Affordable Care Act (ACA) - Obamacare

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

NYTimes: Challenge Of Healthcare Law Dealt "Well-Deserved Setback."

The New York Times (10/13, A24) editorializes, "The first federal court decision on the constitutionality of the new health care reform law upheld its validity and dealt a well-deserved setback to opponents who are trying to overturn it. We can only hope that judges presiding over 15 or more other legal challenges follow the lead of this first major ruling." The Times says, "We think Judge Steeh, appointed by President Bill Clinton, got the main points right, but more conservative judges hearing cases in the South may disagree," so "this fight seems destined to reach the Supreme Court, whose leanings are difficult to predict."


EDITORIAL: First-Round Victory on Health Reform
The New York Times > Log In

October 12, 2010

The first federal court decision on the constitutionality of the new health care reform law upheld its validity and dealt a well-deserved setback to opponents who are trying to overturn it. We can only hope that judges presiding over 15 or more other legal challenges follow the lead of this first major ruling.

The core issue is whether Congress has the power to require virtually everyone to carry health insurance starting in 2014 or pay a penalty. A conservative law firm based in Michigan filed suit, contending that Congress could not use its powers to regulate interstate commerce to require people to buy commercial health insurance. It argued that such people are not engaging in any activity that affects interstate commerce but are choosing not to engage in such activity.

Judge George Steeh of the Federal District Court in Detroit came down squarely on the side of the Obama administration. He ruled that a failure to buy health insurance was not “inactivity,” as the plaintiffs contended, but rather an economic decision to try to pay for health services later, out of pocket, rather than now, through the purchase of insurance.

In the aggregate, he ruled, such refusals to buy insurance would have an effect on interstate commerce. When uninsured people find themselves unable to pay steep medical bills, their costs are shifted to hospitals, doctors, taxpayers and people who are covered by insurance. The judge also found that the mandate to carry insurance was “an essential element” of health care reforms that will regulate a broad interstate market in health care services.

We think Judge Steeh, appointed by President Bill Clinton, got the main points right, but more conservative judges hearing cases in the South may disagree. This fight seems destined to reach the Supreme Court, whose leanings are difficult to predict.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

NYTimes: Challenge Of Healthcare Law Dealt "Well-Deserved Setback."

The New York Times (10/13, A24) editorializes, "The first federal court decision on the constitutionality of the new health care reform law upheld its validity and dealt a well-deserved setback to opponents who are trying to overturn it. We can only hope that judges presiding over 15 or more other legal challenges follow the lead of this first major ruling." The Times says, "We think Judge Steeh, appointed by President Bill Clinton, got the main points right, but more conservative judges hearing cases in the South may disagree," so "this fight seems destined to reach the Supreme Court, whose leanings are difficult to predict."


EDITORIAL: First-Round Victory on Health Reform
The New York Times > Log In

October 12, 2010

The first federal court decision on the constitutionality of the new health care reform law upheld its validity and dealt a well-deserved setback to opponents who are trying to overturn it. We can only hope that judges presiding over 15 or more other legal challenges follow the lead of this first major ruling.

The core issue is whether Congress has the power to require virtually everyone to carry health insurance starting in 2014 or pay a penalty. A conservative law firm based in Michigan filed suit, contending that Congress could not use its powers to regulate interstate commerce to require people to buy commercial health insurance. It argued that such people are not engaging in any activity that affects interstate commerce but are choosing not to engage in such activity.

Judge George Steeh of the Federal District Court in Detroit came down squarely on the side of the Obama administration. He ruled that a failure to buy health insurance was not “inactivity,” as the plaintiffs contended, but rather an economic decision to try to pay for health services later, out of pocket, rather than now, through the purchase of insurance.

In the aggregate, he ruled, such refusals to buy insurance would have an effect on interstate commerce. When uninsured people find themselves unable to pay steep medical bills, their costs are shifted to hospitals, doctors, taxpayers and people who are covered by insurance. The judge also found that the mandate to carry insurance was “an essential element” of health care reforms that will regulate a broad interstate market in health care services.

We think Judge Steeh, appointed by President Bill Clinton, got the main points right, but more conservative judges hearing cases in the South may disagree. This fight seems destined to reach the Supreme Court, whose leanings are difficult to predict.

The fact this is a Clinton appointee should raise a flag. The other flag is the breaking story comes from the NYT. The third requires a quick Google search I will leave to the reader. How many times has this judge been overturned? The NTY title alone indicates a strong slant towards propaganda and none of this addresses the OK and AZ, and soon to be other states including TX, vote on a state amendment to their constitution to label ObamaCare as unconstitutional and unenforceable within their boundaries up to and including Sheriff's arresting federal agents who intrude on state's rights. And of course the issue of de-facto repeal by defunding key aspects of this very unconstitutional extension of Congressional power. If Congress can do this, it now has the right to tell you to lose 50lbs or buy a new vehicle to stimulate the economy. The GWC, CC. and SC were never meant to give Congress that kind of power. This judge has a record of being ignored by the majority of other judges and overturned. The word idiot comes to mind, but that is probably too harsh. Ideological hack is a better term. ObamaCare is gone - it is just a matter of time. Every SINGLE doctor I see is no longer taking new Medicare patients. Two of them are retiring - because of ObambiCare. It won't take long for the fence sitters to figure out this was one very monumental mistake. When the speaker of the House has to state we need to pass the bill to find out what's in it, you know the proverbial sh*t has just hit the fan.

For a more balanced description of the case and the abuse of the ruling judge of GWC see: Michigan District Court Expands Commerce Clause to Regulate Your Decisions | Before It's News

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Well this really puts things in perspective: http://www.cato-at-liberty.org/michigan-court-wrong-on-obamacare-even-exceeds-its-own-powers/:

The passage of Obamacare heralded an important discussion on whether the Constitution places any effective limits on federal power and, in particular, where Congress gets the constitutional warrant to require every person to enter the private marketplace and buy a particular good or service. This is a healthy discussion to have, including in the courts.

Today’s ruling in Michigan, dismissing the Thomas More Law Center’s challenge to the individual mandate, while disappointing to those of us who believe that the government lacks the power to commandeer people to engage in transactions — “economic mandates,” as it were — is but one of many legal decisions we can expect on the way to the Supreme Court’s ultimate resolution of this important issue. Indeed, this summer we saw a ruling by a federal judge in Virginia allowing that state’s legal challenge to the individual mandate and other aspects of the health care legislation to proceed. And last month, a federal judge in Florida heard arguments in a similar lawsuit brought by 20 other states — a decision on which we can expect later this fall. Other serious cases continue in Arizona, Missouri, Ohio, the District of Columbia, and elsewhere.

Perhaps most notable about the Michigan opinion, however, is the scant space spent on the serious Commerce Clause arguments on which hundreds of pages have been filed in these cases by top lawyers, legal experts, and academics (including Cato – yes, I’m heavily vested in this litigation). After granting that the plaintiffs had standing and that the case was ripe for adjudication, and rejecting the government’s odd Anti-Injunction Act defense, Judge Steeh takes only seven and a half pages to reject the plaintiffs’ arguments — half of which is spent reciting existing doctrine. It is as if the court merely issued a “placeholder” opinion, pending a “real” resolution on appeal.

And the novel conclusion we gain from this curt disposition is that Congress can now regulate people’s “economic decisions,” as well as do anything that is part of a “broader regulatory scheme.” If the Supreme Court eventually upholds the kind of reasoning Judge Steeh used here, nobody would ever be able to claim plausibly that the Constitution limits federal power. Finding the individual mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity — requiring an individual to engage in economic activity.

The federal government would then have wide authority to require Americans engage in activities of its choosing, from eating spinach and joining gyms (in the health care realm) to buying GM cars. Or, under Judge Steeh’s “economic decisions” theory, Congress could tell people what to study in school or what job to take. That may be the unfortunate state of the law in a few years — once the Supreme Court has weighed in, and I doubt it would ever go so far in any event — but it is not up to district courts to extend constitutional doctrine on their own.

By my estimation, this is the ONLY judge to grant the mandate a victory. One judge does not a majority make. The victories for allowing the challenge to proceed are the real story here.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Challenge to Health Care Law to Advance
http://www.nytimes.com/2010/10/15/health/policy/15health.html

October 14, 2010
By KEVIN SACK

In a foreboding ruling for the Obama administration, a federal judge in Florida decreed Thursday that a legal challenge to the new health care law by officials from 20 states could move forward and warned that he would have to be persuaded that its keystone provision — a requirement that most Americans obtain insurance — is constitutional. [For decision go to link: http://plf.typepad.com/Florida%20Order.pdf or download attachment.]

“At this stage in the litigation, this is not even a close call,” wrote Judge Roger Vinson of Federal District Court in Pensacola, Fla., before asserting that the insurance mandate was an unprecedented exercise of Congressional authority.

“Of course, to say that something is ‘novel’ and ‘unprecedented’ does not necessarily mean that it is ‘unconstitutional’ and ‘improper,’ ” Judge Vinson continued. “There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim.”

Judge Vinson, a senior judge who was nominated by President Ronald Reagan, indicated during a hearing last month that he would let the case proceed. In Thursday’s opinion, he formally rejected the federal government’s motion to dismiss the lawsuit. It now proceeds to a full hearing on the constitutional issues on Dec. 16.

The Florida case is one of more than 15 legal challenges to the health care law that are aiming for an ultimate hearing before the United States Supreme Court. Last week, a federal judge in Michigan became the first to rule on the merits, deciding that the insurance requirement was constitutional.

Both sides clearly hope to carry the momentum of lower court victories to the appellate level. But it is entirely possible, and perhaps probable, that the appellate courts will wind up contemplating conflicting opinions from below.

Florida’s attorney general, Bill McCollum, filed the Pensacola lawsuit minutes after President Obama signed the health care law in March, and the plaintiffs have grown to include 20 attorneys general or governors, all but one of them Republican. They also include two individuals and the National Federation of Independent Business, which represents small companies.

Judge Vinson used his 65-page opinion to telegraph his leanings on a number of the questions he now must consider more fully.

He sympathized with the plaintiffs’ argument that the insurance requirement, which starts in 2014, seemed an effort to regulate “inactivity,” and thus was beyond the Supreme Court’s interpretation of the Commerce Clause of the Constitution. The court has ruled that the government can regulate “activities that substantially affect interstate commerce.”

The case is proceeding on a parallel track, but slightly behind, a similar case filed in federal court in Richmond by Virginia’s attorney general. The judge in that case plans to hear oral arguments on Monday. He already has offered his opinion that the law “extends Commerce Clause powers beyond its current high watermark.”

Justice Department lawyers have argued that decisions to forgo coverage are active choices that have significant commercial consequences because the uninsured often cannot afford the medical care they inevitably need. That shifts costs to hospitals, taxpayers and the privately insured.

Judge Vinson disagreed. “It is not based on an activity that they make the choice to undertake,” he wrote. “It is based solely on citizenship and on being alive.”

The judge also used strong language to reject the government’s courtroom characterization of the penalty imposed on the uninsured as a tax. Government lawyers have argued it is a tax because Congress is given broad authority under the Constitution to levy taxes.

But the judge took pains to note that Congress referred to the fines in the legislation as a penalty, and that Mr. Obama vehemently denied it was a tax increase.

Calling it an “Alice-in-Wonderland tack,” Judge Vinson wrote that Congress had tried to reap a political advantage during the debate by denying it was imposing a tax, and then sought a legal advantage in court by insisting it had done so.

The judge also said he would hear further argument on the plaintiffs’ assertion that the law’s vast expansion of Medicaid, a shared state and federal program, amounts to an unconstitutional commandeering of state tax dollars. But because states can at least theoretically withdraw from the program, Judge Vinson wrote that the law currently “provides very little support” for the argument.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Challenge to Health Care Law to Advance
http://www.nytimes.com/2010/10/15/health/policy/15health.html

October 14, 2010
By KEVIN SACK

In a foreboding ruling for the Obama administration, a federal judge in Florida decreed Thursday that a legal challenge to the new health care law by officials from 20 states could move forward and warned that he would have to be persuaded that its keystone provision — a requirement that most Americans obtain insurance — is constitutional.

“At this stage in the litigation, this is not even a close call,” wrote Judge Roger Vinson of Federal District Court in Pensacola, Fla., before asserting that the insurance mandate was an unprecedented exercise of Congressional authority.

“Of course, to say that something is ‘novel’ and ‘unprecedented’ does not necessarily mean that it is ‘unconstitutional’ and ‘improper,’ ” Judge Vinson continued. “There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim.”

Judge Vinson, a senior judge who was nominated by President Ronald Reagan, indicated during a hearing last month that he would let the case proceed. In Thursday’s opinion, he formally rejected the federal government’s motion to dismiss the lawsuit. It now proceeds to a full hearing on the constitutional issues on Dec. 16.

The Florida case is one of more than 15 legal challenges to the health care law that are aiming for an ultimate hearing before the United States Supreme Court. Last week, a federal judge in Michigan became the first to rule on the merits, deciding that the insurance requirement was constitutional.

Both sides clearly hope to carry the momentum of lower court victories to the appellate level. But it is entirely possible, and perhaps probable, that the appellate courts will wind up contemplating conflicting opinions from below.

Florida’s attorney general, Bill McCollum, filed the Pensacola lawsuit minutes after President Obama signed the health care law in March, and the plaintiffs have grown to include 20 attorneys general or governors, all but one of them Republican. They also include two individuals and the National Federation of Independent Business, which represents small companies.

Judge Vinson used his 65-page opinion to telegraph his leanings on a number of the questions he now must consider more fully.

He sympathized with the plaintiffs’ argument that the insurance requirement, which starts in 2014, seemed an effort to regulate “inactivity,” and thus was beyond the Supreme Court’s interpretation of the Commerce Clause of the Constitution. The court has ruled that the government can regulate “activities that substantially affect interstate commerce.”

The case is proceeding on a parallel track, but slightly behind, a similar case filed in federal court in Richmond by Virginia’s attorney general. The judge in that case plans to hear oral arguments on Monday. He already has offered his opinion that the law “extends Commerce Clause powers beyond its current high watermark.”

Justice Department lawyers have argued that decisions to forgo coverage are active choices that have significant commercial consequences because the uninsured often cannot afford the medical care they inevitably need. That shifts costs to hospitals, taxpayers and the privately insured.

Judge Vinson disagreed. “It is not based on an activity that they make the choice to undertake,” he wrote. “It is based solely on citizenship and on being alive.”

The judge also used strong language to reject the government’s courtroom characterization of the penalty imposed on the uninsured as a tax. Government lawyers have argued it is a tax because Congress is given broad authority under the Constitution to levy taxes.

But the judge took pains to note that Congress referred to the fines in the legislation as a penalty, and that Mr. Obama vehemently denied it was a tax increase.

Calling it an “Alice-in-Wonderland tack,” Judge Vinson wrote that Congress had tried to reap a political advantage during the debate by denying it was imposing a tax, and then sought a legal advantage in court by insisting it had done so.

The judge also said he would hear further argument on the plaintiffs’ assertion that the law’s vast expansion of Medicaid, a shared state and federal program, amounts to an unconstitutional commandeering of state tax dollars. But because states can at least theoretically withdraw from the program, Judge Vinson wrote that the law currently “provides very little support” for the argument.

Besides the outright defunding of ObamaCare, there are now two novel approaches being considered to kill this thing in addition to the defunding.

http://online.wsj.com/article/SB10001424052748704116004575521770685906984.html:

The Republican rallying cry during this election season has been a promise to "repeal and replace" ObamaCare. The problem is that through at least 2012 President Obama would veto any law repealing his signature health-care legislation. What, then, can Republicans do in the next two years? Look to the states.

After November, more than 30 Republican governors (many newly elected) will have the opportunity to resist the legislation at the state level. They could refuse to implement the health-care exchanges that are the core of ObamaCare. Doing so would force the federal government to step in and run the exchanges for the states—a chore that would slow down federal implementation of ObamaCare but fail to provide any alternative solution to insurance coverage problems.

The more promising option is for governors to perform as much radical surgery as possible on the exchanges until a new Congress working with a different president can do something better. By offering their own market-friendly versions of exchanges, they will establish an alternative to ObamaCare and its one-size-fits-all health plans.

The feds may declare that these exchanges do not comply with federal rules and are not eligible for new federal subsidies beginning in 2014. But the Obama administration will be hard-pressed to find the resources to establish and run its own federal exchanges in time if enough states resist its dictates and appeal to their citizens with a better offer.

ObamaCare intends health-care exchanges to be a regulatory dragnet to trap insurers into offering a single government-prescribed set of health benefits. State-designed exchanges could, and should, do the opposite.

Any willing insurers already licensed to operate in a state should be able to offer plans. Their operating rules would focus on providing better information to consumers, rather than limiting the types of plans available. Exchanges should also enable easier allocation of private payments and public subsidies, simplify enrollment, and reduce transaction costs.

Once inside the exchange, consumers would be guaranteed the ability to renew their coverage without regard to changes in their health status, so long as they remain continuously insured. If individuals want to switch plans, they couldn't be hit with higher costs due to changes in health status as long as they stay within some baseline range of benefits that was largely equivalent to their previous plan. And a new Congress should make sure that consumers shopping in these market-based exchanges get the same tax advantages that employers do, eliminating the bias that now forces people to get coverage from their bosses.

Under this arrangement, there wouldn't be the incentive for gaming the system that exists under ObamaCare, which encourages forgoing coverage until one gets sick, or buying cheap policies and upgrading only after an illness strikes.

Of course, not everyone will be able to afford to purchase insurance in these exchanges. Poor people and those with major medical problems or chronic conditions that make them largely uninsurable would certainly need to be subsidized. But today we already subsidize many of these people through a patchwork of programs.

Taxpayers can provide targeted subsidies through expanded high-risk pools to cap out-of-pocket, risk-based premium costs for the most vulnerable. In the longer term, states could get waivers to "monetize" Medicaid medical benefits and allow these recipients to shop in the same exchanges. Recipients might well prefer a voucher option to Medicaid coverage that pays most providers half as much as private insurance and fails to deliver many of the benefits it promises. Subsidies should flow directly to consumers, rather than to the health plans as ObamaCare required.

The elements of these market-based exchanges are already buried deep inside ObamaCare. But they remain under a lethal dose of regulation that rules out every choice but those made by the bureaucrats working inside the president's "Office of Health Reform."

ObamaCare was not about fixing the insurance market. It was about seizing control of it. Thus it shouldn't be surprising that a new analysis by the Congressional Research Service says that states can use ObamaCare to erect a de facto single-payer system by simply excluding from their exchanges every plan but a state-run "public" plan. "There is no specific language in [the president's health plan] that would prohibit an exchange from denying certification to every private plan that applies," the analysis finds.

California is already headed down this road. Voters have opted for a "selective contracting" scheme in which a five-member board of unaccountable appointees will tightly control which insurers operate in the California exchange.

But other states, particularly Utah, are moving in the opposite direction with their own version of market-based exchanges before ObamaCare's regulations can catch up. The Utah Health Exchange is an Internet-based information portal that connects consumers to the information they need to make informed choices. In many cases, it allows them to buy insurance electronically.

Several other states are interested in establishing similar plans and daring the Obama administration to stop them. Replacing the command-and-control features of ObamaCare with a plan offering consumers a real marketplace is a change many people can start to believe in. And one Mr. Obama would be imprudent to oppose.

Of even greater interest is a constitutional convention which has never been used to amend the constitution. Past worries about what is called a runaway convention - where states amend the hell of the document and basically create a monstrosity - are now no longer a great concern:

http://spectator.org/archives/2010/10/12/is-it-time-for-a-convention

In August, Missouri became the latest state to rebel against the new national health care law when 71 percent of voters supported a ballot initiative rejecting the legislation's requirement that individuals purchase government-approved insurance. Several other states will consider similar measures on the ballot this November.

However satisfying this backlash against ObamaCare may be to opponents of the law, these state-based efforts could all be for naught if the U.S. Supreme Court sides with Congress and rules that the legislation's individual mandate is constitutional.

Such a decision would have far-reaching consequences, giving broad new power to the federal government over individuals and states. It would mean that the interstate Commerce Clause would have been interpreted so broadly as to allow the federal government to regulate the activities of people who choose not to engage in commerce, and within a health insurance market where businesses aren't even allowed to sell their products across state lines. It would represent the culmination of decades in erosion of the concept of the separation of powers between federal and state governments, and the boldest example of congressional over-reach in the age of Obama.

In that scenario, short of repeal, the only remaining way to fight the law would be to amend the Constitution. Given how polarized the modern U.S. Senate is, it's highly unlikely that a proposed amendment would garner the necessary 67 votes needed to amend the Constitution in the traditional manner. Yet the Founding Fathers left the states one last check on federal power.

Under Article V of the Constitution, "Congress… on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which… shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States."

The Constitution has never been amended through a convention of the states, and this route remains controversial, with many conservatives fearing that the meeting would turn into a circus in the modern media age, and open the door to a wholesale rewriting of the nation's founding document. Yet a new body of research suggests that these fears are unwarranted, and that there are enough checks built into the system to prevent what scholars refer to as a "runaway convention." With state legislators and grassroots activists searching for ways to limit the abuses of Congress, the possibility has begun to generate more chatter.

"MY SENSE IN TALKING to state legislators and others is that there is growing interest in the idea," said Merrill Matthews, a scholar at the Institute for Policy Innovation. "About what it would take and what the Founders had to say. People are increasingly warming to the possibility."

One such legislator is James LeMunyon, a Republican member of the Virginia House of Delegates, who took to the pages of the Wall Street Journal this March to propose a convention as a means of reining in Washington. He has offered his own proposal in the Virginia legislature, pushing for a convention to amend the Constitution to give the president line-item veto power. Earlier this year, the Florida senate passed a measure calling for a convention to deal with the bloated federal budget.

"What we're really after, in the very broad sense, is to rebalance the relationship between federal and state governments," LeMunyon told TAS.

The prospect of a convention still has its many detractors.

"I think it's a terrible idea," Phyllis Schlafly told TAS. "Who are these people who think they could do a better job than George Washington and James Madison? We have a wonderful Constitution and we don't want to rewrite it or cause any discontent with the Constitution that we have."

Schlafly has long been one of the leading opponents of a convention, and has used her conservative activist group, Eagle Forum, to oppose it.

Michael Uhlmann, a political science professor at Claremont Graduate University, was also dismissive of the convention route.

"I don't take the idea seriously, and I don't think anybody else should," he said. "Unless you can figure out a way to reincarnate James Madison.Then I'll reconsider my position."

AT THE TIME of the founding, the ability of the states to call a convention to propose amendments was seen as a way to prevent the federal government from becoming too expansive. In essay No. 85 of the Federalist Papers, Alexander Hamilton cited the states' convention option in his response to critics who feared that Congress would never allow any amendments limiting its power. The Constitution orders that "The Congress shall call a convention" if two-thirds of states demand one, he pointed out, and thus whether to call a convention isn't up to the federal government. "We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority," he predicted.

Read the whole thing (there are two other pages). The check on federal powers could be pummeled into sand using this approach. The states could amend the constitution and overturn two centuries of Supreme Court abuse of the Commerce Clause, General Welfare Clause, and Supremacy Clause and add in a new amendment that would require a majority of attorney generals in the states to agree a law is constitutional or it would not be a law (this is an idea from the Tenth Amendment Center gaining a great deal of attention). The feds must be shaking in their shoes about now. Imagine losing all that ill-gained power and becoming nothing but a tool of the people? Oh wait, that is how the constitution was originally written - government derives its power from the people, not the other way around. Jefferson and the other founders were wiser than we think. As a country we are just beginning to understand these tools. If it happens, it will be historic in nature and truly, as the Chinese always wish, you will be living in interesting times.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Health care case denied; no grants (UPDATED)
Health care case denied; no grants (UPDATED) : SCOTUSblog

The Court refused to hear the first case to reach it seeking to challenge the new federal health care law — a plea to rule on the issue before any federal appeals court has done so. No noted dissent or recusal from the denial. No new cases were granted. (UPDATED)

The Supreme Court on Monday turned aside the first attempt to pursue in the Court a constitutional challenge to the new federal health care law. The initial test sought to draw the Justices into the nationwide controversy over the law, before any federal appeals court has ruled on it. The Court’s order denying review of Baldwin v. Sebelius (10-369) indicated there were no dissents and no recusals. That was at least a preliminary indication that, when the issue does reach the Court, Justice Elena Kagan, a former Obama Administration official, would take part. The Court granted no new cases.

In a summary decision, without noted dissent, the Court reminded lower federal courts that they may not rule in favor of a state prisoner’s habeas challenge unless they explicitly find a violation of federal law — either the Constitution or a federal statute. Ruling in an unsigned, seven-page opinion in Wilson v. Corcoran (10-91), the Court overturned a Seventh Circuit Court ruling that appeared to have been based on a flaw under Indiana state law in the death sentence of an Ohio inmate, Joseph Corcoran, for the murders of four men. While Corcoran’s lawyers had claimed that the state law violation also violated the federal Constitution, the Supreme Court said, the Circuit Court did not itself rule that way.

The Baldwin case on the new health legislation was an attempt to raise two questions: whether the new requirement that everyone have medical insurance by 2014 could be challenged now, and whether that insurance-purchase mandate was beyond Congress’s power under the Constitution. A federal judge in San Diego ruled that neither an individual nor an employer could show at this point that they would actually suffer any injury from the law, so they lacked “standing” to sue. District Judge Dana M. Sabraw dismissed the case.

Steve Baldwin, a former California state legislator and an advocate of limited government, and the Pacific Legal Institute challenged Judge Sabraw’s decision both in the Ninth Circuit (where the case remains pending) and in a petition to the Supreme Court, asking the Justices to rule without waiting for the Circuit Court. They argued that the Justices should step in now because federal District judges have reached conflicting rulings on whether lawsuits against the law are premature, or can go forward.

The Supreme Court’s reaction to the petition had been watched closely, not because it was likely to be granted (the Court seldom hears cases to rule on conflicting rulings in federal District Courts) but as an early indicator of whether Justice Kagan would participate. As the former U.S. Solicitor General, she has regularly taken herself out of cases on which she had played any role in that position. Her failure to step out of the Baldwin case seemed to indicate that she had had no part in the government’s defense of the new law in lower courts. (The Baldwin petition is discussed at length in this prior post. The Administration waived its right to respond to the petition, and the Court did not ask for a response — usually an indication that a case will be denied review.)

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Health care case denied; no grants (UPDATED)
Health care case denied; no grants (UPDATED) : SCOTUSblog

The Court refused to hear the first case to reach it seeking to challenge the new federal health care law — a plea to rule on the issue before any federal appeals court has done so. No noted dissent or recusal from the denial. No new cases were granted. (UPDATED)

The Supreme Court on Monday turned aside the first attempt to pursue in the Court a constitutional challenge to the new federal health care law. The initial test sought to draw the Justices into the nationwide controversy over the law, before any federal appeals court has ruled on it. The Court’s order denying review of Baldwin v. Sebelius (10-369) indicated there were no dissents and no recusals. That was at least a preliminary indication that, when the issue does reach the Court, Justice Elena Kagan, a former Obama Administration official, would take part. The Court granted no new cases.

In a summary decision, without noted dissent, the Court reminded lower federal courts that they may not rule in favor of a state prisoner’s habeas challenge unless they explicitly find a violation of federal law — either the Constitution or a federal statute. Ruling in an unsigned, seven-page opinion in Wilson v. Corcoran (10-91), the Court overturned a Seventh Circuit Court ruling that appeared to have been based on a flaw under Indiana state law in the death sentence of an Ohio inmate, Joseph Corcoran, for the murders of four men. While Corcoran’s lawyers had claimed that the state law violation also violated the federal Constitution, the Supreme Court said, the Circuit Court did not itself rule that way.

The Baldwin case on the new health legislation was an attempt to raise two questions: whether the new requirement that everyone have medical insurance by 2014 could be challenged now, and whether that insurance-purchase mandate was beyond Congress’s power under the Constitution. A federal judge in San Diego ruled that neither an individual nor an employer could show at this point that they would actually suffer any injury from the law, so they lacked “standing” to sue. District Judge Dana M. Sabraw dismissed the case.

Steve Baldwin, a former California state legislator and an advocate of limited government, and the Pacific Legal Institute challenged Judge Sabraw’s decision both in the Ninth Circuit (where the case remains pending) and in a petition to the Supreme Court, asking the Justices to rule without waiting for the Circuit Court. They argued that the Justices should step in now because federal District judges have reached conflicting rulings on whether lawsuits against the law are premature, or can go forward.

The Supreme Court’s reaction to the petition had been watched closely, not because it was likely to be granted (the Court seldom hears cases to rule on conflicting rulings in federal District Courts) but as an early indicator of whether Justice Kagan would participate. As the former U.S. Solicitor General, she has regularly taken herself out of cases on which she had played any role in that position. Her failure to step out of the Baldwin case seemed to indicate that she had had no part in the government’s defense of the new law in lower courts. (The Baldwin petition is discussed at length in this prior post. The Administration waived its right to respond to the petition, and the Court did not ask for a response — usually an indication that a case will be denied review.)

This is just the typical way the SCOTUS works. However, it does not matter anymore. With the beating last week Democrats took and the numbe of state legislators that flipped red (some had not been red since the late 1800s), the Supreme Court is about to be put in its place. Look for the first Constitutional Convention in over 200 years to happen. There are now enough states to do it. The new amendment? If 2/3 of the State Legislators deem a law to be unwanted (no uncontitutional but not desired by the states for any reason whatsoever) then it is no longer deemed a law. This will finally put power back into the hands of the states. Congress will probably move and pass this via the standard amendment route before the Convention occurs out of sheer fear the Convention will strip them of a majority of their powers.

It's over. Last Tuesday was the poltical equivalent of Lexington. It was the shot heard around the world. If the SCOTUS is smart they will get on board fast or the convention may just add an amendment that makes it easier to impeach a SCOTUS justice. Now THAT is something I would love to see.

Times they are a'changing.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

PERSPECTIVE

A “Broader Regulatory Scheme” — The Constitutionality of Health Care Reform
A “Broader Regulatory Scheme” — The Constitutionality of Health Care Reform | Health Policy and Reform

NEJM | October 27, 2010 | Topics: Health Law, Politics of Health Care Reform

Sara Rosenbaum, J.D.

Although a federal court in Florida has allowed a state challenge to the constitutionality of health care reform to proceed to the next stage of litigation,1 a second federal court in Michigan has already swiftly dispatched identical claims on the merits. In rejecting the plaintiffs’ claim, in Thomas More Law Center et al. v. Barack Hussein Obama et al., that the 2010 health care reform is unconstitutional, Judge George Steeh wrote on October 7 that according to a wealth of U.S. Supreme Court precedent, Congress’s power to regulate individual activity under the Commerce Clause (in this case, through a mandate that individuals obtain health insurance) rests on whether the activity amounts to an “integral part of a broader regulatory statutory scheme that permissibly regulates interstate commerce.”2 In this regard, Steeh’s opinion contains two central and intertwined conclusions. First, “economic decisions as to how to pay for health care services have direct and substantial impact on the interstate health care market.” Second, the “minimum coverage provision is essential to the Act’s larger regulation of the interstate business of health insurance.”2

Both of these elements are essential to the holding. If there is no individual activity that directly and substantially affects interstate commerce, Congress cannot act. And if there is no broader statutory scheme regulating interstate commerce, then the federal law will fail the constitutional test, as other laws have done.3,4

For reasons that the U.S. District Court in Michigan found relatively obvious, the Patient Protection and Affordable Care Act (ACA) satisfies the first of these two requirements. As Judge Steeh noted, the health care market is unlike any other market, because there is no way that “living breathing beings” can opt out of it. Everyone needs health care at some point, and thus all of us are market purchasers, however reluctantly. How individuals buy health care is fundamentally a matter that affects the health care system nationwide.

But in order to be constitutional, a federal law must satisfy the second test: Congress must intervene in a manner that rises to the level of a broader regulatory scheme. Health care reform represents just such an intervention, offering a comprehensive redesign of the U.S. health insurance market. The law fundamentally transforms health insurance from a product designed to preserve profitability in the face of rampant adverse selection to a regulated industry whose long-term strength and stability are essential to the public interest and that, in its restructured form, will therefore take on certain characteristics of a public utility.4,5

The redesign of U.S. health insurance to advance the national public interest addresses two profound threats to the survival of a functional health care system that is capable of serving Americans’ needs. The first problem is that tens of millions of people are uninsured, either as a matter of a deliberate choice or as the result of financial or health-related exclusionary barriers. The second problem, triggered by the first, is rampant shifting of costs onto millions of other Americans who have chosen to be insured and are fortunate enough to be able to obtain coverage.

Of course, the individual mandate is central to the legislative scheme, since without a large pool of healthy adults and children, it is simply impossible to create the market conditions for stable health insurance — a fact that is universally recognized by economics experts. But if the ACA stopped at mandating coverage — leaving Americans to fend for themselves in finding products that would adequately finance health care for them and their families — it might not achieve the stature essential to a broad regulatory scheme.

The ACA represents a constitutional intervention into the health insurance market because of a combination of five results that it achieves. First, and perhaps most fundamentally, in a remarkable shift whose precedent lies in the watershed Civil Rights Act of 1964, the ACA transforms health insurance into a public accommodation. The Civil Rights Act barred private businesses such as hotels, bus companies, and restaurants from refusing to sell their products or services to customers on the basis of race. The ACA bars state-licensed health insurers from refusing to sell products to individuals on the basis of health status. This prohibition, which bars rescissions — the canceling of policies of people who become ill — and which applies at both the point of initial sale and the point of renewal, is binding on health insurers nationwide, regardless of whether they sell their products in the open market or through state health insurance exchanges. This basic reconceptualization of health insurance as a good whose availability is a matter of national public interest essentially frames health insurance the way the Civil Rights Act framed other business interests.

Second, the ACA establishes minimum national standards governing the design of health insurance sold in the individual and group-plan markets, as well as the design of self-insured employer-sponsored plans. In all insurance markets, these standards include bans against excessive waiting periods and against the imposition of annual and lifetime coverage limits, a requirement to cover preventive services with no cost sharing, and a requirement to cover routine medical costs associated with participation in clinical trials. In the individual and small-group markets, design regulation reaches further, specifying a minimum level of coverage for “essential health benefits” and limits on exposure to out-of-pocket costs for those essential benefits. Equally important are new rules that, according to a strategy of measuring the medical loss ratio (the proportion of money collected in premiums that is actually spent on medical care), position the industry for greater price regulation as a result of increased transparency of cost increases and their justifications.

Third, the ACA creates a nationwide system of health insurance exchanges serving the individual and small-group markets and gives states the option to expand their exchanges to reach larger groups. The law encourages states to establish and operate their own exchanges but guarantees access to a federally administered exchange in states that elect not to do so. Health insurance sold through exchanges will be subject to “qualified health plan” requirements, which are aimed at ensuring not only the integrity of coverage, but also, by stipulating that each plan’s provider network must be adequate, the availability of affordable health care itself.

Fourth, the ACA establishes a uniform, national subsidy system that ensures Medicaid coverage for the poorest Americans and advance tax credits for insurance premiums for individuals and families who are not eligible for Medicaid but have low-to-moderate incomes. States, of course, participate in Medicaid on a voluntary basis, but all participating states will be required to extend coverage to newly eligible individuals, just as many previous Medicaid reforms have created new mandatory categories of beneficiaries. In this case, the new expectations are accompanied by considerable new funding.

Finally, the ACA uses the platform of uniform, stable financing to begin to change health care itself, on a nationwide basis. The law provides for a major investment in primary care through an expansion of federally qualified health centers. This investment is coupled with a series of health care cost-cutting measures, as well as the establishment of national frameworks for quality improvement and public health and prevention, as well as pilot and demonstration projects that aim to improve the quality and efficiency of health care for the entire population over time.

The fundamental goal of the ACA is no less than the preservation of the U.S. health care system. In a country that depends on health insurance to finance care, preservation cannot happen without a comprehensive regulatory scheme that reaches from coast to coast and sets the minimum rules of market entry and operation for health insurers. The glide path to this new system is long and complex, but the law’s end point is clear and visionary, and its constitutionality — at least in this first round — is incontrovertible.

This article (10.1056/NEJMp1010850) was published on October 27, 2010, at NEJM.org.

Source Information

From the Department of Health Policy, School of Public Health and Health Services, George Washington University Medical Center, Washington, DC.

References

1. Florida et al. v. United States Department of Health and Human Services et al. Case No.: 3:10-cv-91-RV/EMT.

2. Case no. 10-CV-11156) E.D. Mich., Oct. 7, 2010.

3. United States v. Lopez, 514 U.S. 549 (1995).

4. United States v. Morrison 529 U.S. 598 (2000).

5. Priest AJG. Possible adaptation of public utility concepts in the health care field. Law Contemp Probl1970;35:839-848

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Constitutional law prof: Mitch McConnell's attack on health reform is "absurd"
The Plum Line - Constitutional law prof: Mitch McConnell's attack on health reform is "absurd"

By Greg Sargent

As you may have heard, Mitch McConnell has thrown in his lot with states suing to overturn Obamacare, filing a friend-of-the-court brief arguing that the individual mandate is unconstitutional.

I just checked in with a constitutional law professor -- this seemed like a good hook to ask an expert to take a look at this claim, since it's so widespread -- and he dismissed McConnell's argument as "absurd."

Louis Seidman, a professor at Georgetown University, spelled out why the primary arguments advanced by McConnell's brief don't hold any legal water. It argues, as many others have, that the commerce clause in the Constitution does not authorize the creation of an individual insurance mandate.

The commerce clause "does not authorize Congress to mandate the purchase of a particular product, only to regulate commercial activity in which people are engaged," the brief says.

But Seidman counters that the mandate is Constitutional, because it falls under the Constitution's authorization of Congressional regulation of commercial activity that has a substantial impact on interstate commerce -- and that this has been upheld by the Supreme Court. The 1942 decision Wickard v. Filburn allowed Congress to prohibit farmers from growing excess wheat for their own use, on the grounds that so doing would impact the interstate wheat trade.

Under the decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same.

"The claim that opponents of the mandate make is that Congress has never forced people to engage in interstate commerce," he says. "But Wickard did that."

Seidman, who allows that he generally supports Dems and Obamacare, also argues that the McConnell case is off base in another way. He says that Congress in a sense already compels the purchase of insurance.

Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says.

Seidman adds that this is not meaningfully different from Obamacare's mandate that individuals buy insurance: "It is absurd to argue that the Constitution requires that the Federal government be a conduit for money taken from individuals and given to insurance companies," he says.

In other words, he concludes, it's absurd to argue that removing the Federal government from this equation somehow suddenly makes the arrangement unconstitutional.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Constitutional law prof: Mitch McConnell's attack on health reform is "absurd"
The Plum Line - Constitutional law prof: Mitch McConnell's attack on health reform is "absurd"

By Greg Sargent

As you may have heard, Mitch McConnell has thrown in his lot with states suing to overturn Obamacare, filing a friend-of-the-court brief arguing that the individual mandate is unconstitutional.

I just checked in with a constitutional law professor -- this seemed like a good hook to ask an expert to take a look at this claim, since it's so widespread -- and he dismissed McConnell's argument as "absurd."

Louis Seidman, a professor at Georgetown University, spelled out why the primary arguments advanced by McConnell's brief don't hold any legal water. It argues, as many others have, that the commerce clause in the Constitution does not authorize the creation of an individual insurance mandate.

The commerce clause "does not authorize Congress to mandate the purchase of a particular product, only to regulate commercial activity in which people are engaged," the brief says.

But Seidman counters that the mandate is Constitutional, because it falls under the Constitution's authorization of Congressional regulation of commercial activity that has a substantial impact on interstate commerce -- and that this has been upheld by the Supreme Court. The 1942 decision Wickard v. Filburn allowed Congress to prohibit farmers from growing excess wheat for their own use, on the grounds that so doing would impact the interstate wheat trade.

Under the decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same.

"The claim that opponents of the mandate make is that Congress has never forced people to engage in interstate commerce," he says. "But Wickard did that."

Seidman, who allows that he generally supports Dems and Obamacare, also argues that the McConnell case is off base in another way. He says that Congress in a sense already compels the purchase of insurance.

Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says.

Seidman adds that this is not meaningfully different from Obamacare's mandate that individuals buy insurance: "It is absurd to argue that the Constitution requires that the Federal government be a conduit for money taken from individuals and given to insurance companies," he says.

In other words, he concludes, it's absurd to argue that removing the Federal government from this equation somehow suddenly makes the arrangement unconstitutional.

Awesome. So the Commerce Clause in effect gives Congress unlimited power. Let's all celebrate. When conservatives are in charge they can pass laws telling you how to run your life and visa versa for liberals. What cars to buy, how to invest, taking your 401k money and placing it in a government trust fund. Heck with this interpretation Congress has unlimited powers. Which begs the question: Why were Congress' powers enumerated to begin with. It does not take a PhD to realize that the argument Congress can mandate something on you just for breathing is "absurd".

Look for the states to rectify this situation with a Constitutional Convention. Then the courts will effectively loose all the power they have abused for the past two hundred plus years. I personally cannot wait for this to happen.

I guess the Federalist and Anti-Federalist promises that none of the Clauses (Commerce, General Welfare, Supremacy) would extend Congresses powers beyond their enumerated powers and create a tyranny were just lies. Or could it be that we have allowed this usurpation of our power into the hands of a centralized power.

Guess who used the words of Lincoln to justify tyranny in their own countries? The Chinese PM to Bill Clinton concerning Taiwan, and none other than Adolf Hitler. The centralization of power should scare the hell out of anyone. Dr. Scally, you personally have experience how power can be abused by a few to lord over a person. Why do you seem so intent on supporting this absurdness on a national level? John McCain recently wanted to regulate the supplement market. Guess what? He can't under the original constitution, but due to judicial activism over the centuries Congress can and probably will one day. California just took toys out of Happy Meals unless servings of vegetables are included in the meals. This is just the beginning.

Thankfully, sane people are not going to allow this to happen.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

White House Braces for Legal Setback to ObamaCare
http://www.nytimes.com/2010/11/27/us/politics/27health.html

›November 26, 2010
By KEVIN SACK and ROBERT PEAR

WASHINGTON — As the Obama administration presses ahead with the health care law, officials are bracing for the possibility that a federal judge in Virginia will soon reject its central provision as unconstitutional and, in the worst case for the White House, halt its enforcement until higher courts can rule.

The judge, Henry E. Hudson of Federal District Court in Richmond, has promised to rule by the end of the year on the constitutionality of the law’s requirement that most Americans obtain insurance, which does not take effect until 2014.

Although administration officials remain confident that it is constitutionally valid to compel people to obtain health insurance, they also acknowledge that Judge Hudson’s preliminary opinions and comments could presage the first ruling against the law.

“He’s asked a number of questions that express skepticism,” said one administration official who is examining whether a ruling against part of the law would raise questions about whether other provisions would automatically collapse. “We have been trying to think through that set of questions,” said the official, who insisted on anonymity because he was not authorized to discuss the case freely.

While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states. Not only would an adverse ruling confuse Americans and attack the law’s underpinnings, it could frustrate the steps hospitals, insurers and government agencies are taking to carry out the law.

“Any ruling against the act creates another P.R. problem for the Democrats, who need to resell the law to insured Americans,” said Jonathan Oberlander, a University of North Carolina political scientist, who wrote in The New England Journal of Medicine last week that such a ruling “could add to health care reform’s legitimacy problem.”

So far, there has been only one ruling on the merits among nearly two dozen legal challenges to the health care act. Last month, a federal district judge in Michigan upheld the law. But another judge, Roger Vinson of Federal District Court in Pensacola, Fla., has joined Judge Hudson in writing preliminary opinions that seemingly accept key arguments made by state officials challenging the law.

Unlike the judge in Michigan, who was appointed by President Bill Clinton, both Judge Hudson and Judge Vinson were appointed by Republican presidents.

“We are not operating under the assumption that those two judges are inevitably going to rule against us,” the administration official said. “But of course we’re planning for the possibility that judges will reach different conclusions.”

The novel question before the courts is whether the government can require citizens to buy a commercial product like health insurance. Because the Supreme Court has said the commerce clause of the Constitution allows Congress to regulate “activities that substantially affect interstate commerce,” the judges must decide whether the failure to obtain insurance can be defined as an “activity.”

Lawyers on both sides expect the issue eventually to be decided by the Supreme Court. But the appellate path to that decision could take two years. In the meantime, any district court judge who rules against the law would have to decide whether to block enforcement of one or more of its provisions, potentially creating bureaucratic chaos.

Such a decision would prompt a flurry of appeals, as the Justice Department almost certainly would ask the judge and then the appellate courts to stay, or delay, the injunction pending the outcome of higher court rulings.

Administration officials, as well as some lawyers for the plaintiffs, agree that Judge Hudson seems unlikely, based on his comments from the bench, to enjoin the entire law. The judge volunteered at a hearing last month that his courtroom was “just one brief stop on the way to the Supreme Court.”

If he does not enjoin the law, the immediate impact of a finding against the insurance mandate would be limited because that provision, and others that might fall with it, do not take effect for more than three years.

Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Judge Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.

Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a “severability clause” that would explicitly protect other parts of the sprawling law if certain provisions were struck down.

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.

The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.

The administration argues that other key provisions do not depend on the insurance mandate. Those provisions include establishing health insurance exchanges, subsidizing premiums through tax credits and expanding Medicaid eligibility, all scheduled for 2014.

Nor, administration officials said, would an adverse ruling necessarily undermine certain insurance regulations that recently took effect, like the requirement that insurers cover children younger than 26 on their parents’ policies.

In a hearing last month, Judge Hudson remarked on the difficulty of determining Congress’s intent regarding a law with hundreds of disparate provisions. “This bill has more moving parts than a Swiss watch,” he said.

Lawyers for Virginia have sought to turn one of the federal government’s arguments on its head. They note that the health law explicitly refers to the insurance requirement as “an essential part” of the act’s regulatory scheme, and that Justice Department lawyers — in pressing their point that the law permissibly regulates commerce — have called it the “linchpin.”

If it is so essential, Virginia’s lawyers have asked, why should a judge believe that Congress intended for the rest of the act to stand without it?

Any illusion that the cases are not highly politicized was lost when Republican leaders raced this month to file friend-of-the-court briefs in Pensacola, and Democrats responded with briefs from state legislators and supportive economists. Among the Republicans intervening in the case are Representative John A. Boehner of Ohio, the future speaker; 32 United States senators; and Gov. Tim Pawlenty of Minnesota, a possible presidential candidate.

A White House official said that in the meantime “the litigation is really not having an impact” on the pace of putting the law into effect: “I talk weekly to officials in states that have sued us, and in states that have not. I cannot tell the difference between them.”‹

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Judge Rejects Health Law Challenge
http://www.nytimes.com/2010/12/01/health/policy/01lawsuit.html

November 30, 2010

By KEVIN SACK

WASHINGTON — For the second time in two months, a federal judge has upheld the constitutionality of the new health care law, ruling on Tuesday that the requirement that most Americans obtain medical coverage falls within Congress’s authority to regulate interstate commerce.

The judge, Norman K. Moon of Federal District Court, who sits in Lynchburg, Va., issued a 54-page ruling - http://graphics8.nytimes.com/packages/pdf/us/20101201-lawsuit.pdf - that granted the government’s request to dismiss a lawsuit brought by Liberty University, the private Christian college founded by the Rev. Jerry Falwell. Last month, in a separate case, Judge George C. Steeh of Federal District Court in Detroit also upheld the law.

Like Judge Steeh, Judge Moon was appointed by President Bill Clinton, a Democrat.

Two other federal judges, Henry E. Hudson in Richmond, Va., and Roger Vinson in Pensacola, Fla., are expected to rule in similar cases in the next few months, and each has expressed considerable skepticism about the law’s constitutionality. Judge Hudson and Judge Vinson were appointed by Republican presidents.

Lawyers on both sides expect that the Supreme Court may eventually have to decide among conflicting lower-court opinions.

There have been approximately two dozen distinct legal challenges to the law since its enactment in March. The measure is designed to cover the majority of the country’s uninsured by requiring that most people have insurance and providing subsidies to make it affordable.

Judge Moon rejected the argument by plaintiffs around the country that the Commerce Clause of the Constitution does not empower Congress to require Americans to buy a commercial product like health insurance. To do so, they argue, would amount to the regulation of inactivity.

In disagreeing, Judge Moon embraced arguments made by the Justice Department. “Far from ‘inactivity,’ ” he wrote, “by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.”

 

[james2012]

More ObamaCare Mandate Kabuki Theater

This is for all you who wet your pants every time you read a lower federal judge appointed by a liberal thinks the mandate is constitutional. Don't count your chickens before they hatch (emphasis mine). And don't forget the states are ready to fight this on every possible level up to and including a Constitutional Convention in the event the Supreme Court decides to make the ultimate power grab. Given the threat of a Convention that wills strip the government of 200 years of hard fought usurpation of the power of the people, look for the SCOTUS to rule the mandate unconstitutional. If they don't, they just might find a new amendment making is easy for states to gather together to impeach federal judges - up to and including Supreme Court justices. The people have spoken and the proverbial shit is about to hit the fan:

Federal judge upholds ObamaCare mandate Hot Air

In the second such ruling, a federal judge in Virginia has declared the federal mandate to purchase insurance constitutional. Jude Norman Moon, a Clinton appointee as noted by The Hill, refused Liberty University’s challenge on the basis of ObamaCare funding for abortion, writing that since everyone at some time will seek health care services, the decision whether to buy insurance has a significant impact on interstate commerce and falls under the jurisdiction of Congress:

“I hold that there is a rational basis for Congress to conclude that individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market,” ruled U.S. District Judge Norman Moon, a Clinton appointee. “Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care.…

“Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.”

A federal judge in Michigan ruled the same way last month. And in August, a California federal judge rejected a similar lawsuit on the grounds that the plaintiffs had no standing.

It’s an interesting ruling. The rule of law in this nation has usually been based on acts of commission, not acts of omission (with some notable exceptions, such as refusing to pay taxes). Refusing to take part in a market, or to use the court’s construct, choosing when to participate in that market, has suddenly become a federal jurisdiction. It’s even more interesting when considering the fact that Congress had barred interstate commerce in health insurance, which is one of the reasons we have some states with few insurance choices for consumers.

The White House celebrated the decision as yet another vindication of ObamaCare. However, this case and the two previous cases are merely the warm-up act. The lawsuits brought by the states will be the main show, and even those won’t matter as much until the initial rulings get appealed. The question of Congressional jurisdiction and limitation of power will only get settled by the Supreme Court — assuming that a new President and Congress haven’t overturned ObamaCare before the Supremes get the chance to reach a verdict.

I want a SCOTUS ruling. If they rule the mandate down then Congress will know its limitations. If they don't, they just handed us back the country and put their own jobs at stake.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

U.S. judge rejects key part of Obama healthcare law
http://www.wdbj7.com/la-na-healthcare-ruling-20101214,0,3198363.story

A federal judge in Virginia has found a key provision of the health care law unconstitutional, the first such ruling on President Obama's landmark reform.

Judge Henry E. Hudson of the Eastern District Court in Richmond, appointed by George W. Bush, ruled that the law's mandate that all Americans have a minimum level of coverage, or pay a fine if they do not, exceeds federal authority.

Virginia's Republican Attorney General, Ken Cuccinelli, challenged the law by rejecting the federal government's view that the mandate is enforceable under the Commerce Clause of the Constitution. The state was seeking an injunction against the entire health care act if the mandate was found unconstitutional.

Virginia has passed a law stating that residents cannot be ordered to buy insurance.

A federal judge in Florida ruled in October that a separate suit challenging the law brought by 20 states and the National Federation of Interdependent Business could move forward. But a Michigan judge had dismissed a third suit earlier that month.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

U.S. judge rejects key part of Obama healthcare law
http://www.wdbj7.com/la-na-healthcare-ruling-20101214,0,3198363.story

A federal judge in Virginia has found a key provision of the health care law unconstitutional, the first such ruling on President Obama's landmark reform.

Judge Henry E. Hudson of the Eastern District Court in Richmond, appointed by George W. Bush, ruled that the law's mandate that all Americans have a minimum level of coverage, or pay a fine if they do not, exceeds federal authority.

Virginia's Republican Attorney General, Ken Cuccinelli, challenged the law by rejecting the federal government's view that the mandate is enforceable under the Commerce Clause of the Constitution. The state was seeking an injunction against the entire health care act if the mandate was found unconstitutional.

Virginia has passed a law stating that residents cannot be ordered to buy insurance.

A federal judge in Florida ruled in October that a separate suit challenging the law brought by 20 states and the National Federation of Interdependent Business could move forward. But a Michigan judge had dismissed a third suit earlier that month.

Of course the SCOTUS will have the final word and given Kennedy's statement that he won't leave until Obama is out of office I think we know how this 5-4 decision will go. If it does not, the states WILL use their constitutional authority to call a constitutional convention and change the law of the land to allow states to dictate federal laws nullified. I have this from a very good source. Of course, Congress and the SCOTUS does not ever want to see this happen so don't be surprised if there are enough votes to repeal even with the threat of a veto. I personally hope Congress holds its ground and the SCOTUS rules in favor of the mandate. Then it won't be long before federal power is checked and the first law to go straight to hell will be ObamaCare. I certainly hope the feds are brazen enough to act this stupidly. Gone forever will be the overreach of federal power and the return to rule by the states as our founder's intended.

That will be a very happy day.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Health care mandate nullified
Health care mandate nullified : SCOTUSblog

A federal judge strikes down the mandate by Congress that nearly every American buy health insurance by 2014. Three other judges had rejected similar challenges.

A federal judge in Richmond, Va., ruled Monday that Congress had no authority under the Constitution to require that nearly every American buy health insurance by the year 2014 — a crucial part of the health care package promoted by President Obama. U.S. District Judge Henry Hudson, in a 42-page ruling, declared that “an individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause.” This was the first federal court ruling against that requirement, after three other judges had turned aside challenges.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Health care mandate nullified
Health care mandate nullified : SCOTUSblog

A federal judge strikes down the mandate by Congress that nearly every American buy health insurance by 2014. Three other judges had rejected similar challenges.

A federal judge in Richmond, Va., ruled Monday that Congress had no authority under the Constitution to require that nearly every American buy health insurance by the year 2014 — a crucial part of the health care package promoted by President Obama. U.S. District Judge Henry Hudson, in a 42-page ruling, declared that “an individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause.” This was the first federal court ruling against that requirement, after three other judges had turned aside challenges.

Three other liberal appointed judges.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Court cases this week
Court cases this week | The Incidental Economist

It’s going to be a busy week for the courts and the PPACA. Today, a Virginia federal judge will rule on whether the law is unconstitutional. Later in the week, another federal judge will hear arguments on a similar care in Florida.

The press will likely have a field day. There will be pundits and pontificating and lots of breathless exclamation. But I bet at the end of the week, nothing will have changed.

No matter what happens, there’s no way this won’t be appealed to the Supreme Court. So the questions won’t be answered today. If the judges rule the mandate is unconstituitonal, that still won’t be the final word.

Even if they do rule it unconstitutional, it’s unlikely they will place an injunction on the law. The mandate doesn’t kick in until 2014, so there’s no reason to rush. Especially since the decision will be appealed.

Even if the mandate is ultimately found unconstitutional, that doesn’t mean the whole law will be thrown out. See this post.

But let’s say it is. Let’s say in 2014, that the law is about to go away. There is no reason that we won’t see a repeat of the last few months, but in reverse. Every Republican who spun the expiration of the Bush tax breaks as “raising taxes” will have to face Democrats who will spin the loss of PPACA as “they’re taking your health insurance away”. Imagine the commercials: your subsidies are being taken away; your donut hole rebates are being taken away; your doctors will be paid less; your copays will go up; your kids are going to be kicked off your plan; you will be denied insurance if you get sick; you will now face lifetime limits; your insurance costs are going up because you got sick; your Medicaid is being taken away…

And so on. It will be very hard to take all that away and remain popular. The American people might not like how the sausage is made, but they do love their pork.

So my advice to you is to pay as little attention as possible to this week’s rulings, no matter which way they go. I doubt many will listen to me.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Is the Hudson ruling good news for health reform?
Ezra Klein - Is the Hudson ruling good news for health reform?

By Ezra Klein

District Court Judge Henry E. Hudson, a George W. Bush appointee, has, as expected, ruled the individual mandate unconstitutional. So why are health reformers so unexpectedly pleased?

There are two reasons, but first, let's put this into context. Hudson's ruling is the third from a district court so far. Previously, Judge Norman Moon found the mandate constitutional, and so too did Judge George Steeh. Both Steeh and Norman were Clinton appointees, which is to say that so far, the rulings are proceeding along predictably partisan lines.

Hudson ruled against the government, but he didn't stop it (you can read the full opinion here). He refused the plaintiff's request for an injunction against the legislation's continued implementation. The construction of the bill's infrastructure will continue. And second, he refused to overrule anything but the individual mandate itself.

The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That'd be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn't penalize anyone for deciding not to do something (which is the core of the conservative's legal argument against the provision). Here's one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that's exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. "The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501." That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for "1501." It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make "specific reference" to the provision, even if you could argue that they are "directly dependent" on the provision. The attachment of the "specific reference" language appears to sharply limit the scope of the court's action.

Hudson will not have the last word on this. Anthony Kennedy will. The disagreements between the various courts virtually ensure that the Supreme Court will eventually take up the case. But right now, the range of opinions stretch from "the law is fine" to "the individual mandate is not fine, but the rest of the law is." That could create problems for the legislation if the mandate is repealed and Republicans block any attempts at a fix, but it's a far cry from a world in which the Supreme Court strikes down the whole of the health-care law.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

If the IM goes down, so goes the law. The entire edifice is prefaced on the IM being constitutional. The bill falls apart without it. So defacto ObamaCare is dead if the mandate is dead. Ezra Klein, every the useful liberal idiot and wrong about 90% of the time - they guy is literally a neophyte and gets paid for it - is, as usual, listening to the fairy dust wishes in his liberal dreamland.

Is the Hudson ruling good news for health reform?
Ezra Klein - Is the Hudson ruling good news for health reform?

By Ezra Klein

District Court Judge Henry E. Hudson, a George W. Bush appointee, has, as expected, ruled the individual mandate unconstitutional. So why are health reformers so unexpectedly pleased?

There are two reasons, but first, let's put this into context. Hudson's ruling is the third from a district court so far. Previously, Judge Norman Moon found the mandate constitutional, and so too did Judge George Steeh. Both Steeh and Norman were Clinton appointees, which is to say that so far, the rulings are proceeding along predictably partisan lines.

Hudson ruled against the government, but he didn't stop it (you can read the full opinion here). He refused the plaintiff's request for an injunction against the legislation's continued implementation. The construction of the bill's infrastructure will continue. And second, he refused to overrule anything but the individual mandate itself.

The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That'd be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn't penalize anyone for deciding not to do something (which is the core of the conservative's legal argument against the provision). Here's one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that's exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. "The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501." That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for "1501." It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make "specific reference" to the provision, even if you could argue that they are "directly dependent" on the provision. The attachment of the "specific reference" language appears to sharply limit the scope of the court's action.

Hudson will not have the last word on this. Anthony Kennedy will. The disagreements between the various courts virtually ensure that the Supreme Court will eventually take up the case. But right now, the range of opinions stretch from "the law is fine" to "the individual mandate is not fine, but the rest of the law is." That could create problems for the legislation if the mandate is repealed and Republicans block any attempts at a fix, but it's a far cry from a world in which the Supreme Court strikes down the whole of the health-care law.