A look at the requirements and costs of buy health care coverage under ACA, using a flow chart model.
Monthly Archives: June 2012
The Penalty of High Expectations
Who would think our biggest political debate would be over health care costs and coverage, with millions fervently committed to not requiring its costs of coverage be shared?
The decision today, the Roberts opinion, is being looked at through the lens of a milieu far different than the progressive view that defined America when it extended voting and civil rights to discriminated classes of citizens, protected the individual rights of women to determine their decisions for their bodies, and in step with world, offered the benefits of social safety nets as a return its citizens labor.
I am reminded of Ben Franklin’s letter to South Carolina’s Henry Laurens; picked as peace commissioners to settle the Revolutionary War, Franklin confided to Laurens (the 4th Continental Congress President!) that expectations were too high, that any action would disappoint. Already, in fever pitches, people are speaking of this decision as a historic wrong, one of the court’s great errors, of a deep, abiding disappointment.
Inside the great din, I think the Chief Justice ruled on the law, not on the legislation. It is not the purpose of the Court to save the nation from bad legislation, he stated.
In this milieu, many people wanted a partisan result. What came down was a decision, blindfolded and firewalled from its public framing, weighed on the scales and found well within the balance of powers and rights between government and citizens.
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Notice to Jeer
Not a single GOP debate this year had an issue attached to a human face. And when they appeared, they were booed. The gay military officer, the immigrant college student, union workers, teachers were among those met with jeers and advice as civil as Marie Antoinette’s. Raise your hand to speak and you were accused of class warfare over food stamps. But nothing aroused ire like the idea “I have to pay for health care for myself.” The gimme’s of liberty were buy or die. The mob hollered “die.” Preserving life became a socialist cause.
Then the court ruled, or rather the Chief Justice weighed in to preserve a market of 30 million new consumers for the same corporations whose speech is instructive by its silence.
The President, ever the empiricist, along with former Speaker Pelosi, managed to wrangle needed benefits for families and the medically challenged; the Supreme Court cut the poor. But it’s hard to declare a new, captured market of 30 million people unconstitutional. So it’s legal to charge us, for the government to mandate the fee which is transferred to private plans. That central, ringing, immutable Republican principle–use government for large, private transfers on a national scale–so happens to lie in the middle of today’s good news.
Not bi-partisan, drowned out in the noise (another GOP favorite, misdirection!), two goals were met in one decision and corporations will be obliged to give the people more than expected but not as much as many wanted.
Still, Paul Krugman’s right. It was a good win.
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Dying Before Buying
The Chief Justice who gave us Citizen’s United cannot be called a minimalist. A Justice who has tacked the Court to the right can hardly be seen as modest. A quick peek at those who did not oppose ACA–heallth care corporations, insurers, providers, industry operators–offers a spectulative insight that is at least in line with the Court’s decisions favoring corporations and increasing their rights to wield influence through law.
Who cares about the misguided protests of those who put dying over buying. ACA brings guaranteed premiums and expands the market by 30 million. Whether or not the commerce clause applied, does anyone think stakeholding corporations wanted to kill that market in a single legal ruling?
Relief for the states, yes. A few comments on the ineptness of the legal arguments, a zinging aside reminding all us the Court doesn’t protect us from bad legislation, that’s not its role. Its role has been to protect the monied interests mapped by a constitution that represented special interests within our history. Law is a mirror to conceal the shadows—and make noble its horrors. Law conceals real consequences and intent, but occasionally shows its naked power. Ask Dred Scott. Ask Homer A. Plessy. On the other scale, ask Citizens United.
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The Furies
On the popular side of the health care question is a fury that has little to do with the law. Its opponents seldom mention the ACA health care provisions, as they claim their fear of a permanent loss of liberty has occurred because of out-of-pocket fees to be required by the ACA. Apparently, they find the high costs of treating the uninsured, of the loss of coverage through the lack of portability, of insufficient coverage for pre-existing conditions that put families at greater concrete risk a better price for liberty than the mandated “socialism” they see in today’s ruling’s open conceptual door.
Law must fit a variety of logical views, balanced on its scales. But weighing the hypothetical unseen, without evidence or empirical support, against the real burdens of families and society, closely tied to economic growth seems to abandon democratic principles–that we all support a common cause, and “the safeguard of the strongest is to live under a government obliged to respect the voice and concerns of the weakest.” (Robert Purvis.)
What was once moral and political principle is now abandoned in the name of freedom and classified as government intrusion. It is a freedom of rights which is absolute, without responsibility or cash value. The contradiction is that those who seek this freedom want to stand on their own, but don’t want to assume any costs to do so.
The truth is, before, government paid the way. Now each of us will be called–required–to pay a fair share. That’s fair. (NYT Pick)
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Government and Citizens
Who would think our biggest political debate would be over health care costs and coverage, with millions fervently committed to not requiring its costs of coverage be shared?
The decision today, the Roberts opinion, is being looked at through the lens of a milieu far different than the progressive view that defined America when it extended voting and civil rights to discriminated classes of citizens, protected the individual rights of women to determine their decisions for their bodies, and in step with world, offered the benefits of social safety nets as a return on its citizens labor.
I am reminded of Ben Franklin’s letter to South Carolina’s Henry Laurens; picked as peace commissioners to settle the Revolutionary War, Franklin confided to Laurens (the 4th Continental Congress President!) that expectations were too high, that any action would disappoint. Already in fever pitches, people are speaking of this decision as a historic wrong, one of the court’s great errors, of a deep, abiding betrayal.
Inside the great din, I think the Chief Justice ruled on the law, not on the legislation. It is not the purpose of the Court to save the nation from bad legislation, he stated. Then he clearly followed through on the law, following established court precedents well within the mainstream.
In this milieu, many people wanted a partisan result. What came down was a decision, blindfolded and firewalled from its public framing and fanning, weighed on the scales and found well within the balance of powers and rights between government and citizens.
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Today’s health-care decision: In Plain English
By Amy Howe
(Posted on the SCOTUSblog, June 28, 6:07p, reprinted under Creative Commons License)
Shortly after ten o’clock this morning, and after more than one false alarm, the Court issued its decision in the challenges to the constitutionality of the Affordable Care Act. In this post, we will dissect the decision in Plain English. But before we do that, let’s cut to the chase on the issue in which people are generally the most interested (and which I’ve already discussed in an initial post in Plain English): a deeply divided Court held that the individual mandate, which requires that virtually all Americans either obtain health insurance or pay a penalty by 2014, is constitutional.
Before it could decide whether the mandate is constitutional, however, the Court had to determine whether it was allowed to do so at all. As I explained back in March, the Court spent the first of the three days of oral argument hearing from three different lawyers on whether the challenges to the Affordable Care Act were barred by the Anti-Injunction Act, a Reconstruction-era law that prohibits lawsuits to challenge a tax until the tax actually goes into effect and has been assessed. Under this line of argument, because the penalty for failing to purchase health insurance (as the mandate requires) is a tax, no one can challenge it until after the mandate actually goes into effect in 2014.
After the oral argument, most Court watchers doubted that the Court would let the Anti-Injunction Act keep it from reaching a decision on the constitutionality of the mandate. Even Robert Long, the Washington lawyer who argued that the AIA should bar the Court from getting to the merits of the mandate, predicted after the argument that he would lose, quite possibly without receiving any votes. But Long’s argument was hardly a frivolous one: the federal government had made the same argument in the lower courts, but then decided to abandon it on appeal. And Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit – a well-respected conservative jurist who worked in the George W. Bush Administration – made the same argument when a challenge to the ACA reached his court.
In the end, the Court dealt with the Anti-Injunction Act issue quickly and neatly, in approximately four pages. In an opinion by the Chief Justice, the Court relied on the fact that, in the health care bill itself, Congress required anyone who does not buy health insurance to pay a penalty, rather than a tax. To be sure, Congress can’t just get around other limits on its power by calling something a penalty rather than a tax (or vice-versa), but here Congress enacted both the AIA and the health-care law; if it called it a penalty instead of a tax in the health-care law, and didn’t “require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act,” the Court concluded, that’s all that matters. The Anti-Injunction Act does not apply, and the Court could move on to consider the constitutionality of the mandate itself.
The centerpiece of the challenge to the Affordable Care Act was the so-called individual mandate – the requirement that almost all Americans buy health insurance by 2014 or pay a penalty. Defending the constitutionality of the mandate, the government’s primary argument was that Congress can require everyone to buy health insurance using its power under the Commerce Clause of the Constitution, because the failure to buy insurance shifts the costs of health care for the uninsured to health-care providers, insurance companies, and everyone who does have health insurance. Five Justices – the Chief Justice and Justices Kennedy, Scalia, Thomas, and Alito – all rejected that argument. But the government still won, because a different set of five Justices – the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan – agreed that the mandate was constitutional, but for a different reason.
The most important part of the Court’s opinion on the mandate came from the Chief Justice, John Roberts. He acknowledged that Congress has a broad power under the Commerce Clause, but he emphasized that Congress’s power to regulate commerce assumes that there is commerce to regulate. In his view, the mandate creates commerce, rather than regulating it. If the Court were to interpret the Commerce Clause the way that the government does, he contended, it would allow Congress to regulate all kinds of new things – including forcing people to buy vegetables (with no specific reference to broccoli, however). “That is not the country” the Founding Fathers envisioned, he proclaimed.
Although the Chief Justice rejected the government’s Commerce Clause argument, he agreed with one of the government’s alternative arguments: the mandate imposes a tax on people who do not buy health insurance, and that tax is something that Congress can impose using its constitutional taxing power. He acknowledged that the mandate (and its accompanying penalty) is primarily intended to get people to buy insurance, rather than to raise money, but it is, he explained, still a tax. If someone who does not want to buy health insurance is willing to pay the tax, that’s the end of the matter; the government cannot do anything else.
Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) agreed with the Chief Justice’s bottom line – that the mandate is constitutional under Congress’s ability to tax – even while disagreeing with his Commerce Clause conclusion; those four Justices would have also held that Congress could use its power to regulate commerce to pass the mandate.
With five votes to uphold the mandate, it will survive, and the Court did not need to consider the “severability” issue — that is, what other parts of the law would have to go if the mandate were unconstitutional. Instead, the Court moved on to the fourth issue in the case, popularly known as the “Medicaid coercion” issue. At issue is a provision in the health-care law that would require the states to provide Medicaid coverage for virtually all poor Americans under the age of sixty-five – a significant expansion of what the federal government currently requires – or risk losing all of the Medicaid funding that they get from the feds. The states argued that the provision is unconstitutional because the federal funding is so large, and they are so dependent on it, that they really don’t have a choice about whether to comply with the new requirements.
The Court acknowledged that Congress can put strings on the money that it gives to the states. However, it explained that this was not the kind of “relatively mild encouragement” that the Court had approved in earlier cases involving this “coercion” theory – for example, in a 1987 case in which it had held that Congress could threaten to withhold five percent of federal highway funds from states that did not raise their drinking age to twenty-one. Instead, the Medicaid provision goes too far and is more like a “gun to the head.” Having said that, however, the Court made clear that Congress could still attach some strings to the Medicaid funds. Specifically, even if it can’t take away all of the funding for states that don’t comply with the new eligibility requirements, it can still withhold the new Medicaid funds if states don’t comply. So although the Obama Administration lost on this issue, it’s probably a loss that it is willing to live with for now, as few states (if any) are ultimately expected to turn down the new Medicaid money, even with the strings.
After delivering its verdict on health care, the Court adjourned for the summer, leaving the rest of us to figure out exactly what the decision means. When they return in October, we’ll probably still be analyzing and debating it.
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Justice Scalia
Justice Scalia turns the review of a law into a line in the sand which he argues the establishment of state sovereignty itself is disassembled and trampled. But he sees no prudent limitation on the authority of states. He goes a step further and sees the constitution and legal precedent as granting—no, more—guaranteeing this right of sovereignty to states, with the federal function to protect the entitled state authority above its own. It seems Justice Scalia protects, as one of the original states’ rights, the right to discriminate without regard to liberty, due process, human rights, or national policy, all while calling himself an originalist, not an judicial activist.
An excellent essay that takes a measured, personal look at how Scalia’s ideas, esp. his claim of “evil effects,” enter the same backdoor of the legal system that permitted slavery and justified segregation can be found here: [http://bit.ly/M4RT0B].
Black History 360* 