Healthcare Problems Continue to Mount in Supreme Court!

March 29th, 2010
New Orleans, Louisiana

THE DEBATE IS OVER A LOT MORE THAN HEALTHCARE!

For three days this week, the national news focus was on the U.S. Supreme Court’s hearing concerning the constitutionality of the Affordable Care Act, better known as Obamacare. To most Republicans, the new law is a massive stretch of interpreting the Constitution’s commerce clause of allowing the federal government to require every individual to purchase health insurance. But to moderates and most Democrats, such a requirement is little more than another of a long line of government dictates on both the state and federal levels. So for folks like you and me, what do we know and what should we know about all the verbiage surrounding this technical and complicated law?

The simple question this week before the Supreme Court is whether, under the Commerce clause, Congress has the power to require Americans to obtain health insurance. If a majority of the Court’s member don’t like the law, that’s not a valid reason to hold the law unconstitutional. Supposedly, there has to be precedent. There has to be a clear extension of the law that goes beyond a federal issue, and one that does not violate a clearly defined state right. OK, OK. We will just forget about Bush v Gore for now.

Some will say the law has not even been put fully into effect yet. The mandate provisions do not kick in until 2014. And any mandatory penalty or tax for not complying is not collected until 2015. So how can there even be a court challenge? Good question. There is a law on the books called the Anti-Injunction Act that prohibits any court challenge by an individual unless a tax or penalty at issue at been both levied and paid. The court, under this law, has the right, even the obligation, to “punt” if you will on any decision until 2015. But will they? Or will they choose to just get the controversy out of the way?

Can government mandate what an individual is required to do? Certainly. They do it all the time. On the state level, residents are required to buy car insurance and get immunizations. On the national level, federal courts have supported efforts by Congress to make a number of demands on both the states as well as individuals. . Both Medicare and Social Security require an individual to pay into a federally created fund. No federal highway funds are given to each state unless the drinking age was raised to twenty one.

In California, medical use of marijuana is legal, and defendant Angel Reich had a doctor’s prescription to grow the plant for her own personal medical use only. Her case went to the Supreme Court (Ashcroft v. Raich), and the decision stated that the Commerce Clause applied and the federal government could regulate and prohibit her use. And how about Roscoe Filburn, a farmer from Minnesota, who raised wheat for his family’s own personal use? The Supreme Court upheld a 1938 federal law that told him how much wheat he could grow and made him pay a penalty for every extra bushel. (Wickard v. Filburn)

So there would seem to be ample case law and precedent for the Justices to uphold the idea of federal mandates. The law was passed by Congress and signed by the President. They made the rules. Chief Justice John Roberts has repeatedly said that judges are like umpires. Their job is to call balls and strikes, but not become rule makers. There is any number of examples where Congress has passed, and the Supreme Court has upheld, the regulation of individual activity.

But some would argue there is a big difference this time. In the case of this healthcare law, individuals are penalized for their inactivity. If you don’t buy healthcare, you get penalized. Can the failure to make a purchase be interpreted to be “commercial activity,” and thus be subjected to the new law? I think a strong argument can be made that individual inaction causes a domino effect, that makes those who comply with the law take additional action.

If you don’t comply with the law, then I have to pick up your slack. If you are not covered for health protection, then run to the emergency room to obtain care for free, those of us who do comply with the law have to pay for your failure to comply. Your inaction requires my additional action and forces me to assume additional cost. In this bigger picture, I would argue that there is ample room for the Commerce Clause to apply.

Here’s how David Brooks, the conservative columnist for the New York Times, sums it up: “The individual mandate is perfectly acceptable policy. We effectively have a national health care system. We all indirectly pay for ill, uninsured people who show up at emergency rooms. If all Americans are in the same interconnected health care system, I think it’s reasonable for government to insist that all Americans participate in the insurance network that is the payment method for that system.”

Many will argue that if the Supreme Court puts precedent aside and interjects their own personal feelings about the law by declaring ” Obamacare” unconstitutional, such a rejection will be perceived a s a major setback for the President. But who is going to lead the criticism of too much federal over reach? Mitt Romney is a cinch to be the Republican presidential nominee, and Democrats are already tagging him as the father of the Obama healthcare plan. As Governor of Massachusetts, he confected and strongly supported almost an additional plan for his home state. Can’t you just see the grin come across the President’s face in the first presidential debate when Romney or the moderator brings up Obamacare? “Now just where did the idea come from?”

And just where did the idea of an individual mandate originate before then Governor Romney instituted a similar plan in Massachusetts? The President can site as support for the an individual mandate just about every major Republican figure, starting with Newt Gingrich, and every conservative think tank, beginning with the Heritage Foundation ,going back to the early 1990s when such a mandate was offered as a Republican alternative to the Clinton healthcare proposals.

What we saw at the Supreme Court this week was the three Ps; precedent, politics and posturing. It could be Bush v. Gore all over again. And when all is said and done, Congress and the Supreme Court still have to deal the fact that 40 million Americans have no healthcare. The U.S is the only industrialized nation in the world that faces such a problem. Yet this political debate could continue for years to come.
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“There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”
Alexis de Tocqueville

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers throughout the country and on websites worldwide. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com

Politics or Opportunism on Healthcare?

Thursday, June 16th, 2011
Baton Rouge, Louisiana

ARE REPUBLICANS FLIP FLOPPERS ON
HEALTH INSURANCE MANDATES?

Remember the old knock on presidential candidate John Kerry back in the 2004 election? “I was for it before I was against it.” Today, about the single worst charge that can be made against any conservative republican presidential candidate is that they support requiring Americans to buy health insurance. But for decades, the Republican leadership in Washington embraced and championed individual mandates…well, that was before they “saw the light,” and flip-flopped against such a requirement. As Ricky Ricardo used to say: “Lucy, you got some explainin’ to do.”

The push towards mandated health care began back in the mid 1980s under President Ronald Reagan when he signed legislation that mandated free health care for all who seek it. That law, the Emergency Medical Treatment and Labor Act (EMTALA), was the largest expansion of government mandated health care since Medicare. But from the start, this new law engendered controversy from conservative economists. Their concern was that the system was not encouraging individual responsibility. Their thinking was that many people would not purchase health insurance, so the taxpayer would get stuck with the medical bills.

From that point on, a whole host of Republican congressional leaders called for mandated health coverage. Here is House Speaker Newt Gingrich in 2007 -- “Personal responsibility extends to the purchase of health insurance. Citizens should not be able to cheat their neighbors by not buying insurance, particularly when they can afford it, and expect others to pay for their care when they need it.” An “individual mandate” should be applied.

In 2008, Tommy Thompson, The Secretary of Health and Humans Services under President George W. Bush, said, “Just like people are required to have car insurance, they should be required to have health insurance.” Add to that list of supporters former Senate majority Leader Dr. Bill Frist of Tennessee, and all the Senators who co-sponsored legislation with an individual mandate -- Senator Lamar Alexander (R-Tenn.), Senator Chuck Grassley (R.-Iowa), Bob Bennett (R-Utah), Mike Crapo (R-Idaho), Lindsey Graham (R-S.C.), Judd Gregg (R-N.H.).
Here’s what Senator Grassley said just two years ago on Fox News: “There isn’t anything wrong with an individual mandate, except some people look at it as an infringement on individual freedom. But when it comes to states requiring it for automobile insurance, the principal then ought to lie [be] the same for health insurance. Because everybody has some health insurance costs, and if you aren’t insured, there’s no free lunch. Somebody else has to pay for it….I believe there is bipartisan consensus to have individual mandates.”
As these comments and many others by Republicans and numerous conservative think tanks have pointed out, there is a strong case for personal responsibility. Why should a certain portion of the population ignore their healthcare protection, then have an accident or get sick, and run to the emergency room for treatment, forcing you and me to pay their bill? If we have to pay the piper, then why doesn’t everyone?

There is little hue and cry over mandated automobile insurance. Everyone is required to be insured, so that if you are in an accident, and it’s not your fault, the other guy has to step up to the plate and pay you damages. What’s fair for one, is fair for all. Most of us don’t want to subsidize the uninsured driver, so why would we want to subsidize the irresponsible guy who just doesn’t care enough to buy health insurance? If someone can’t afford the cost, then perhaps there should be a subsidy. But everyone should pay something. That’s called being responsible. And that is why in the past, so many conservative republicans embraced the individual mandate.

What about property insurance? Just try to go to a financial institution to borrow money for a new home, or for refinancing. No property insurance? Forget it. And isn’t it ironic that the same politicians who are opposing government mandated health insurance are leading the cry for property bailouts. No help when you get sick, but members of congress demand that the government cavalry come charging in when a flood or hurricane hits. If you live in my part of the country and don’t responsibly buy flood insurance, then government bailouts are both expected and demanded.

Following Hurricane Katrina, U.S. Senator Trent Lott’s Mississippi beachfront home was destroyed, and he had not purchased flood insurance. So he introduced legislation to provide retroactive flood insurance to victims like himself. He was joined in support by his Senate colleague, Thad Cochran and Governor Haley Barbour. Make the government bail out those who didn’t look out for themselves. But they now strongly oppose any mandated health coverage.

And the flood insurance, itself, is highly subsidized by the federal government. Now catch the irony here. With health insurance, the insurance company will reject you if you have a pre-existing condition. No subsidy and no coverage. But for property insurance, it’s just the opposite. If you live in a part of the country that floods or is prone to hurricanes, your flood insurance is even cheaper because it is subsidized by the government. Go figure.

In testimony before the Senate Judiciary Committee last month, former Solicitor General Walter Dellinger summed up the dilemma well. “There is nothing else in our economy where an individual who has made no preparation can go in and get $1 million of goods and services passed on to them at taxpayer expense.” That means the system struggles with free riders --people who would have society pay for their care, rather than pay for it themselves.

Will the health mandate stand up to judicial review? Right now, each side has two victories in the lower courts. The challenge to the existing mandate is a dead cinch to end up in the U.S. Supreme Court. And it’s also a certainly that Justice Anthony Kennedy will be the swing vote. No good odds on which way the Justice will vote.

Of course party politics plays no role in the current debate. Can you envision the republican Senator looking across the aisle in the nation’s capitol and saying, “Actually, I’m voting against any mandate, before I vote for it, when a Republican is back in the White House?” And you can just hear his democratic colleague retort, “Well, I’m voting for it, after I voted against it, back when you voted for it, when a Republican was in the White House.” Is there any wonder why the country is so enmeshed in gridlock?

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If the administration wants cooperation, it will have to begin to move in our direction.
Senate Minority Leader Mitch McConnell

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the South. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com. The show is televised at http://www.justin.tv/jimbrownusa.