Health Care of 9.6 Million People

Standing in King V Burwell

Two recent stories in the Wall Street Journal (here and here) raise significant queries as to whether or not the people bringing suit against the ACA have standing to even do so.

Legal experts say the fact that Mr. King could avoid paying the penalty for lacking insurance by enrolling in VA coverage undermines his legal right to bring the case, known as “standing.” The wife of a second plaintiff has described her husband on social media as being a Vietnam veteran. The government previously questioned the standing of a third plaintiff on the grounds that her income may exempt her from paying the penalty for lacking insurance, but a lower court didn’t address the issue.

So, why did they bring about this suit?

Mr. King said his challenge to the law is “not about me,” but rather an effort he undertook for his family and others to bring down the health law.

Ah, so he suffers from Obama Mental Meltdown Syndrome....always a sound reason to go to the Supreme Court.

Worse, we are still stuck on the "not letting him win no matter what!!" mentality.

Who Has The Most Anxiety?

At first glance, the Supreme Court's looming decision in the King V Burwell case will cause the president and the Democrats the most anxiety. If SCOTUS decides that the subsidies do not apply to the states that do not have their own exchanges and are being run by the federal government, millions will lose coverage.

Yet, if I were a conservative, I would think for a moment before I began to thump my chest in victory over the president. This recent piece from AP details how Republicans have quite a bit to lose as well from such a decision.

RED STATES IN THE PATH

Insurance losses would be concentrated in Republican-led states, which have resisted "Obamacare." Florida, Texas, North Carolina, Georgia, Michigan, and New Jersey are among those with the most to lose. Residents of blue states that are running their own markets would continue to receive benefits.

"It is not simply a function of law or ideology; there are practical impacts on high numbers of people," said Republican Mike Leavitt, a former federal health secretary now heading a health care consulting firm.

Because the health law's 2015 sign-up season is still under way, it's unclear how many millions of people could become uninsured. Two independent studies estimate around 8 million. Not all the 37 states where the federal government is currently running insurance markets would be affected equally. Some have made progress setting up their own exchanges.

Imagine you are a Republican governor of one of these states and suddenly millions of your constituents lose their coverage. Certainly, there would be some people that would blame the president but there would be plenty that would blame you.

That's why I predict, in what will be most amusing irony, Republican governors will end up putting together their own exchanges should the court rule against the president. Eventually, every state will and should have their own exchange. This way the federal government can be kept out of it to a greater degree and conservatives can claim some sort of victory. 

Corporations Take Control of Women's Reproductive Health

Free Speech and Clinic Safety

Noah Feldman from Bloomberg breaks down the recent SCOTUS decision which allows anti-abortion activists inside the buffer zones that clinics have created in front of their buildings for safety. He notes that a first glance might reveal a big victory for abortion foes. Yet, a closer examination reveals much more.

The crucial element in the opinion — the element that got the liberals on board and enraged the conservatives — is that Roberts said the law was neutral with respect to the content of speech as well as the viewpoint of the speakers. That conclusion protected the possibility of other laws protecting women seeking abortions that pay more attention to what Roberts said was missing here, namely proof that the law was narrowly tailored.

What would be a real world example?

Consider a law banning sound trucks blaring on your street at night. It would probably be constitutional, because the government has a significant interest in citizens’ sleep, and there would be plenty of other times for sound trucks to operate, leaving ample alternatives for communication. It is this standard that Roberts applied to the buffer zone — and that will therefore be applied to other, similar buffer laws in the future.

Essentially, the details of the ruling give fair warning to abortion foes who may be emboldened to shout or threaten clinic patrons. The constitutionality of a ban or a buffer zone is still there because (surprise!) the freedom of speech is not unlimited.

John Paul Stevens v The Gun Cult

Well, retired Supreme Court Justice John Paul Stevens went and done did it. He has taken on the Gun Cult. Here is how he would change the 2nd Amendment.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.

Holy SHEEEIT! Look out!!! Here comes that boiling pit of sewage frothed with a fresh set of bowels blown!!!

Props out to him for having the guts to go that far and shine a spotlight on the people in this country who have very serious control and authority issues. The link above should also be noted for this passage.

He recalls a colorful remark on the topic by the late Warren Burger, who served as chief justice from 1969 to 1986. Responding to the NRA’s lobbying campaign opposing gun control laws in the name of Second Amendment rights, Burger, a lifelong conservative, remarked during a television interview in 1991 that the amendment “has been the subject of one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime.”

Completely agree. I would not go as far as to ban private ownership of guns as Stevens suggests but I do think it is way past time in allowing the assholes of the Gun Cult free reign on the 2nd Amendment. Just like Republican Jesus believers, they are not the sole interpreter of the Constitution simply because they act like the biggest dicks.

My Hair Is Not On Fire

Liberals are running around today with their hair on fire after yesterday's SCOTUS ruling on campaign contributions. The "end is nigh" because there is (gasp!) money in politics. I'm shocked, I tell you, shocked to find out the gambling is going on in this establishment!! Well, I have a few words for my friends on the left who think life, as we know it, is over.

Pay attention to the nuance of this case. If you read the SCOTUS blog link, you can see that there is more transparency now. There is also a larger playing field for individuals, not just mega donors, to get in the game. If liberals really want to have an effect on this issue, they need to push for transparency. Anyone who donates in whatever amount has to be disclosed in the most transparent way.

Consider as well how much money was spent to defeat the president and how it all amounted to zilch. Money isn't as much of a factor as you think given other influences in politics today. Look at the example of social media. Facebook and Twitter are free, right? Anyone can post a video on YouTube. This is what people look at these days and they are more of an influence on votes than millions of dollars of donations. Honestly, the mouth foamers about this law don't understand the digital generation.

This ruling also puts more power back in the hands of the parties and out of the hands of the mega donors. I predict we will see the decline of the Super Pac as a result of this decision.

So, liberals, chill the fuck out! Money has always been in politics and it always will. If you try to ban it, somehow it will find a way to spread around. Keep it out in the open and remove all limits and watch how its effect diminishes.

Tough One

The Supreme Court has a tough one in front of it with this case. Does free speech trump possible physical danger?

A couple of mornings a week, Eleanor McCullen stakes out a spot outside the Planned Parenthood clinic here and tries to persuade women on their way in to think twice before having an abortion. But she has to watch her step. If she crosses a painted yellow semicircle outside the clinic’s entrance, she commits a crime under a 2007 Massachusetts law. Early last Wednesday, bundled up against the 7-degree cold, Ms. McCullen said she found the line to be intimidating, frustrating and a violation of her First Amendment rights. The Supreme Court will hear arguments on Wednesday in her challenge to the law.

Yet...

The state’s attorney general, Martha Coakley, who is the lead defendant in the suit, said the 35-foot buffer zone created by the 2007 law was a necessary response to an ugly history of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.

It's going to be interesting what SCOTUS has to say about this. My first reaction is what difference does a few feet make? Is there some sort of Pavlovian response to having a line drawn the prevents people from committing violence? Before reading their opinions, I say that Ms. McCullen's right to free speech is being violated. It's a public street. People can say whatever they want. If you are tough enough to go get an abortion, you can withstand an extra few seconds of conversation.

Or maybe you shouldn't have been a moron in the first place and used birth control more effectively.

Bring. It. On.

Gay Marriage Gets Supreme Court Review for the First Time

The Health Care Conversation

Here's a recent conversation I had with a Facebook friend who is positively apoplectic about the Supreme Court's decision on health care. I thought I would copy and past some portions of it as it speaks to some of the comments I have received here thus far. His comments are in blue.

Mark, you're missing the point. The Court didn't say that Congress has the power to tax people for not buying insurance because insurance is important and necessary. The Court said Congress can simply tax people for not doing whatever Congress wants them to do. The point is that if Congress can tax us for not having insurance, it can tax us for not exercising or not eating enough green vegetables.

 I disagree. In looking at the brief, it's very clear throughout the entire opinion that this ties to health care and shared responsibility. For example, 


A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.”  The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.


To me, this says that the health care market is unique and sets up a precedent that Congress cannot tax people for not doing whatever it is they want them to do. Roberts details that further. 


Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.


And the fact that everyone should have decent health care doesn't give Congress or the Court the right to trample to trample the Constitution and invent new powers for Congress to achieve a desired end. I agree that those who benefit from receiving health care should pay for it. But that doesn't mean that the federal government, having gotten in the business of providing and paying for health care, has broad power to compel people to buy health insurance.


From the brief... 


None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct.


Further 


The Act, however, bars the IRS from using several of its normal enforcement tools, such as criminal prosecutions and levies. §5000A(g)(2). And some individuals who are subject to the mandate are nonetheless exempt from the penalty—for example, those with income below a certainthreshold and members of Indian tribes. §5000A(e).


So, it's not "broad or new power." In fact, Roberts points out (as does the law), that it is limited power. Roberts also goes to great lengths to point out in the commerce clause section and necessary and proper section that the Constitution does indeed limit the power of the federal government. So, no trampling here certainly. I'd also urge you to read pgs 41-43 of the brief and take note of Roberts reference to Benjamin Franklin's letter to M. Le Roy regarding the Constitution and taxes. 


What if we moved away from an insurance-based model and simply expected that people were going to pay hospital and doctor bills on their own? The cost of healthcare is ridiculously inflated by the comprehensive insurance model, which keeps larding benefits into plans. The government can tax people to put money into a pool available on a means-tested basis for those who can't pay for major health problems. Let people take back ownership for their own health care costs, decisions and priorities. 


The issue I have here is inelastic demand. If services and products were directly available to the public without insurance in the way, what's to stop the supplier from charging a high price. In many health care markets, demand is inelastic because people aren't going to leave the market when the price goes up. The suppliers will know that they have their customers trapped and will undoubtedly act to increase profit. So, these markets would not allocate resources efficiently and consumer surplus would erode. Believe me, I'd love to remove insurance from the equation. My wife and I pay nearly 800 dollars a month for our family! But that would lead to higher prices unless the government got involved and put price controls in place. That also would be detrimental as it would erode market efficiency. 


Don't forget that the Democratic Congress and the Administration argued loudly and repeatedly that revenue in re: the individual mandate was NOT a tax. The Court has declared that it is, so therefore it is constitutional. It's bizarro-world. Again, what practical limits are there now on Congress' power to force people to do whatever it happens to decide is in the people's best interest?


These practical limits are pointed out extensively in the brief as I have listed above. You and I have different sensitivities when it comes to the federal government so we will likely have to agree to disagree here. My hope is that you take some solace in Roberts' words, though:) 


Enumerated powers is effectively a dead doctrine, and now the federal government can do anything that the constitution and Court precedent have not explicitly forbidden. Think about that, and what that might mean when a political party and/or President you don't like get back in power.


Well, this speaks to our differing views on government. Yes, government is indeed bigger today but so is the private sector. I don't see a problem with that. We have a 15 trillion dollar economy and a global marketplace that is in a constant state of change every single day. In my view, having less government in light of these facts (and regardless of who is in power), would be detrimental.


That's it so far. Likely the conversation will continue...

SCOTUS EVE

'Twas the night before the Supreme Court ruling and all through the house, predictions and prognostications were stirring even the mouse! Any thoughts on how it will go? Politico has an interesting piece up that essentially says that if the law is partially or entirely struck down, everyone loses.  

I agree. 

Health Care A Go Go

In the next two weeks, we should be hearing what the Supreme Court of the United States thinks about the Patient Protection and Affordable Care Act. Will they overturn all of it or just parts of it? The political world and, indeed, many others are anxiously awaiting the verdict.

My inkling is that they vote against the mandate but keep the rest of it. But what then? Andy over at eletoral-vote.com has the answer.

If the mandate is struck down, the Democrats have an easier path if they choose to take it. The Court's argument in striking down the mandate will no doubt be something like the government does not have the power to compel people to engage in commerce (like buying insurance) if they don't want to. The solution is simply to structure the mandate differently. Congress could amend the internal revenue code to say everyone has to pay a tax of $1000 to cover the costs generated by uninsured people getting treated at hospital emergency rooms (because Congress has mandated this). However, to help people who are not part of the problem, the same change to the law could give a $1000 credit to anyone who can prove they have health insurance. In effect, this is almost the same as a mandate except that failing to have insurance is no longer a violation of the law. It simply means you lose out on one of the myriad of credits the tax law provides. There is little doubt Congress has the power to tax, so such an approach is likely to be acceptable to Justice Anthony Kennedy, who seems to have acquired the power to veto laws singlehandedly, even though he never campaigned for the job. 

And what of the Republicans?

Be careful what you wish for, you might get it. If, as Republicans are hoping, the Supreme Court strikes down some or all of the Affordable Health Care Act later this month, they will cheer for a week. Then Democrats will pound them on what they plan to replace it with. An answer like "Nothing. The current system works well" is not likely to get many votes among the 50 million people currently uninsured. But despite the real possibility that the Court may strike down part or all of the law, the GOP does not have a plan of its own. 

The problem for the Republicans is that coming up with a minibill that just includes the popular features of the ACA would be a disaster. Allowing young people up to 26 to stay on their parent's plans until 26 would be easy to do--in fact some health insurance companies may do it voluntarily because it means more customers. The tricky part is the provision that allows anyone to sign up for health care regardless of any preexisting conditions. A bill that included that but did not have a mandate for everyone to get health care would bankrupt all the insurance companies in short order since many people would wait until they were seriously ill before getting insurance. Every country in the world that requires insurance companies to take everyone also has a mandate in one form or other.

If this happens, it would be a great example of what I mean when I say that one can win the argument and still lose.

The more I think about this, the more I realize that I'd rather have SCOTUS strike down parts or all of the law so it be changed for the better. The GOP has signaled that they are going to keep the more popular provisions anyway so raising taxes and/or offering tax credits seem much more likely now. Even the public option could make a bold reappearance and pass. It would simply be Medicare for all and that is perfectly legal under the Constitution.

Here is a handy dandy flow chart to help you with all the possible outcomes.

Good Point

OMG!

Did you hear the big news? Obamacare is DEAD! After facing some questions on par with the Spanish inquisition, solicitor Donald Verrilli completely blew it, it's all over, and let's get ready for our new president, Mitt Romney.

Well, at least that's what the "liberal" media said yesterday (even though the actual decision won't be handed down until June). Since when are they all in the tank for the opponents of the law? They keep saying that people are being forced to buy health care. That's not true at all. You don't have to buy it at all. If you don't, you pay a tax, which is very, very Constitutionally valid.

Even the actual liberal media is behaving irrationally (see: hysterical old ladies). They seemed to completely ignore the tough questions that Chief Justice Roberts and Justice Kennedy asked of Paul Clement and Michael Carvin, who are challenging the law. For example, Roberts told Carvin that he was not addressing the government's point, "which is that they are not creating commerce in health care. It's already there, and we are all going to need some kind of health care; most of us will at some point."

And Roberts accepted the fact that the mandate was not an order but a tax. This is important to note because on Monday in response to questioning from Justice Elena Kagan, Verrilli noted that under the law, a person who chooses to pay the tax penalty rather than comply with the mandate will not be considered in violation of the law. So it’s a choice — not a unilateral command. If even one of the conservative justices agrees, he could vote to uphold the law on unexpected grounds. It's entirely possible that you would have four votes to uphold the law under the Commerce clause and two votes to uphold it under taxing power.

Kennedy said the government might be right that the interwoven markets of health insurance and health care are unique. "The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries," Kennedy said. "That's my concern in the case." I also thought it was interesting that Clement acknowledged here that a system of national health care is likely constitutional even though the individual mandate was not.

This brings us to what may happen if the mandate portion is struck down. Robert Reich has an interesting take on this. 

If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions. When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes. If they did this the public will be behind them — as will the Supreme Court.

But how could this happen?

Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law. There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits. But requiring citizens to buy something from a private company is different because private companies aren’t directly accountable to the public. They’re accountable to their owners and their purpose is to maximize profits. What if they monopolize the market and charge humongous premiums? (Some already seem to be doing this.)

All of this makes me wonder if this is the president's back up plan. Not only is he a constitutional scholar but he's a very smart and pragmatic guy. His opponents are being terribly naive if they are assuming that he fast tracked this case without having multiple contingency plans.

The other way to look at all of this is political. If parts of the law are struck down, that takes a galvanizing principle out of the campaign. In fact, if the law is upheld, the base is going to be very motivated to get out and vote for repeal (even though we all know that Romney isn't going to do that if he wins).

So, I guess I'm not really worried either way it turns out. It's too bad that some liberal folks are so worried that they have all but given up because I don't think they are really considering all of the possibilities here. And that's why I'm truly going to enjoy the "winning the argument/proved them wrong" victory dance that the right will do if the mandate is struck down.

Enjoy it while it lasts, folks!

Too Fucking Good!

This just popped up in comments down below in my post regarding Clarence Thomas. I decided to bring it out front because it's just that good!

Even without the other shenanigans in his home town, the Citizen's United decision and Ginny's organization allow Thomas to collect an unlimited amount of cash from corporations under the guise of his wife's salary and "foundation" income. If it looks like a payoff, and smells like a payoff, it is a payoff.

The guy doesn't say anything during oral arguments, doesn't ask any questions, doesn't have an ear for language, and his clerks seem to write all his opinions for him.

He says he doesn't like the adversarial back and forth of the courtroom, but that's exactly what trials and courts are about. He seems to be deathly afraid of putting his foot is his mouth and seeming like he doesn't know what the hell he's talking about. He simply doesn't belong there.

The only reason he's there is that foolish Democratic Senators let the Republicans guilt them into putting an unqualified and incompetent judge on the Supreme Court.

Mega!

Time to Go Buh Bye

I think it's time for Clarence Thomas to either recuse himself from some cases or step down as a Supreme Court justice. He's not fooling anyone anymore. A recent article in the New York Times illustrates this further.

His involvement with Harlan Crow should be more than enough but what's really insulting to the nation's intelligence is Virginia Thomas-wife of the justice. Ms. Thomas is an unabashed Tea Party activist who regularly raises money for their causes. She founded a group called Liberty Central and on their web site she is described as "a fan of Rush Limbaugh, Mark Levin, and Laura Ingraham and other talk radio hosts. She is intrigued by Glenn Beck and listening carefully."

But hey, Ginny ain't on the SC, her husband is...so there is no way that he's biased, right?