down the mandate.

    Even Thomas, who never speaks anymore, values the oral arguments as helping him and his colleagues process what they have already been thinking.

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  16. “yellojkt, on March 28, 2012 at 7:54 am said: Edit Comment

    Perhaps Verrilli didn’t have a decent response to the broccoli question because there is not a limiting principle. The Commerce Clause is infinitely elastic. There is nothing that does not affect interstate commerce.”

    That’s pretty much the post Wickard v. Filburn view. Presumably under this approach, the entire Eighteenth Amendment (Prohibition) was totally unnecessary. The Congress could have passed the Volstead Act under it’s Commerce Clause powers.

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  17. All the talk about forcing people into commerce is “liberty” talk, and it does resonate.

    Kathleen Parker hits that note pretty hard today. I’m still baffled by the pretzel logic that has decreed that government financed (by confiscatory taxes no less) programs are perfectly hunky-dory but that mandates are an affront to freedom. There seems to be a bit of disingenuous line-drawing going on designed to proscribe the ACA while using as acceptable counter-examples concepts closer to socialized medicine than the ACA’s opponents would normally tolerate.

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    • yello:

      I’m still baffled by the pretzel logic that has decreed that government financed (by confiscatory taxes no less) programs are perfectly hunky-dory but that mandates are an affront to freedom.

      The issue at hand is whether or not something is constitutional, not whether it is “hunky-dory” or an affront to freedom. It is possible for a given policy (like, for example, the kind of taxes you prefer) to be both constitutional and an affront to freedom. By arguing that X is constitutional in no way whatsoever implies an argument that it is “hunky-dory” or preferable policy.

      There seems to be a bit of disingenuous line-drawing going on designed to proscribe the ACA while using as acceptable counter-examples concepts closer to socialized medicine than the ACA’s opponents would normally tolerate.

      Again, an argument that something is constitutionally acceptable does not imply that it is therefore politically tolerable. Indeed, pretty much the only reason ACA has been structured in the constitutionally questionable way that it has been structured is that, had it been done in a more constitutionally acceptable way, it almost certainly would not have garnered enough political support.

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      • Again, an argument that something is constitutionally acceptable does not imply that it is therefore politically tolerable. Indeed, pretty much the only reason ACA has been structured in the constitutionally questionable way that it has been structured is that, had it been done in a more constitutionally acceptable way, it almost certainly would not have garnered enough political support.

        That was the intent, anyway. The intent was to use the Heritage Foundation and Romney plans as blueprints to engage and attract Rs. As it turned out, they probably could have passed a straight tax and credit proposal by the same strictly partisan margin.

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        • Mark:

          As it turned out, they probably could have passed a straight tax and credit proposal by the same strictly partisan margin.

          I wonder. I suspect it would have been a much more difficult sell even among some Dems if it was presented as a simple entitlement program coupled with hefty tax increases.

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  18. For those who haven’t seen it, Ezra’s interview with Randy Barnett is worth a read:

    “Obamacare’s most influential legal critic on Tuesday’s oral arguments
    Posted by Ezra Klein at 04:52 PM ET, 03/27/2012”

    http://www.washingtonpost.com/blogs/ezra-klein/post/obamacares-most-influential-legal-critic-on-tuesdays-oral-arguments/2011/08/25/gIQAq2NpeS_blog.html

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  19. “I’m still baffled by the pretzel logic that has decreed that government financed (by confiscatory taxes no less) programs are perfectly hunky-dory but that mandates are an affront to freedom. ”

    The Sixteenth Amendment paved the way for most of those programs, back when Progressives used to actually amend the Constitution to make their preferred policy outcomes constitutional. That practice fell out of favor with FDR when it became clear that getting a favorable court ruling took less effort.

    http://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_United_States_Constitution

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  20. From jnc4p’s link:

    “The technical doctrine, which Justice Kennedy mentioned in passing, is that there’s presumed constitutionality for laws passed by Congress”

    Why? why would you assume that?

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  21. “novahockey, on March 28, 2012 at 9:03 am said: Edit Comment

    From jnc4p’s link:

    “The technical doctrine, which Justice Kennedy mentioned in passing, is that there’s presumed constitutionality for laws passed by Congress”

    Why? why would you assume that?”

    To set the burden of proof on those who challenge the law. I.e. If a law isn’t challenged, then it’s presumed constitutional. Or to put it another way, the courts only review federal laws in response to a challenge. Under your approach, all laws would be considered invalid until they were reviewed. Some European countries have this approach where laws are reviewed by a Constitutional Court after enactment but before they take effect.

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    • Thanx to jncp for the Barnett link and to yjkt for the Parker link. And jnc explained the presumption as a practical matter perfectly. I can only add that Congress is sworn to uphold the Constitution and that oath is recognized by the presumption.

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  22. see — learn something everyday at ATiM

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    • see — learn something everyday at ATiM

      Yesterday it was the TacoCopter and LobsterCopter and today it’s the technical doctrine.

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  23. From the Klein-Barnett interview; Barnett says
    “The text of the Constitution itself gives Congress the power to levy taxes on people and on income. We can’t dispute that. It does not give Congress the power under its commerce power, at least not expressly, to make them do business with private companies.

    The second point I would make is that the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.”

    Which seems to imply that the eventual state of healthcare in this country will be gov’t provided. If universal coverage can’t be achieved through private insurers, the left will push through medicare for all. By killing the ACA, conservatives are going to push the final outcome to the left.

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    • Brian, Verrilli should have been ready to say Congress can regulate health insurance so it can require, incident to the regulation, that everyone buy in or pay a penalty in the form of a tax under its tax power. He never made that clear. He just screwed around and wasted his bullets. He let the Justices treat “care” and “paying for care” as separate issues.

      The insurance industry will determine the next bill. It won’t be single payer. When it comes, it will be tax-and-credit. Health care tax, with 100% of the tax credited for having purchased a medical policy.

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    • bsimon:

      By killing the ACA, conservatives are going to push the final outcome to the left.

      That is where it is going anyways, even if ACA is deemed constitutional. The notion that ACA does and will preserve private health care insurance is folly. The right isn’t pushing anything to the left. The left is pulling the final outcome towards itself by enticing credulous voters with empty promises of something for nothing.

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  24. The intent was to use the Heritage Foundation and Romney plans as blueprints to engage and attract Rs.

    There seems to have been some bait and switch here. The constitutional weakness of mandates were never an issue when McCain embraced them. The concern seems to have risen whole cloth only after ACA got passed. It is opposition to health care reforms that is driving qualms over its constitutionality, not vice versa.

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    • yello:

      It is opposition to health care reforms that is driving qualms over its constitutionality, not vice versa.

      Strange, then, that those in opposition have actually proposed their own reforms, if indeed they are opposed to reforms in general. I suspect that what you view as “opposition to reforms” is in fact simply opposition to particular reforms that you prefer.

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  25. “The left is pulling the final outcome towards itself by enticing credulous voters with empty promises of something for nothing.”

    How is a mandated purchase of insurance ‘something for nothing?’

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    • bsimon:

      How is a mandated purchase of insurance ‘something for nothing?’

      It isn’t. What the law actually does will of course not be something for nothing. Reality will not, indeed cannot, match the marketing campaign on which it was sold to the public, which included promises of more expansive coverage for a greater number of people at a lower cost for equivalent or better care than currently exists. And that was a promise of something for nothing.

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      • Reality will not, indeed cannot, match the marketing campaign on which it was sold to the public,

        Hmmm…Obviously I never bought that marketing campaign if one ever existed. My, probably biased, recollection is that Republican’s were countering a marketing campaign that never existed by claiming that Obama’s claim about free health care wasn’t true. This republican propogand led to the belief by many that Democrats were claiming health care would be free. We saw this more recently with Rush’s comments on the birth control.

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        • ashot:

          Obviously I never bought that marketing campaign if one ever existed.

          Of course it existed. The 3 cornerstone justifications for Dem health care reforms were that in the current system: 1) there are too many uninsured (more people will be covered), 2) “insurance” doesn’t cover things like pre-existing conditions (more expansive coverage), 3) our costs are greater than any other western nation (costs will come down). And we were assured that all of this will come without jeopardizing the current standard of care that most people enjoy, and in fact we will probably even achieve better health care ‘results”.

          My, probably biased, recollection is that Republican’s were countering a marketing campaign that never existed by claiming that Obama’s claim about free health care wasn’t true.

          Be that as it may, it doesn’t change my original point, which was that the nation’s health care system is moving left not because of the battles chosen by the right, but because of the success of the left in fooling ordinary voters into thinking they can get something for nothing.

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      • “the marketing campaign on which it was sold to the public, which included promises of more expansive coverage for a greater number of people at a lower cost for equivalent or better care than currently exists. And that was a promise of something for nothing.”

        My understanding of the lower cost argument is not tied to current costs, but projected costs. I also understand that some of the cost control proposals are already working. There actually is a logical, rational reason for why this works, if people are able to access lower cost preventative care & thus avoid higher cost health care services.

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        • bsimon:

          My understanding of the lower cost argument is not tied to current costs, but projected costs.

          That may be the hoped for reality, but that is not how it has been sold to the public. From the White House website on ACA (emphasis mine):

          In March 2010, Congress passed and the President signed into law the Affordable Care Act, which puts in place comprehensive health insurance reforms that will hold insurance companies accountable, lower costs, guarantee choice, and enhance quality health care for all Americans.

          Also worth noting, in light of ashot’s comments yesterday, is this, under the section heading Improving Quality and Lowering Costs (emphasis original):

          Free Preventive Care. All new plans must cover certain preventive services such as mammograms and colonoscopies without charging a deductible, co-pay or coinsurance. Effective for health plan years beginning on or after September 23.

          Yes, that is right. The White House is telling people that ACA provides “free” preventive care.

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  26. “Verrilli should have been ready to say Congress can regulate health insurance so it can require, incident to the regulation, that everyone buy in or pay a penalty in the form of a tax under its tax power. He never made that clear.”

    Verrilli’s error does not preclude the Justices from considering that argument; correct?

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  27. “bsimon1970, on March 28, 2012 at 10:23 am said: Edit Comment

    “Verrilli should have been ready to say Congress can regulate health insurance so it can require, incident to the regulation, that everyone buy in or pay a penalty in the form of a tax under its tax power. He never made that clear.”

    Verrilli’s error does not preclude the Justices from considering that argument; correct?”

    Of course not. The justices can do whatever they want to do.

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  28. anyone have any thoughts on severability?

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    • Yes. It’s logical to strike only those sections affected by the mandate if the mandate is struck. The Justices will not want that task. Quandary. Roberts will recall that he does not believe the mandate is in fact a command, but is only an alternative to avoid a tax, and the mandate will stand. Or they will all announce, 9-0, that the Anti-injunction statute denies them current jurisdiction, with concurrences suggesting to Congress what it might do to make the judging easier in 2015.

      Like

  29. This republican propogand led to the belief by many that Democrats were claiming health care would be free.

    It’s all about controlling the message and the narrative. The goals of the ACA are twofold, universal coverage and cost-containment. Whether those are mutually exclusive is difficult to say. At the very least, we need a more rational system.

    Like

  30. Strange, then, that those in opposition have actually proposed their own reforms,

    Which are, what?

    Like

  31. picking up on mark’s point — I think it’s all or nothing. splitting this thing up is not something they want (or should IMHO) do.

    Like

  32. President Obama promised three things for the ACA:

    1. Cover (almost) everyone
    2. Reduce health care costs (as defined by reducing the rate of growth)
    3. Everyone who likes what they currently have gets to keep it.

    You can’t do all three at the same time. Something has to give.

    Like

    • the nation’s health care system is moving left not because of the battles chosen by the right, but because of the success of the left in fooling ordinary voters into thinking they can get something for nothing.

      So both jnc and Scott listed 3 promises of the ACA and none of them was that something is free. Yet, scott continues to insist that the left was promising free stuff. I must be missing something. Anyway, if there was such a marketing campaign, it was a failure because the ACA has been unpopular since well before it was passed. Scott’s claim that the left successfully fooled voters is dubious.

      jnc’s point about the incompatable goals is valid and I’m happy to agree that the virtues of the ACA was oversold, but I still am not buying that one of the ways it was oversold was by promising health care for free. I think that’s largely a strawman that Republicans created and have subsequently spent 2 years beating to death.

      Like

      • ashot:

        I must be missing something.

        Yes, you are missing the fact that “something for nothing” does not mean “health care for free”.

        Promising that more people can be insured while at the same time decreasing the cost of it and also maintaining or even improving quality is promising something for nothing. As jnc noted, something has to give.

        Like

        • Yes, you are missing the fact that “something for nothing” does not mean “health care for free”.

          Damn it….you’re right. Those aren’t the same thing.

          I don’t necessarily agree that there is no way to insure more people, improve quality and decrease costs relative to the system that existed at the time ACA was passed. There was no way the ACA was going to accomplish that, but I think it’s possible. However, when you throw in the promise that people could keep their insurance, something has to give.

          Like

  33. From an interview by Ezra Klein with Charles Fried:

    There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.

    Why was this guy not in front of the court instead of Verrilli? I do find the ‘broccoli mandate’ a pretty silly analogy and having Scalia use it in open court doesn’t raise my opinion of him any.

    Like

  34. Yet, scott continues to insist that the left was promising free stuff. I must be missing something. Anyway, if there was such a marketing campaign, it was a failure because the ACA has been unpopular since well before it was passed.

    I’m assuming by ‘free’ he means more health care for more people at a lower cost, i.e. a better value. But I always get into trouble when I try to figure out his working definitions of common words.

    If anything, the features of the ACA have been undersold. Chris Cilizza has a graph detailing how people are unaware of popular features but more than aware of the unpopular mandate aspect.

    Like

    • yello:

      I’m assuming by ‘free’ he means…

      I never even used the word in this context.

      But I always get into trouble when I try to figure out his working definitions of common words.

      You never have to “figure out” my working definition of words. I am always quite happy to tell you, if you just ask.

      Like

  35. “the left was promising free stuff.”

    We had some problems with clients reporting people showing up demanding the “free Obamacare” immediately after enactment. but that was pretty isolated.

    I’d say the Medicaid expansion is largely free for people — as is the prevention no-copay stuff. at least on the surface.

    Like

  36. We had some problems with clients reporting people showing up demanding the “free Obamacare” immediately after enactment. but that was pretty isolated.

    And that also isn’t proof that it was democrats that fooled them into thinking they were getting something for free. Those people could have heard attack ads about “Obamacare” offering free care and drawn the conclusion that it was true. The fact that they used the term “Obamacare” a term not used by Obama or democrats arguably supports such a determination.

    I’d say the Medicaid expansion is largely free for people — as is the prevention no-copay stuff. at least on the surface.

    I’d mostly agree with that.

    In my rather limited personal experience in discussing the bill with the “common man”, most of the misperceptions about what the bill does that I have confronted are those created by Republicans.

    Like

  37. My bad. It was ashot who brought ‘free’ into the conversation.

    Like

  38. Apparently Scalia made a comment about the Cornhusker Kickback even though that provision was taken out of the bill. Good to see that he knows what’s in the bill.

    Like

  39. “f people are able to access lower cost preventative care & thus avoid higher cost health care services.”

    unless you’re talking about quiting smoking, preventive care does not lower costs.

    Data indicate that prevention increases costs.

    http://www.nejm.org/doi/full/10.1056/NEJMp0708558

    The key is targeted prevention, which is not what PPACA is all about.

    more at http://online.wsj.com/article/SB124476182985608115.html
    and http://www.cjr.org/campaign_desk/excluded_voices_5.php

    Like

    • Shrink is so skeptical of preventative [is that really a word?] care that he thinks everything we do to prolong life makes health care more costly.

      I used to question him at length about this at The Fix. I have a healthy family history – three grandparents who died in their 80s and 90s with no complications and having lived independently with no pills, drugs, or hospitalizations until the day or the day before they died, and three uncles with similar histories. But my mother fell and broke her hip at 86 and was in and out of the hospital for a year before she died and my dad had cancer for the last five years of his life, and was in hospital care for the last four months, before he died at 87. Shrink says it would have been cheaper if they all had heart attacks and died at 70, and we make it more costly if by clean living we all live until cancer or Alzheimer’s finally makes us cost a fortune.

      I would go so far as to say Shrink is cynical about this. And I think that cannot be correct, as I am 68 and still think of myself as alive and well.

      Like

  40. The key is targeted prevention, which is not what PPACA is all about.

    Which mostly supports the notion that we can provide better care or comparable care for less money. PPACA doesn’t accomplish it and in some areas it’s a step in the wrong direction, but there are ways to accomplish the goals of PPACA….well except the promise/goal of letting people keep their current insurance.

    Like

  41. The smoking thing is really something — smokers cost more in any given year, but they die earlier. While the rest of up continue to rack up costs. So in that sense, Shrink is right. but early deaths hardly seems like a desirable way to control costs.

    http://www.nejm.org/doi/full/10.1056/NEJM199710093371506

    So I should edit my above comment to reflect that — quit smoking and reduce your immediate health care costs in return for a longer life that of course costs more. The dead cost nothing.

    There’s Medicare data on the costs per age group — as you can imagine, the costs are much higher for your older (85+) than your 65-year-old beneficiaries.

    Like

  42. Shrink says it would have been cheaper if they all had heart attacks and died at 70

    Mark, I think shrink is right with respect to health care costs. I have frequently heard/read claims that all the obese people in our country causes health care costs to rise, but my understanding is that isn’t true. Obese people tend to die sooner and cost less. Based on nova’s comment, I’m guessing that isn’t true of smokers. Obviously there are other societal consideration regarding people living longer, but form a blunt health care costs perspective he is right.

    Like

  43. Yes, that is right. The White House is telling people that ACA provides “free” preventive care.

    No, that’s not what the White House is telling people. It’s saying exactly what it says.

    Like

    • ashot:

      No, that’s not what the White House is telling people. It’s saying exactly what it says.

      And what it says is “Free Preventive Care”. It is there is black and white. Even in bold. I’m not sure why you are disputing it.

      Like

  44. Good Lord I’m an idiot.

    Like

  45. Nah, it’s just that you saw through the spin. “Free” isn’t really free

    Like

  46. “The White House is telling people that ACA provides “free” preventive care.”

    Where “free” means it comes as part of an insurance package that the consumer has purchased or that has been purchased on their behalf.

    Like

    • bsimon:

      Where “free” means it comes as part of an insurance package that the consumer has purchased or that has been purchased on their behalf.

      Or, in other words, where “free” means “not free”.

      Like

  47. The dead cost nothing.

    There’s a joke about you being a lobbyist somewhere in there. I’m going to bookmark that quote to use as possible blackmail.

    Also, I’m pretty sure that is a line from Braveheart uttered by the evil King Edward Longshanks.

    Like

  48. “Also, I’m pretty sure that is a line from Braveheart uttered by the evil King Edward Longshanks”

    Yep.

    Longshanks: Not the archers. My scouts tell me their archers are miles away and no threat to us. Arrows cost money. Use up the Irish. The dead cost nothing.

    Like

  49. Or, in other words, where “free” means “not free”.

    Like those sales where you spend $100 and get something free. Free preventantive care when you spend $10,000/ yr on your health insurance!

    Like

    • ashot:

      Like those sales where you spend $100 and get something free. Free preventantive care when you spend $10,000/ yr on your health insurance!

      Exactly.

      Maybe Congress will pass a law compelling burger joints to provide “free” fries with every purchase of a burger. And then they can use the commerce clause to pass a law compelling us all to buy hamburgers. Everyone has to eat eventually, right? Undoubtedly, then, as a result of such wise and targeted regulation, no one will ever be hungry, burger prices will drop through the floor and of course they will never have tasted better.

      Universal burgercare for all! Let’s get out ahead of those Europeans for once.

      Like

  50. “Or, in other words, where “free” means “not free”.”

    And this, then, is the crux of your ‘something for nothing’ argument?

    Like

  51. “something for nothing’ argument”

    I couldn’t figure out why I’ve been humming Dire Straits since yesterday afternoon. Now I know.

    Like

  52. Universal burgercare for all!

    Only if it comes with ‘free’ broccoli.

    Like

  53. “I explained that reference yesterday.”

    It is a dubious assumption that there are no efficiences to be wrung out of the system.

    Like

  54. bsimon:

    It is a dubious assumption that there are no efficiences to be wrung out of the system.

    I don’t know anyone who makes such an assumption, but in any event I agree. The trouble is not that there are no efficiencies to be found, but rather that the cost of adding large numbers of the currently uninsured, who almost by definition cannot pay for themselves, along with an even greater number of things that must be covered, will inevitably push costs for those who actually do pay higher.

    If you want to lower the cost of a commodity, the last thing you should do is increase demand for it, which is primarily what Obama and ACA are promising to do, ie increase demand for health care services.

    Like

  55. For example, here’s a story digging into some of those other provisions within the ACA that are already lowering costs & improving outcomes:

    http://www.washingtonpost.com/blogs/ezra-klein/post/health-reform-at-2-why-american-health-care-will-never-be-the-same/2012/03/22/gIQA7ssUVS_blog.html?wpisrc=nl_wonk

    Across the country, however, a few health-care systems had made high-profile moves in another direction. Places like Kaiser Permanente in California and the Mayo Clinic in Minnesota were setting strict budgets for their patients and demonstrating, in study after study, that they could deliver higher quality outcomes at a lower cost than other hospitals and doctors.

    What these systems had in common was a model called integrated care, where doctors, hospitals and insurers work together to deliver the most cost-effective treatments. In integrated care systems, doctors are often paid a flat salary, rather than charging for each procedure they perform. They often receive incentive payments for hitting certain quality metrics.

    Alongside a handful of success stories, there were dozens of cautionary tales. Health-care costs did decrease in the mid-1990s, when Health Maintenance Organizations limited patients’ access to more costly, speciality providers, but patients left such payment plans in droves, which encouraged providers to stick with a volume-driven system.

    For the Obama administration, this represented an opportunity. Insurance premiums had grown by 131 percent between 1999 and 2009. If Congress was going to extend insurance to millions more Americans, it wanted a guarantee that those benefits would be affordable. The integrated-care model, they hoped, could control those costs even as it improved the quality of care. No “rationing” needed.

    Like

    • bsimon:

      You may be interested in this analysis from a couple years ago, according to which Mayo’s reputation as a low cost provider is based on data for costs to Medicare, not private health care plans. When Mayo’s costs to private plans were analyzed, a different story emerges.

      Last week, Minnesota Community Measurement unveiled a new Web site that provides the most concrete public data on the price of various physician procedures in clinics across Minnesota. Specifically, the Web site provides the average negotiated price from Minnesota’s four largest health plans for 105 procedures offered in a physician’s office. Based on this data, the Mayo Clinic is often the highest cost provider relative to other Minnesota providers.

      In the table linked here, I’ve collected some data from the MN Community Measurement that compares the Mayo Clinic’s prices to the low-cost MN provider, high-cost MN provider, and two large health care providers in the Twin Cities, Park Nicollet and HealthEast. I picked these two providers due to their size and because my review of the data showed that Park Nicollet offered a high-cost example and HealthEast offered a low-cost example. The table then ranks Mayo’s prices from highest to lowest price. The final columns show Mayo’s cost as a percent of Health East and Park Nicollet prices. The table does not include all 105 procedures. I limited the table to only procedures where the Mayo Clinic reported and where at least 50 providers reported. With more than 50 providers reporting on each procedure, the ranking and comparison is more meaningful.

      Based on the data in the table, Mayo costs far more than other Minnesota providers. Of the 69 procedures, Mayo’s price is the highest for 11 and among the top five highest for 48. On average, Mayo’s price was 220 percent higher than HealthEast and 180 percent higher than Park Nicollet.

      I don’t know how accurate this is. Perhaps nova will weigh in with any insights.

      Like

  56. Bsimon – Where “free” means it comes as part of an insurance package that the consumer has purchased or that has been purchased on their behalf.

    Shouldn’t that be “as part of an insurance package that the consumer has been forced to purchase…”?

    Like

  57. The Center for the American Experiment is a partisan think tank. Having said that, they do have a reputation for delivering a quality product, but its important to note they have an agenda. In the cited piece, the author notes a few important caveats, which bring into question the relevance of the comparison he’s trying to make.

    A few caveats
    None of this necessarily means that the Mayo Clinic is a high-cost health care system in Minnesota. I can think of at least four reasons why Mayo might still be a low- or average-cost provider.

    First, Mayo may charge lower prices for hospital services. The Minnesota Community Measurement data represent only the average negotiated price for a sample of physician services. Hospital services represent a larger share of the health spending pie, and Mayo may offer lower hospital pricing. According to the Minnesota Hospital Association’s MinnesotaHospitalPriceCheck.org website, Mayo Clinic’s St. Mary’s Hospital tends to report lower hospital charges than similarly sized hospitals in Minnesota. But, this is the list price—the price on your bill that no one pays—and not the price it negotiates with health plans.

    Second, Mayo may need to charge more to private-pay patients to cover shortfalls from uncompensated care and public payers like Medicare and Medicaid. Because public payments rarely cover the cost of care, providers must charge private payers higher rates if they expect to stay in business. At 40 percent of its patients, maybe Mayo has a higher proportion of Medicare patients. Greater Minnesota certainly has a higher proportion of elderly residents. That said, St. Mary’s Hospital and Rochester Methodist Hospital devote lower portions of their operating expenses (1.6 percent and 1.5 percent, respectively) to uncompensated care than the MN average (2.2 percent).[4]

    Third, while Mayo might price physician services higher, its patients may use these services less, making Mayo’s overall cost lower. Indeed, Mayo’s integrated approach is said to reduce the number of unnecessary procedures. Though Honeywell never encouraged my family to receive care at Mayo, other companies do, and they claim they save money.[5]

    Four, as a brand-new initiative from Minnesota Community Measurement, there may be some glitches in the system. On further review, Minnesota providers may demonstrate some kinks that question the comparability of the data. The fact is, the Minnesota Medical Association expressed serious concerns about the process that led to the new dataset.

    Like

    • bsimon:

      In the cited piece, the author notes a few important caveats, which bring into question the relevance of the comparison he’s trying to make.

      Certainly more analysis would be necessary to draw firm conclusions. But it seems to me that if he is right that the claims about Mayo being low cost are based only on treatment paid for by Medicare and not private plans, then the relevance of those claims to a discussion about how to lower costs are brought into question.

      Like

  58. I don’t profess to have any kind of legal mind. That said, here are some of my thoughts on some the things that were said during these sessions.

    Breyer: what if there were a rampant contagious disease that threatened 10 million lives; couldn’t the government mandate vaccinations? If so, what does it matter that people who are forced to be vaccinated weren’t engaged in any commercial activity?

    Could the government mandate vaccinations? I would have a problem with that, were that to happen. I am dismayed that members of the SCOTUS accept this premise. What if we had an overpopulation problem that threatened 10 million lives? Could the gov mandate sterilizations?

    Kagan: “Well, doesn’t that seem a little bit, Mr. Clement, [like] cutting the bologna thin? I mean health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.”

    NO. We get it IN CASE WE NEED health care AND want to insure against the possibility that the cost of our needs is not more than we can afford. For the life of me, I am not sure why this would cause a chuckle.

    Roberts: “we are all going to need some kind of health care; most of us will at some point…The government’s position is that almost everybody is going to enter the health care market.”

    All, almost all or most? Need or want? Interesting that he did not comment on the food market.

    VERRILLI: No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary.

    Really? First off, for the overwhelming majority of the time, the health care market is VOLUNTARY. Involuntary trips to the ER are, comparitively speaking to the rest of health care, virtually non-existent. Food is not unpredictable? Tell that to the homeless and the people living on welfare and the poor. The church around the corner provides a free sphagetti dinner weekly for just this reason. This man has never been to my kid’s Elementary school where breakfast is provided because a large percentage of the kids are in an unpredictable food situation.

    I think that I need to find the time to listen to the whole thing – these slices are not leaving me with a good feeling on the quality of our legal system.

    Like

    • Dave:

      NO. We get it IN CASE WE NEED health care AND want to insure against the possibility that the cost of our needs is not more than we can afford. For the life of me, I am not sure why this would cause a chuckle.

      I very much agree with you. Why that comment elicited a laugh is beyond me, especially in light of Clement’s response setting her straight:

      MR. CLEMENT: “Well, Justice Kagan, I’m not sure that’s right. I think what health insurance does and what all insurance does is it allows you to diversify risk. And so it’s not just a matter of I’m paying now instead I’m paying later. That’s credit. Insurance is different than credit. Insurance guarantees you an upfront, locked-in payment, and you won’t have to pay any more than that even if you incur much great expenses.”

      There is also the fact that much of what we call insurance exists not even for the purpose of diversifying risk, but rather for the purpose of avoiding taxes.

      Like

  59. “It it seems to me that if he is right that the claims about Mayo being low cost are based only on treatment paid for by Medicare and not private plans, then the relevance of those claims to a discussion about how to lower costs are brought into question.”

    Sortof. Mayo was brought into the discussion with regards to their participation in the changing the pricing model to the ‘integrated’ model vs the current standard of fee for service. The Nelson (Center of American Experiment) article appears to be comparing service fees between Mayo and other MN hospitals. If Mayo is able to effectively treat their Medicare clients at lower cost by using integrated services, isn’t that exactly what the rest of us should be demanding from our health care providers? The ACA is trying to find that answer, in order to improve outcomes while lowering costs – and actually deliver on the ‘something for nothing’.

    Like

    • bsimon:

      If Mayo is able to effectively treat their Medicare clients at lower cost by using integrated services, isn’t that exactly what the rest of us should be demanding from our health care providers?

      You should demand from your provider whatever you want to demand, and leave others to demand what they want from their provider. But it does strike me as somewhat odd that, if integrated services (or any other type of cost saving measure) was the indeed the magic pill people seem to think, greedy and rapacious insurance companies aren’t already demanding it, all without being dictated to by the law.

      The ACA is trying to find that answer, in order to improve outcomes while lowering costs – and actually deliver on the ‘something for nothing’

      The ACA is ostensibly trying to do many, many things, some of which are mutually exclusive. Which is precisely why it can and will never deliver on its promises of something for nothing.

      BTW, I say ostensibly because I find it very unlikely that the designers and sellers of ACA have been entirely honest about their intent with the law.

      Like

  60. “I find it very unlikely that the designers and sellers of ACA have been entirely honest about their intent with the law.”

    They’re not so different from the critics, are they.

    The ACA certainly isn’t the end-all, be-all solution to the healthcare problem this country faces. What it is, is: something. Which is more than the critics have offered. I don’t expect the ACA to last, unedited, for any significant length of time; nor do I want it to – there are provisions I don’t care for either, including the mandate. But, it is a change to the status quo, which is worth something.

    And, in that vein of thought, the worst possible outcome could be the declaration that the mandate is unconstitutional, for it will surely inspire congress to kick the can down the road for another 20 years, while the cancerous growth of healthcare expenses continues to chew away at our vitals.

    Like

  61. bsimon:

    They’re not so different from the critics, are they.

    I don’t know. Most critics of ACA seem to be pretty upfront about opposing it because they don’t want a government takeover of health care. What do you suppose their real intent is?

    But, it is a change to the status quo, which is worth something.

    This kind of thinking just baffles me. If the problem is spiraling costs, I don’t understand how doing “something” that must inevitably increase costs can be thought to be better than the status quo.

    And, in that vein of thought, the worst possible outcome could be the declaration that the mandate is unconstitutional, for it will surely inspire congress to kick the can down the road for another 20 years, while the cancerous growth of healthcare expenses continues to chew away at our vitals.

    I don’t think we should accept unconstitutional laws just because of a sense that “something” must be done. The constitution exists for a reason.

    Like

  62. “What do you suppose their real intent is?”

    Politics

    “If the problem is spiraling costs, I don’t understand how doing “something” that must inevitably increase costs can be thought to be better than the status quo.”

    I question your statement that change must inevitably increase costs; why does the US spend more on healthcare for lower quality care? It is a mistake to assume that we cannot achieve or surpass healthcare efficiencies that others have achieved. I also think costs aren’t the only relevant factor; return on those costs/expenses/investment is perhaps more important.

    “I don’t think we should accept unconstitutional laws just because of a sense that “something” must be done. The constitution exists for a reason.”

    Indeed. Constitutionality of the mandate remains to be seen. I would suggest that the unconstitutional argument is semantic; if the mandate’s penalty were structured as a tax, the constitutionality wouldn’t be questioned. That it is called something else in the ACA is, in my view, irrelevant.

    Like

    • I think that if Roberts votes to uphold the “mandate” he may explain that in an act of political obfuscation Congress refused to call the tax a tax, and called the option to buy insurance and not pay the tax a “mandate”. Indeed, if it were a real mandate, a true command to buy insurance under civil or criminal penalty, it would have been outside the power of Congress to enact, and Congress would have come within an inch of sabotaging its own effort with the phony language to disguise a tax. That strikes me as the only way a conservative jurist could vote for it, by recognizing what it is, and criticizing what it purports to be. What would be interesting is if that would be the majority opinion without liberal concurrences disavowing the limiting dictum. Because a Court united in that way would achieve the conservative constitutional goal while permitting here the liberal political goal. A limit to the Commerce clause would be established with liberal judicial approval, that could survive a change of composition of the Supremes, for a generation to come.

      That was just a thought, along the lines of John’s no majority opinion idea, fwiw.

      Scott, I heartily recommend National Review editor Richard Brookhiser’s biography of Hamilton: Alexander Hamilton, American.

      Like

  63. bsimon:

    I question your statement that change must inevitably increase costs

    I never made such a statement. My claim is that ACA must inevitably increase costs. Specifically, increasing the number of people covered by “insurance”, especially when those newly added are not paying for themselves, along with increasing the number things that are mandatorily “covered” by insurance, must, of necessity, increase cost. It really is not debatable. It is a certainty.

    Constitutionality of the mandate remains to be seen.

    Not really. The only thing that remains to be seen is the degree of SCOTUS’s commitment to upholding the constitution.

    I would suggest that the unconstitutional argument is semantic; if the mandate’s penalty were structured as a tax, the constitutionality wouldn’t be questioned.

    It is not at all a semantic difference. ACA’s constitutionally dubious structure is not just a random happenstance. It was designed that way, and not in a more constitutionally defensible way, for a reason, and that reason is not just because the words happen to sound different.

    I also reject the notion that the ability to effect a certain outcome using constitutional powers renders any power that effects the same outcome constitutional.

    And finally, I question the idea that the generic constitutionality of taxation makes any application of a tax necessarily constitutional. The argument for ACA seems to be that if the government simply imposed an insurance tax and then granted a credit for anyone who purchased insurance, this would have been constitutionally uncontroversial. I wonder. The power to do that would, for example, imply the power to impose a health tax on people, and grant a credit to, say, anyone whose weight falls within a certain “healthy” band, or anyone who exercised daily, or who undertook any number of activities that the government deemed preferable and wanted to penalize people for not undertaking. Such a power would, like the power now being claimed under ACA, render the power of the Feds virtually limitless, and hence would be, in my view, unconstitutional.

    Interestingly, BTW, based on your thinking as explained above, the power to impose such a health tax would also imply the power to, rather than tax and credit, simply impose a legal penalty on anyone who was overweight, or who didn’t exercise daily, or didn’t undertake whatever activities the government desired. Would such laws really pass constitutional muster in your eyes?

    Like

  64. Mark:

    I’ve read Ron Chernow’s biography of AH, which I heartily recommend to you. I’ve been looking for a new book to read, so maybe I will get Brookhiser’s, if I can get it on my iPad. Thanks.

    Like

  65. “increasing the number of people covered by “insurance”, especially when those newly added are not paying for themselves, along with increasing the number things that are mandatorily “covered” by insurance, must, of necessity, increase cost.”

    You’re making assumptions; that 1) those newly added are not paying for themselves; and 2) that the procedures for which coverage is mandated increase costs. The whole point of encouraging preventative care is to save money. If annual checkups & tests influence a person to manage their weight, we’re avoiding the cost of gastric bypass surgery or a lifetime prescription for insulin. Its the difference between short term thinking & long term thinking.

    Like

  66. Here’s a link supplied by NoVa from above about the value of preventative healthcare.

    http://www.cjr.org/campaign_desk/excluded_voices_5.php

    The jury is definetly still out on that one.

    Like

    • George, an excellent short article.

      Smoking prevention and flu shots for the elderly are cost effective, it seems, because of the large % of the patients who gain and the low cost per patient.

      The article touches upon cost shifting in one direction, but not the other. I would bet AA, which is ultra low cost treatment of an addiction, and generally is considered 35% effective, prevents great loss elsewhere than in medical costs. Assume [by assumption] that 35% of alcohol related auto collisions, brawls, lost jobs, family break-ups and skid row disappeared. That won’t happen, but that is the sort of social cost that can be saved, in addition to the straight up health care saving on 35% less liver damage and brain damage.

      Of course, AA works in part b/c it is voluntary. AA as compelled treatment would have a much lower success rate [not that 35% is all that high to begin with]. Just musing on additional non-medical savings.

      Like

  67. bsimon:

    You’re making assumptions; that 1) those newly added are not paying for themselves;

    Not really. If a person who currently can afford insurance but chooses not to purchase it is subsequently forced to buy it, he will thus be incentivized to make greater use of covered health services, in order to make sure he is getting value for his money. Recall that much of what we are calling “insurance” is not really that, but is instead a payment plan for regular, often times predictable, non-catastrophic expenses. If a person is forced to pay for it whether he uses the services or not, he might as well use them. More demand means higher costs.

    But beyond that we know for certain that many of them will not be paying for themselves. Simple logic tells us that it must be so. If there are X number of people who cannot afford insurance, passing a law compelling them to buy insurance doesn’t magically make them able to afford it. If they are to follow the law and get insurance, someone else is going to have to pay.

    and 2) that the procedures for which coverage is mandated increase costs. The whole point of encouraging preventative care is to save money.

    Well, if that is the whole point, don’t you think it would be sensible to confirm, before passing the law, that it actually does save money? Alas, Obama and the Dems apparently didn’t think it was sensible, since it is still not at all clear that it saves money, and in at least some instances almost certainly does not. Which is one of the reasons I am doubtful about their proclaimed intent with regard to passing the law.

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  68. “Which is one of the reasons I am doubtful about their proclaimed intent with regard to passing the law.”

    What might their unproclaimed intent be?

    Like

  69. bsimon:

    A government takeover of health care.

    Like

  70. So, in the goal of achieving a government takeover of healthcare, their first move is to expand the private insurance industry? Won’t that make a government takeover more difficult?

    Do you think that the ‘repeal and replace’ strategy of the critics will lower the chances of a gov’t takeover of healthcare?

    Like

  71. bsimon:

    Won’t that make a government takeover more difficult?

    Not at all. It makes it much easier. Already it is being used as the justification for making the insurance industry more and more regulated, with the government increasingly dictating who and what insurance companies must cover. That regulation will simply increase over time, until the insurance industry is effectively rendered to be little more than a middle-man, skimming a profit for the privilege of being an agent of the government, at which point the argument will be made that it would be much more efficient to eliminate the middleman, who is no longer adding any value to the process, and is, in effect, simply collecting corporate welfare via government guarantees. ACA puts us well on the road already with the command that “insurance” must be provided to those with pre-existing conditions at community rates, which effectively eliminates the primary purpose and value of an insurance company, namely, the proper evaluation and pricing of individual risk relative to population risk.

    This is precisely how a government takeover of an industry must occur, ie via long term stealth, in a democracy where most people actually oppose the takeover in principle.

    Like

    • That regulation will simply increase over time, until the insurance industry is effectively rendered to be little more than a middle-man, skimming a profit for the privilege of being an agent of the government, at which point the argument will be made that it would be much more efficient to eliminate the middleman, who is no longer adding any value to the process, and is, in effect, simply collecting corporate welfare via government guarantees

      Is that how you have viewed, or do view, utilities regulation, as well?

      Like

  72. bsimon:

    Do you think that the ‘repeal and replace’ strategy of the critics will lower the chances of a gov’t takeover of healthcare?

    Somewhat, but I am pretty pessimistic either way. The growth of the federal government seems to me to be an unstoppable trend. Maintaining a limited, constitutional government requires a will and a culture which, regrettably, we have largely lost. I doubt we will ever get it back.

    Like

  73. Mark:

    Is that how you have viewed, or do view, utilities regulation, as well?

    Not necessarily. The justification for regulation of public utilities lies in their nature as monopolies. And regardless of any regulations, it would seem difficult to me to ever argue that the utility itself is not providing a valuable service.

    However, once the insurance aspect of insurance provision is eliminated (which, if everyone must be covered at the same price and “coverage” is dominated by non-insurable expenses, is what will effectively have happened), there is no reason to maintain insurance companies, other than, perhaps, as cover for the pretense of a private market.

    Like

    • Thanks, Scott. Well reasoned, I think. I quibble on two points.

      The proposed ACA did not fix one rate for health insurance but allowed multiple rates that were age related, and I think a distinction on smoking [NoVAH?].

      Health care insurance on a state-by-state basis is effectively a monopoly seller, or at best an oligopoly one. It is that fact that makes it ripe for regulation, IMO.

      Like

  74. Mark:

    The proposed ACA did not fix one rate for health insurance but allowed multiple rates that were age related, and I think a distinction on smoking [NoVAH?].

    True enough. We haven’t yet reached the end game. But forcing insurers to “insure” people with pre-existing conditions at rates unrelated to their risk factor (100%) shows where we are headed, and the rest is just cosmetics.

    Health care insurance on a state-by-state basis is effectively a monopoly seller, or at best an oligopoly one. It is that fact that makes it ripe for regulation, IMO.

    Making insurance portable between states and thus increasing competition is a much more defensible use of the commerce clause power than forcing individuals to buy insurance, I think.

    Like

    • Health plans will be allowed to adjust premiums only for the following factors:
      Self-only or family enrollment;
      Geographic area;
      Age (except the rate cannot vary by more than 3 to 1 for adults); and
      Tobacco use (except the rate cannot vary by more than 1.5 to 1)

      PPACA Sec. 2701

      Like

      • nova:

        Tobacco use (except the rate cannot vary by more than 1.5 to 1)

        What possible justification could there be for allowing variation for tobacco use but no other activity? Has anyone ever forwarded an argument that distinguishes tobacco use from all other risk factors?

        Like

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