Bad news for the Affordable Care Act

The NYTimes reporting suggests a 5-4 split against ACA is likely:

Justice Kennedy, along with Justices Samuel A. Alito Jr. and Antonin Scalia and Chief Justice John G. Roberts Jr. all asked questions suggesting that they had a problem with the constitutionality of the mandate requiring most Americans to buy insurance. Justice Clarence Thomas, as usual, did not ask any questions, but he is widely expected to vote to overturn the mandate.

As does CNN’s Toobin’s analysis:

This is interesting. Part of the issue is how much of the law would fall if they turn against it? Would we still be able to prevent insurers from dumping patients and refusing to cover chronic conditions if the mandate falls? Will both provisions be struck down? All provisions?

I think a strategic error was made in not describing the penalty as a tax. Because no one doubts congress’ power to tax, and after all, it made sense to tax the uninsured considering as a group they cost the taxpayers $43 billion a year in unpaid medical bills.

The other interesting outcome may be political. Without Obamacare to rile up the base, what issue will Republicans have left come next fall? This was their touchstone, and if the Supreme Court pulls the rug out from under them, they’re going to have to come up with a new form of librul fascism to rail against for November.

In the end this may be an opportunity or a catastrophe for medical care depending on how we are led into the future. The failure of this law may result in a tax-supported single payer system. It may result in expansion of health exchanges to cover the uninsured. It may result in a new national flat tax, like Japan’s, that results in income-based subsidization of healthcare costs. All of these things are clearly constitutional based on the congressional ability to tax.

The worst outcome would be if we saw another 15 year delay in addressing the crisis of rising health care expenditures and coverage for the uninsured. Or, if it became delegated to the states to create individual universal systems as, sadly, most red states have no financial capacity to afford it. Already the southern and para-Mississippi states have higher obesity rates, poorer objective measures of health, worse infant mortality, and higher bankruptcy rates etc., this will likely worsen these disparities. California, New York, Massachusetts (will they lose their mandate?), Maryland and other states which are the major federal revenue generators could probably manage it if they could convince their population to support universal healthcare legislation with additional taxes, but a patchwork approach will create unnecessary complexity. What if a Pennsylvanian gets a surgery in Maryland? What if someone wants to chose an out-of-state hospital, which they very frequently do? What about emergency care for out-of-staters? Will this just further increase disparities between the states until the we see an ever worsening downward slope in quality of life as you approach the Mississippi river? Will states like Texas that can probably afford reform refuse to enact any out of cold-hearted laissez-faire libertarianism?

It’s sad, but oh well. America gets the government it elects.

Comments

  1. #1 D. C. Sessions
    March 27, 2012

    On a long drive looking for radio stations (hey, between Arizona and New Mexico? Seriously?) I kept running across talk radio ranting about how Obamacare has already forced lots of employers to stop offering health insurance to employees.

    Count on it: even if it’s blocked, they’ll blame Obama for the rising costs and reduced availability of health insurance and health care.

  2. #2 Knight of the Normal Table
    March 27, 2012

    The debate is about wether or not the US ederal government in all their slendor and magnificent quest to give more free handouts has the legal constitutional authority to force individuals to purchase a product from a private company or not.

    In other words Mr. Hoofnagle, tomorrow if the federal government came out and told you that you absolutely had to purchase a brand new Corvette by April 30 or face fines or jail time, how would you feel about that?

    This is the same thing. Basically the government is braindead. They have overstepped their bounds. They have the power to regulate INTERSTATE conmmerce, not individual purchase decisions. No matter what some bald fat judge ina mock courtroom may decide, the government is WRONG! End of story. It is unconstitutional for this particular government to force an individual to purchase a product froma private company.

    Besides if I have to purchase this health insurance then no person living inside of the United States should get off free. Obama has passed waivers to some indivuals and companies and groups – mostly left wing Obama supporter labor unions. There should be no waivers. Either EVERYONE has to do this or NO ONE has to to. That includes illegal aliens as well. This law applies to every living person in America and cannot exclude some past college hippie commie terrorist buddy of the president or someone in Washington. Also this law should apply to every member of congress and Senate.

    As a matter of fact, I move to pass a law that says every senator and every congressman has to purchase a 50 pound sack of peanuts by April 30. if they fail, we fine them or jail them.

    See mandates are stupid. Those who came up with this illegal quest for power should be stripped of their citizenship and exiled to a small icerberg preferrably in another galaxy.

    Better yet. hand them over to NASA for the next manned mission to the Sun. Oh, well there will be plenty of time for heat in hell where these commie overlords are going.

  3. #3 Composer99
    March 27, 2012

    D.C. Sessions was right – and we didn’t even need to wait ’till November.

  4. #4 Childermass
    March 28, 2012

    They should have added x dollars to everyone’s income tax with an x dollar deduction if you get insurance with extra deduction for low income people and nice tax write-off for businesses.

    This would have been completely within the tax code. And the only way to conclude it was unconstitutional would be be to conclude most of the tax code that already exists is also unconstitutional.

  5. #5 MarkH
    March 28, 2012

    In other words Mr. Hoofnagle, tomorrow if the federal government came out and told you that you absolutely had to purchase a brand new Corvette by April 30 or face fines or jail time, how would you feel about that?

    It’s interesting, I seem to have lost my degrees. Anyway, the difference is one day I won’t need a corvette and my failure to buy one will cost the taxpayers an additional 43 billion a year. And there are no jail time penalties for no purchase, it’s a tax penalty that is commensurate with the cost of the uninsured to us, the responsible taxpayers. Your lack of personal responsibility is hurting the responsible.

    This is the same thing. Basically the government is braindead. They have overstepped their bounds. They have the power to regulate INTERSTATE conmmerce, not individual purchase decisions.

    It’s interesting that the plaintiff went bankrupt, in part due to medical bills, which she generated in 3 different states. Also this argument conflicts with established caselaw of Wickard and Raich.

  6. #6 Onkel Bob
    March 28, 2012

    Without Obamacare to rile up the base, what issue will Republicans have left come next fall?

    That’s an easy one, the issue will be revival of the health care proposition. The left will argue that we need to elect a sympathetic Congress and President to restore and repair, the right will argue that we need to elect a Congress and President that will prevent that action.

    I am of the opinion the health care bill was fundamentally flawed, and that striking it down represents an opportunity to repair and restore. Simply extend Medicare to all citizens and be done with it.

  7. #7 Ronalds545
    March 28, 2012

    The problem with healthcare is costs that are out-of-control. Obamacare will actually worsen the problem. Providing more money to healthcare providers lessens their incentive to control costs. The consumer needs to have more skin in the game (i.e., their own money on the line) to give them an incentive to demand quality care at affordable prices.

  8. #8 MarkH
    March 28, 2012

    Sorry Ronalds, every single analysis, from the CBO, to data from initial implementation of medicare bundling, and the fee-for-service reforms, and caps on premium hikes included suggests otherwise. Not to mention, similar systems worldwide cost far less than ours per capita. It is repeated like mantra that Obamacare will cost us soooo much money. No, the CBO predicts it will result in deficit reduction.

    And the consumer still has money on the line in the form of co-pays as it is still insurance based.

    Every year we don’t implement a universal system, the costs of healthcare have inflated at about 5-7%, if we had instituted Hillarycare 15 years ago, or Obamacare today, estimated increases would have been about 3% per year. See the McKinsey study.

    There are systems that rely on individual health savings accounts with catastrophe insurance provided by government – see Singapore. However, it’s costs per capita are roughly equivalent to both single-payer and private insurance based universal systems.

  9. #9 SLC
    March 28, 2012

    As I predicted in a previous thread on this subject, the court’s decision will be 5 to 4 with Kennedy supplying the 5th vote for one side or the other. The consensus is that Kennedy, based on his questioning, may be leaning nay.

    The notion that Roberts might vote aye is piffle. He is as big a fascist as are Scalia, Thomas, and Alito.

  10. #10 D. C. Sessions
    March 28, 2012

    The notion that Roberts might vote aye is piffle.

    Roberts won’t be the fifth vote to uphold, but he might be the sixth in order to write the decision.

  11. #11 Michael Simpson
    March 28, 2012

    The link to the New York Times article doesn’t work.

    Anyways, it’s really down to Anthony Kennedy, and according to the oral arguments on Tuesday, he didn’t appear to be in favor of the individual mandate. Many of their questions related to whether they could find one portion (the mandate) unconstitutional but keep the law. That might not be a bad idea, although the whole cost of the uninsured problem remains. However, if the majority of the law is upheld, maybe the Democrats and Republicans can figure this out. Wait a minute, I’m skeptic, and I reject fairy tales outright.

    One minor piece of hope: sometimes the Justices questions do not actually reflect their point of view. And apparently, Obama’s Solicitor General needs to be fired, he was that incompetent. Anyways, we’re betting on success based on the single vote of a Reagan appointed justice.

  12. #12 harold
    March 28, 2012

    I’m less than enamored of mandates for purchase of current corporate health insurance.

    I support universal health coverage. As has been mentioned here before, the better Western European models, such as the Dutch one, do have a major role for private insurance, but in a way which is entirely different from the practices of US health insurance companies, which amount to supporting almost absurd inefficiencies by denying coverage as often as possible, including to some faithful premium payers who get really sick.

    The Canadian model, which is heavily US-influenced and is not far from a “make Medicare universal in the US” model, is the second worse in the rich world, by many standards, especially cost. Still, as a US-Canadian dual citizen, I’d take just making Medicare universal as a major step forward. Others might view that as locking in a system that is less good that what we could otherwise do. But that is not my point here today.

    My point here is – Someone is saying Roberts won’t “be the fifth” to overturn a law associated with Obama? Of course he won’t. He’ll be the third or fourth. “Chief Justice” status notwithstanding, Scalia is the king of the right wing section, Thomas is the duke, and Scalia and Alito are the third and fourth, probably with Alito fourth but who can be sure? Anyone who believes that the Not Fantastic Four are anything other than right wing partisan stooges who function to declare any post-modern right wing ideological position to be “constitutional”, however blatantly insane such a claim may be, after the display they have put on so far, is, well, non-existent. Everybody knows the score, some people just dishonestly and coyly pretend not to understand, because in secret, they smirkingly approve.

    Kennedy is the fifth.

  13. #13 Knight of the Normal Table
    March 28, 2012

    Mr. Hoofnagle:

    First of all I refuse to comply with the standard recognition of degrees presented prior to one’s name as it is usually meaningless. It’s just a piece of paper indicated that you learned what someone else put into your mind.

    Second. I do have personal responsibility. I have health insurance becuase I choose to have it. As an independent sovereign individual I choose to have health insurance. What I do is none of your business or the government’s business. They think it is, but it is not.

    Now, talking about personal responisbility … I know those whom you speak of that do not buy insurance becuase they “cannot afford” it. These “poor” people that you speak of usually own the newest cell phon complete with every feature available, they usually have cable or satellite tv, buy groceries like they are buying for a family of 25, and yet can still afford gold teeth, expensive shiny wheel for their cadillac or Bucik or Lincoln. So, Mr. Hoofnagle, you are telling me that someone who has all of these extra luxueis cannot sacrifie a godl tooth or cable television or shiny wheels for their pimpmobile for the sake of health insurance?

    Also the figure if 50 million uninsured is wrong. 12 million of those are illegal aliens. They don’t count. If our government followed the law of the land and sealed the border and walled it off and militarized it we would not have 12 million illegal aliens abusing the emergency room medical system now would we?

    Sure there are poor people that cannot afford help and I am all in favor of helping true poor people but the minute I see some pimp with his new $150 shoes and his new boom box in his new cadillac with shiny wheel and the newest cell phone with the most expensive plan available talk about how “poor” he is it makes me sick to my stomach. People like this should NOT receive one penny in aid. They are plenty well off enough to buy insurance they just choose of their own free will to think that fancy wheels and jungle music and gold teeth are more important. That being the case, let the go hungry for while and see if they get their priorities in order.

    Priorities out of order is the case most of the time.

    Also doctor and hospitals charge too much dmaned money for shit that pateints rarely need. The more insurance you have the more they charge. If the feds want to stick their nose up someone’s ass, they shouldd art by sticking it up doctors’ asses first and placing a limit on how much money doctors and hospitals can charge for services. Oh, and no different rates for insured or uninsured. All tests costs the same.

    The way to beat the ragged criminal medical mafia is to do this: If you go into the emergency room tell them you have no insurance. Get your treatment and put the bill on a credit card. Then file the visit with your insurance company. It saves you and the insurance company a ton of money. The hospital and the doctor charge much higher rates for insured patients, so beat the system!

    As a matter of fact I agree that hospitals should publicly list what everything in that hospital down to the lights bulbs actually costs the hospital and then out beside it print how much is charged for that item. This should cuase some riots! Ever get Tylenol froma hospital staff. One Tylenol will cost you $8.00. I can buy a whole damned bottle for $4.00. They are making several thousand percent profit – more than your feared insurance compnay.

    Now, Mr. Hoofnagle how would you like to go to the store tommorrow and see the prices of everything raised 1,000%? Hospitals can do it why can’t Walmart? Why would Walmart not charge $800 for a bottle of Tylenol? I do not understand. That is what hospitals charge.

    it is hospitals and doctors that are the cause of your “crisis” not the insurance company. They are the cause for the high premiums.

  14. #14 Art
    March 29, 2012

    Irony is that, despite the fact that many of the original founding fathers voted for a law mandating sailor have insurance, the individual mandate may be declared too much for the government to ask of citizens. But simple declaration of a single-payer system, essentially eliminating private health insurance entirely, is upheld by all legal scholars as imminently legal.

    In other words a half-measure hybrid structure that allows both private insurance and government organized insurance pools to exist side-by-side may be impossible but scrapping private health insurance and erecting a single payer system is legally sound.

  15. #15 Juice
    April 3, 2012

    If you want a mandate, just make a tax deduction for buying insurance. Done. There are already federal and state mandates to have children and a mortgage. I pay massive tax penalties for having neither. Your welcome.

  16. #16 Juice
    April 3, 2012

    Also this argument conflicts with established caselaw of Wickard and Raich.

    These were terrible decisions that need to be overturned. The constitution says that Congress has the power to regulate what is commerce among the several states. These decisions gave Congress the power to regulate anything that merely affects interstate commerce. The problem with that power is that everything in any economy in some small way affects everything else. So by giving them the power to regulate things that merely affect interstate commerce, these decision gave Congress the power to regulate everything. That’s simply not constitutional.

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