Monthly Archives: March 2012

Health Reform’s Day in Court: Don’t Bet the Farm on the Mandate

The constitutionality of the Affordable Care Act, the subject of three days of oral argument before the Supreme Court beginning Monday, could well turn on whether the Court concludes that Congress can compel a citizen to buy a commercial product, in this case health insurance.

At the heart of the Act is the “individual mandate” which President Obama campaigned against as a candidate, and then turned around and supported as president. The mandate was part of a deal with the health insurance industry, which stopped ferociously opposing the Administration’s bill once it became a source of additional business.

The Administration and its supporters contend that requiring people to purchase health insurance is a natural extension of the Constitution’s Commerce Clause. If government can regulate health insurance at all, they say, it can legitimately use a mandate as a policy instrument.

The Administration brief contends that the mandate and the prohibition of discrimination by insurers against people with pre-existing conditions are so logically connected that if the Court finds the mandate unconstitutional it must strike down other key aspects of the act. Otherwise, large numbers of young and healthy people would “free ride” and wait to buy insurance until they got sick, making the whole law financially unviable.

Opponents argue that the mandate represents a new, dangerous, and unconstitutional infringement on liberty. The decision will be treated by commentators as either a huge victory or momentous defeat for President Obama, and either another dangerous over-reach by a right-wing court, or a prudent retreat by the court’s conservatives.

But this may be a complete misreading of the logic and the stakes.

The individual mandate may or may not be unconstitutional, but it’s dubious policy. And it would not be a fatal setback if the Court did find that it violated the Constitution.

The Administration, in my view anyway, has made both a tactical and a Constitutional error in arguing that if the mandate is unconstitutional, so are other key provisions of the act. If the Court were to strike down the mandate but not the rest of the Act, the insurance industry would be all over Congress to find another way to solve the free-rider problem. As my colleague Paul Starr has demonstrated, that would not be difficult.

Instead of being required to purchase private insurance, people without employer-provided insurance or access to Medicaid could be given a choice — either buy affordable insurance through the exchanges, or deliberately opt-out of coverage. But if they opted out, they would be precluded from getting insurance through the exchanges for five years. This use of incentives would be constitutional, and would be sufficient to induce most people to get insurance, but less coercively than a mandate. Starr also proposes that people could pay an annual fee to preserve their right to buy insurance after a waiting period of only a year.

The point is that if the best we can do politically is a mixed system such as the Affordable Care Act, there are perfectly good alternatives to a mandate should the mandate be struck down.

There is also a delicious irony here. If conservatives on the Court were to decide that a federal mandate requiring citizens to purchase commercial products has no basis in the Constitution, it would usefully doom another favorite conservative project — privatization of Social Security. Obviously, if Congress cannot require citizens to buy private health insurance, neither can Congress use tax dollars to require citizens to purchase commercial pension offerings.

At least one very conservative judge has noticed this potential. In his dissenting opinion in the DC Circuit case on the Affordable Care Act, Judge Brett Kavanaugh, widely touted as the next Supreme Court nominee if a Republican is elected president, opined that throwing out the individual mandate might not be such a good idea since it would upend other privatization schemes.

[D]espite the Government’s effort to cabin its Commerce Clause argument to mandatory purchases of health insurance, there seems no good reason its theory would not ultimately extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example.

This did not get much coverage because Kavanaugh’s odd dissent attracted more attention for its other contentions, including the bizarre claim that a president who thought the Act violated the Constitution could just decide not to enforce it.

Readers of judicial tea leaves have noted that one of the High Court’s most influential conservatives, Justice Antonin Scalia, has gone both ways on the issue of the reach of the Commerce Clause. He held that the 1994 Violence Against Women Act was unconstitutionally expansive attempt to regulate commerce, but that the federal regulation of medical marijuana was constitutional. In a 2005 case on marijuana regulation, Scalia wrote: “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general economic regulation of interstate commerce.”

Does this mean that Scalia is likely to side with the Administration in the Affordable Care Act case? More likely, it means that Scalia is one of the Court’s great opportunists, finding constitutional justifications when they support his own policy preferences (no to federal regulation of violence against women, yes to federal suppression of marijuana use.) However, Scalia has undoubtedly read Judge Kavanaugh’s dissent. And he might decide to uphold the mandate lest the Court also block the right’s entire privatization agenda.

One further irony: As a little-noticed amicus brief by two organizations and fifty physicians who support national health insurance points out, if the government had simply enacted a single payer program, it would have been beyond constitutional challenge — because government has an unambiguous power to tax and to use the revenues for public purposes. Medicare is a single payer program for the elderly, and nobody challenges its constitutionality. Toss out the mandate, and single-payer might be taken more seriously.

Bottom line: If the Court were to overturn the individual mandate, one of the worst provisions of the Affordable Care Act, it would be no tragedy. It might well do some wider good.

Robert Kuttner is co-editor of The American Prospect and a senior fellow at Demos. His latest book is “A Presidency in Peril.”

Source Article from http://www.huffingtonpost.com/robert-kuttner/health-reforms-day-in-cou_b_1378782.html

Buying Night Tables and Downloading Chris Brown While Homs Burns

The Guardian got a cache of private emails, apparently from Syria opposition activists, showing that while Bashar al-Assad’s government was slaughtering civilians, blowing up makeshift hospitals and displacing an estimated quarter of a million people, he and especially his wife Asma were busy buying stuff online. She: hundreds of thousands of dollars of handmade furniture,… Continue Reading

The Long Shadow of the Super PAC

The rise of the super PAC has been one of the defining trends of the 2012 election. These non-campaign organizations which, thanks in part to the Supreme Court’s 2010 Citizens United decision, can raise and spend unlimited amounts influencing elections have had a staggering impact on how candidates and campaigns get their messages to voters.… Continue Reading

Obama Super PAC Has Trouble Raising Funds

Vice President Joe Biden warned donors about the might of Republican-aligned super PACs. Photo credit: Wikimedia Commons Last month, President Obama made the controversial decision to embrace the super PAC dedicated to getting him reelected. But that doesn’t mean that his super PAC, Priorities USA Action, is anywhere close to as successfully fundraising as those… Continue Reading

Occupiers Protest in Support of Libertarian Think Tank

Protesters outside Koch Industries’ D.C. lobbying headquarters. Today, United Republic and Republic Report were joined by a passionate group of activists outside Koch Industries’ downtown Washington lobbying headquarters to criticize the petrochemical billionaire Koch brothers’ attempt to take over the Cato Institute. Cato has a long history of fierce libertarian beliefs, widening the debate in… Continue Reading

Shooting To Kill, But Not Really, Though Sort Of

Pennsylvania park ranger Randy Gregg has designed a replica hunting rifle that’s a digital camera, complete with crosshairs in scope, wherein you pull the trigger and take a picture. Called either KillShot or Harmless Hunter – the name seems to be in flux – he says it’s a great way to teach hunting safety and… Continue Reading

What Can 69 Percent of Americans Agree On?

Most Americans think super PACs should be illegal. Graph via The Washington Post A new poll finds that the majority of all Americans and registered voters alike say super PACs, the non-campaign organizations that can raise and spend unlimited amounts influencing elections, should be illegal. Not only did 69 percent of those polled say that… Continue Reading

BP Profits Off of D.C. Influence Peddling

Following the massive oil spill in the Gulf of Mexico that began in April 2010, a group of senators attempted to change the Oil Pollution Act of 1990, which holds an oil company involved in a spill responsible for only $75 million in economic damages. When the scale of the Gulf spill was shown to… Continue Reading