Tag: Individual Mandate

Jul 01

ACA: The Good, the Bad & the Truly Ugly

Cross posted st The Stars Hollow Gazette

First, this morning House Majority Leader Eric Cantor (R-VA) made the rounds of talk shows spouting how the Affordable Health Care bill can be repealed with a simple majority in the House and Senate since the bill was passed under reconciliation. Without a filibuster proof majority in the Senate, Ryan Lizza at The New Yorker points out the obstacles for that to happen:

Many Republicans, especially in the blog and talk-radio swamps, would cry, “Use reconciliation!” Readers familiar with the congressional debates of 2009-2010 will remember that this procedure allows certain budgetary measures to pass through the Senate with a simple majority. [..]

But reconciliation wouldn’t work here-the process can only be used for policies that have budgetary effects and a C.B.O. score. Much of the A.C.A., such as the insurance exchanges and subsidies, would fall under these categories. But a lot of it, including the hated individual mandate, does not. Repealing the exchanges and subsides without repealing the mandate and the other regulations and cost controls in the law would create a health-care Frankenstein that a President Romney would be rather nuts to support.

That said, the SCOTUS ruling has some rather complex ramifications and Chief Justice Robert’s ruling was rather sly. First was there are the three bit from SCOTUSblog that Lambert Strether pointed out at Corrente:

First, here’s the reasoning:

   Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

Second, here are the implications for the role of the State as we have understood it from the New Deal onward; what Phillip Bobbitt would call a change a Constitutional Order:

   The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws.

Third, here is the new Constitutional Order:

   Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Chancy or not — and it will be the precariat that suffers mischance, and not the elite, in any case — that’s what they’re going to do.

Next from Scarecrow at FDL News Desk who argues that Chief Justice Robert’s “incoherent decision” will “shackle congress” and “screw millions of uninsured:

In the process, he did violence to constitutional law and logic.  Consider, for example, Robert’s logic on the “mandate.”  In saving the “mandate,” Roberts essentially defined it as not a mandate.  You are not really required to purchase insurance, he noted; instead, you may choose not to purchase insurance and instead pay a minor tax.  As we know, taxing is just a way to collect revenues, a contribution to the common, aggregate costs of public programs.  In this case, the program is paying for many people’s health care through a system of risk/cost sharing.

But if the so-called mandate is not really a mandate but rather an option that can be avoided by paying a tax, and if a legitimate purpose of this tax, as government and amicus briefs argued, is to help cover aggregate costs across a pool of many insured and uninsured people, then what does that do to Robert’s argument about the Commerce Clause?  When arguing about the Commerce Clause, Roberts insists it’s a requirement to purchase a “product,” which forces you to take an action, and thus to engage in commerce when you would not otherwise have done that.  Regulating “inaction” is not permissible, Roberts argues.

But if, as Roberts concludes, the “mandate” is not a mandate, and the tax’s purpose is to help cover pooled costs, and not to buy a “product,” then there is no “mandate” to purchase a “product.”  So no one is forced to engage in commerce as Roberts framed it.  Indeed the “commerce” is already there in the risk sharing system across millions of people, all engaged in commerce by paying premiums into a pooled risk scheme.  Robert’s entire premise for striking down the Commerce Clause rationale is thus contradicted by his argument about how it’s permissible for Congress to enact a tax to support funding of collective health care costs.  That’s what the tax does; but it’s also what paying insurance premiums does.

Roberts’ reasoning on Medicaid is equally illogical. His premise is that Congress cannot expand an existing program administered by states that depends on shared state/federal funding by conditioning funding for the whole program on the states actually implementing the expansion.  As Brad DeLong observes, if Congress were just now creating a fully expanded Medicaid, to be implemented by states but mostly paid for by the feds, there would be no question that Congress could condition federal funding on the states actually carrying out the programs.  But if the program already exists for half the needy population, Congress cannot complete the program for the other half and use the same leverage to achieve the same degree of state cooperation.

As per the CBO, if the states actually implement the expansion and make an effort to get those eligible to sign up, 16 to 17 million more people will have health care coverage. But without that leverage to get the states to accept Medicaid expansion it leaves the poor between around 50% and 133% of the poverty line in a real no man’s land, because they would both be ineligible for Medicaid AND the coverage subsidies in the exchanges.

As for the states voluntarily opting in for the Medicaid expansion, David Dayen doesn’t think that will happen either, even though the cost for the states would only be responsible for less than 10% of the costs.

And being on the hook for even a small amount of funds isn’t going to make any of these governors happy. Heck, here’s a Democrat, former West Virginia Governor and current Senator Joe Manchin, making the argument for them:

   We should all recognize that the health care challenges that many West Virginians and Americans face are not going to go away unless Congress takes additional action to repair this bill. Now that the Court has ruled, we can move forward with fixing what is wrong with this bill and saving what is right. I have always been determined to reduce the burden on states from the Medicaid expansion, and this ruling affirms my position – and makes clear that states must have the flexibility to live within their means by determining Medicaid eligibility as each state sees fit. I have always said one size doesn’t fit all.

That’s going to be a compelling set of logic for a non-trivial number of governors. They’ll also distort how much the expansion would put their states “on the hook.” 26 states sued to eliminate the Affordable Care Act entirely, and they almost got there. Why wouldn’t they jump at the chance to eliminate the portion that creates half of the coverage benefits?

This isn’t going to be universal. New Mexico’s Republican Governor Susanna Martinez, for example, certainly sounds like she’ll take the money. But Southern states in particular, who paradoxically house the citizens most in need of the Medicaid expansion coverage, will be likely resisters at the outset. And it’s not like a lot of success in modern America comes from rallying at the grassroots level for poor and disenfranchised people.

As was noted by Ezra Klein of the Washington Post, opponents of the ACA see this as a win:

“We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”

Yes, it’s weird but so was the whole ACA bill from the very start.

Mar 30

ACA: Can You Sever The Head Without Killing The Patient

Cross posted from The Stars Hollow Gazette

Today the Supreme Court heard arguments about the severability of the individual mandate in the Affordable Health Care bill  and the expansion of Medicaid.

The day after the Supreme Court suggested that President Obama’s health care law might be in danger of being held unconstitutional, the justices on Wednesday turned their attention to the practical consequences and political realities of such a ruling.

The justices seemed divided on both questions before them: What should happen to the rest of the law if the court strikes down its core provision? And was the law’s expansion of the Medicaid program constitutional?

The two arguments, over almost three hours, were by turns grave and giddy. They were also relentlessly pragmatic. The justices considered what sort of tasks it makes sense to assign to Congress, what kinds of interaction between federal and state officials are permissible and even the political character of the lawsuits challenging the law. One justice dipped into Senate vote counting.

The court had in other words, on the third and final day of a historic set of arguments, moved from the high theory of constitutional interpretation to the real-world consequences of what various rulings would entail.

The arguments on severability, which hinged totally on whether the mandated stays or goes, boiled down to three points:

1. sever only the mandate, allow the rest of the law to stand and let Congress sort it out;

2. sever the mandate along with insurance regulations like guaranteed issue and community rating, to prevent what the government argues would be an insurance death spiral;

3. or throw out the whole law, which did not include a standard severability clause.

The Justices seemed divided over point #2 and #3 rather than #1. For the most part, the discussions and comments were reflective of the consequences of overturning the entire law or any part of it:

[..] A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia – first, that it “can’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.”  [..]

Justice Anthony Kennedy, who is considered the swing vote on the individual mandate, expressed concern “possible unintended consequences in the form of huge costs to insurance companies if the mandate – which would bring millions of healthy young people into the healthcare system and spread out costs – was invalidated alone”:

“We would be exercising the judicial power if one … provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” Kennedy said. “By reason of this court, we would have a new regime that Congress did not provide for, did not consider.”

The four liberal justices expressed deep reservations about tossing out the sweeping law that has hundreds of other provisions, some of them already in effect.

Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?”

Justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. “Why make Congress redo those?”

On the matter of Medicaid expansion a majority of the justices were inclined to support the government’s role in prodding states to expand the state-federal Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans:

The court’s more liberal justices all expressed puzzlement about why there should be a problem with the expansion in light of the fact that it is almost entirely to be paid for by the federal government. The states say they are being coerced into participating because a decision not to may cause them to lose not only the new money but also existing funds.

Justice Elena Kagan described a hypothetical program only slightly different from the real one. “It’s just a boatload of federal money for you to take and spend on poor people’s health care,” she said to a lawyer for the states, Paul D. Clement. “It doesn’t sound coercive to me, I have to tell you.” [..]

He (Chief Justice John G. Roberts Jr) said the court’s decision on the Medicaid expansion should be informed by the reality that the states have “since the New Deal” cheerfully accepted federal money.

“It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done,” the chief justice said.

Justice (Antonin) Scalia addressed the political realities of the litigation itself, asking Mr. Clement whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?”

Mr. Clement responded, “There’s a correlation, Justice Scalia.”

In her last article on Wednesday’s sessions, Slate‘s Dahlia Litwick gives her assessment of the last three days:

Amid all the three-day psychodrama, it’s easy to get confused about what’s happened and what hasn’t. Court watchers seem to generally agree that the individual mandate is in real peril and will rise or fall with Chief Justice Roberts and Justice Kennedy. Court watchers also agree that 19th-century tax law-while generally adorable-will not prevent the justices from deciding the case by July. And they also agree that they may have counted five justices who appear willing to take the whole law down, along with the mandate, and the Medicaid expansion as well.

But the longer they talked, the harder it was to say. A lot of today’s discussion started to sound like justices just free-associating about things in the law they didn’t like. That doesn’t reveal all that much about the interplay between the four separate challenges-what happens when they all have to be looked at together-or anything at all about what will happen at conference or in the drafting of opinions. Could the five conservative justices strike down the entire health care law, and take us into what Kagan described this morning as a “revolution”? They could. Will they? I honestly have no idea anymore. As silent retreats go, this one was a lot less enlightening than I’d hoped.

Constitutional law professor Jonathan Turley discussed the hearings with Keith Olbermann on Countdown, calling this case a “game of chicken” that “can be deadly.”

Jan 06

Healthcare: A Blast From the Past

December 7, 1964  from a newspaper in the national archives

Says Medicare Bill Will Be Passed

Newark – Speaking at a meeting of the New Jersey Association of Health Underwriters at the Military Park Hotel here Friday, Joseph J. Sear, president and chairman of the board of the Progressive Life Insurance Company of Red Bank, said the outcome of the recent election makes it virtually certain that the 89th Congress, meeting in January, will pass a Medicare bill, and that it will be signed by the President.

“We, in the accident and health insurance business,” he said, “should have no fears that the passage of such a bill will hurt our business unless it becomes the opening wedge for a socialized medicine program such as in Great Britain, which includes everyone from cradle to the grave. The bill before Congress is generally restricted to providing medical aid for persons 65 years of age and older under the Social Security Program, and we are still insuring primarily persons below the age of 65.

“Since I last spoke to you 13 years ago, (note: 1951) the people cared for by hospital expense policies increased from $85 million to $145 million and the people cared for by medical expense policies increased from $28 million to $102 million, and the trend is still upward.”

Forty Six Years Later

March 23, 2010. Patient Protection and Affordable Care Act (PPACA), aka Dole/Nixon/RomneyObamaCare, signed into law by “Democratic” President.   2009 Bill passed by Senate still lacks universal coverage and the option of purchasing government insurance, but contains universally loathed tax mandate and excise tax pushed by “Democratic” Senator from Massachusetts and WH “Economist” consultant from MIT.  Bill not designed to add more Medicaid coverage until 2014.   http://en.wikipedia.org/wiki/P…

September 17, 2010. Number of uninsured Americans now rises to 50.7 million, or 1 out of 6, or 16%.   Workers now paying 47% more for family health insurance coverage than in 2005, while employers pay 20% more.

http://www.usatoday.com/news/n…

January 3, 2011 New Republican Majority leader Eric Cantor introduces bill to rules committee called “Repealing the Job Killing Health Care Law Act”   “Effective as of the enactment of Public Law 111- 148, such act is repealed, and the provisions of law amended or repealed by such Act are restored or revived as if such act had not been enacted.”

pdf download text here: http://rules-republicans.house…

January 4, 2011  from Kaiser Health News-

House Republicans have scheduled a Jan. 12 vote to repeal the health care law. While the measure is expected to pass the House, Democrats in the Senate have pledged to stop the bill.

http://www.kaiserhealthnews.or…

January 5, 2011 Shuffle the Deck Chairs on the Titanic


The Office of Consumer Information and Insurance Oversight, created just after the law passed, is about to be folded into the federal Medicare agency, signaling a major organizational shift just months after the office was created, administration officials said.

In addition, Michael Hash, who has been serving as a top White House health adviser, has taken the reins of the Office of Health Reform at the Department of Health and Human Services. Hash succeeds Jeanne Lambrew,  who has been director of the office since May 2009 and has played a central role on the health law. Lambrew, a former aide to President Bill Clinton, will stay on at HHS as an adviser to Secretary Kathleen Sebelius.

The insurance oversight office was headed by Jay Angoff, who battled with insurance companies both as a Missouri official and a class-action litigator. He’ll become a senior adviser to Sebelius.

The office will become part of the Centers for Medicare and Medicaid Services, and will be managed by Marilyn Tavenner, deputy administrator of CMS.

http://www.kaiserhealthnews.or…

January 5, 2011.   Blue Shield of CA seeks rate increases of up to 59% for customers by March 1st. They blame costs of hospitals

http://www.latimes.com/health/…

Hospitals treat the un insured when their health descends into the most expensive crisis mode,  and pass the markup, make it up prices along to the insured, while charging the uninsured the highest rates, so they can still have their debts “sold.”

And nothing has changed the basic dynamic of leaving a portion of the population uncovered to act as a price lever on the rest.

Nothing.

A million and a half people filed for bankruptcy last year.  The leading cause is uncontrolled medical debt.

Blue Shield spent $16 million on federal lobbyists in 2010.  The top recipient was “Democrat” There Will Be No Public Option Blanche, the former Sen. Lincoln of Arkansas.  Eric Cantor got $22,500.

http://www.opensecrets.org/org…

They have a PAC, too, for their executives to use.

http://www.campaignmoney.com/p…

There’s more – each of those executives will be making other, individual donations.

But in CA, the real action is at the state level.  How they loved Schwarzenegger, the ex governator.  And the Republicans. And the Democrats.  Last year’s money bomb:

http://cal-access.ss.ca.gov/Ca…

http://cal-access.ss.ca.gov/Ca…

most complete list of donations in 2009 – 2010 election cycle:

http://cal-access.ss.ca.gov/Ca…

Poor Jerry Brown only got $2,500 out of all of that ?  

 

Jan 24

Earth to Dems: It’s the Mandate Stupid.

Beltway smartguy Nate Silver has posted a chart of results from the latest Kaiser Health tracking poll (PDF).

Nate uses this chart to argue that the lack of support for HCR is due to people not knowing how great it really is.

What we see is that most individual components of the bill are popular — in some cases, quite popular. But awareness lags behind. Only 61 percent are aware that the bill bans denials of coverage for pre-existing conditions. Only 42 percent know that it bans lifetime coverage limits. Only 58 percent are aware that it set up insurance exchanges. Just 44 percent know that it closes the Medicare donut hole — and so on and so forth.

Nate says that the Dems should pass HCR, teabaggers be damned, because once passed, the program’s benefits will become apparent.

Obviously, it’s not as though this is going to do much to help the bill’s popularity in the immediate term. But in the long term, once people actually see the go bill into effect, their perceptions are liable to improve, in ways that might help the Democratic party. Although there are a few things like the individual mandate which the public obviously does not like, most of the other components of the bill are things they are liable to be quite pleased with and to find quite reasonable.

Now, everybody knows Nate’s a smart guy, so one would think he would apply his vaunted statistical sense to make the obvious case that HCR stands a far better chance of being a popular program if the individual mandate is jettisoned.

After all, under Nate’s logic, if the individual mandate is already at minus 40% net favorability  (62% against: 22% for), just wait until the bill passes and everyone not only knows about it, but is forced, under pain of IRS audit, to buy overpriced, underperforming, for-profit health insurance.

But Nate won’t go that far.  Instead of advising Dems to fold on the mandate, he’d rather them take a blind gamble that the popularity of the benefits of HCR will outweigh the unpopularity of the individual mandate – and thus essentially repeat a strategy that has already contributed to the loss of Ted Kennedy’s old Senate seat to a teabagger.

Truly, the establishment Dems’ studied denial of the individual mandate’s political liabilities, even by its most respected analysts, borders on the absurd.



(x-post @ Big O)

Dec 18

Hoist Them on their own Petard: Trigger the Mandate

We kept hearing about Triggers and State Opt-Ins and State Opt-Outs … for the Public Option. Its time to move an amendment to the Individual Mandate that triggers it, with an Opt-Out. Note that these can be split into two Amendments, as the Opt-Out works with or without the Trigger.

(1) The Individual Mandate is triggered when everyone subject to the Mandate in a state has available to them insurance from a not-for-profit entity, and excluding all entities owned by for-profit entities, at a premium after any public subsidy of less than 5% of their annual income.

(2) Before the Individual Mandate can come into force in any state, a measure approving the individual mandate must be placed on the ballot in the next Federal general election, and the mandate must obtain a simple majority of votes cast.