HCR Struck Down in Fl.
I’ve avoided blogging about the HCR litigation, because the real action is obviously in the Supreme Court, which won’t get to it for a little while. But the willingness of Republican-appointed federal district judges to strike this law down is interesting. The latest is the district court in the Florida litigation. The idea that the government can’t — in principle — force you to buy a commercial product is, to me, laughable. Ever heard of Social Security? Medicare? There is such an easy way to justify the individual mandate under the tax power. And I find the Commerce Clause powers challenge to the mandate strangely formalistic in its reliance on a distinction between acts and omissions. Even on the Commerce Clause front, the holding in Wickard v. Filburn really does seem to dispose of the case, since that case also involved the regulation of the failure to participate in a market (i.e., production of corn for home consumption that allowed the farmer to bypass market transactions). That said, precedent is as precedent does. And so the challenge raises interesting questions about the intellectual integrity of certain conservative members of the Supreme Court. Scalia was content to rely on Wickard to uphold criminal prohibition of marijuana use and possession (see Raich, 545 U.S. at 37 n.2). I have heard colleagues argue his concurring opinion in that case provides useful insights into how he will vote in the inevitable HCR case. I have my doubts. Maybe I’m too cynical, but I would not be at all shocked to see the Supreme Court split 5-4 on this, though I won’t venture to guess who will get the 5.
But Obama said: “It’s not a tax” so how can we talk about “tax power”.
Jim —
But the Republicans say it is a government take over of health care, so how can it be buying a private, commerical product?
But more seriously, Health Care Reform has prevailed in some court considerations (or objections have been dismissed out of hand for lacking merit or standing) while even given the opportunities to “forum shop” the opponents of health care have so far only found two judges, both for whom have affirmed every part of the law save one.
I don’t think Health Care supporters have much to worry about.
Won’t venture to guess who will get the 5?
Why not? Simply point out which of the justices were appointed by Republicans. Simply and simplistically dismiss the constitutional issues as mere partisan politics by right wing extremists.
Should be pretty easy then to guess how this will turn out.
I think the commerce clause aspect of this is interesting; I said in my article on FOCA last year that the law was in flux on this point; I find it hard to reconcile the SCT’s big opinions on this topic.
So it’s ironic–some of these problems because the legislation was conservative; NOT nationalized health care. if the govt had simply said, “You’re all getting access to health care,” and paid for all this through progressive taxation, we wouldn’t be facing this same problem (though there would be others).
The idea that the government can’t — in principle — force you to buy a commercial product is, to me, laughable. Ever heard of Social Security? Medicare?
What commercial products is the government forcing people to buy in those instances?
Here’s a totally ignorant question: can the Supreme Court toss out only *part* of a law, or does it have to throw out the whole thing if one part is unconsitutional?
Ann-
As to the merits on the procedure for the Supreme Court, I have no idea. But even if they were able to strike down only the individual mandate, that would be enough to demolish the whole system. If it is not possible to preclude people for pre-existing conditions, and there is no requirement for purchase of a plan, then the healthy can just wait until they get sick before they purchase insurance. This would mean that the only ones paying into the system would be those who are probably taking out far more. This would cause the whole thing to collapse. The individual mandate is required if we aren’t to have a complete takeover of health care by the federal government or return to the status quo. So on this issue, even if the court is able to strike down just this one part, it’s de facto striking down the whole thing.
Stuart, I’m not sure I understand the point of your question. Is your point that retirement insurance and health insurance for seniors are not commercial products, or instead that they cease to be commercial when you are forced to buy them from the government? If the latter, do you mean to suggest that the Constitution gives government the power to force you to buy a commercial product from itself but not force you to buy it from any number of private providers? And, if so, why would that be?
The government forces you to buy car insurance, no?
Speaking of politics, interesting to see the tail behind the wagging dog:
http://thinkprogress.org/2011/01/31/vinson-frc/
Ann, I’m not an expert but I know the judge in Virginia just struck down the individual mandate, and that is not unusual — that one part of a law can be struck down. What seemed particularly unusual about Vinson’s ruling is that he said striking down one part vitiated the entire thing.
A single payer system would be constitutional, and the market oriented solution that passed is not?
So what are the chances that the individual mandate would be struck down, and a single payer system put in to replace it?
David — those are state law mandates, as far as I’m aware. And so they are not limited by the Commerce Clause, since states enjoy a broad police power that the federal government does not. I have also heard some people differentiate auto insurance on the ground that driving is optional. I think the better comparison for purposes countering the “individual mandate as unprecedented intrusion on personal liberty or limits on federal power” canard is with mandatory federal programs that force you to buy government-provided commercial products.
Edward and David- Respectfully disagree. Medicare and SS are not insurance programs that one buys from the government. They are welfare programs provided to certain groups paid for by taxation on workers. I, as a taxpayer, am not purchasing anything when the money is taken out of my paycheck and given to the elderly (To avoid any confusion, I support both of these programs) and have no guarantee that they will be there for me in 40 years when I am eligible for the program. HCR, however, requires I enter the private marketplace and purchase something. The difference between this and car insurance is that I have the option to simply not drive to avoid paying the tax. There are many people in urbanized areas who do.
As to the question about why the whole bill would be struck down if the individual mandate is rejected, and Cathleen can probably answer this better than I can, is that the judge is required to decide if implementation of the bill requires the part in question in order to function. If it does not, then the rest of the bill can stand. If so, the entire law is struck down. Obviously a tricky task.
Finally, I think it’s worth noting that the judge in Virginia did reject the other conservative argument that HCR imposed an unreasonable burden on the state. The judge stated that the states have the option of just opting out of Medicaid, as I believe Texas has considered doing.
I was unclear above, if the bill does require the part of questionable constitutionality in order to function, the entire bill is struck down. If not, the remainder of the bill stands.
“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that, ‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,’” Judge Vinson wrote in a footnote toward the end of his 78-page ruling Monday.
Words that come back to bite Obama in the A**.
This is not surprising to me. I agree with Cathleen, I think that the federal government should have opted for a nationalized insurance program paid for by the government. I realize that Great Britain and Canada have their particular issues and problems with socialized medicine but at least I have never heard horror stories like I hear in the USA.
A lot of benefits to business with socialized medicine. Employers do not have to pay any insurance premiums for employees saving them thousands of dollars.
Anyway the American people will do what is right and “Obamacare” is not going away. It will just be reformed and reshaped but it was inevitable. Access to health care when they need it should be a right of citizens.
Eduardo, thanks for the state v. federal differentiation.
The argument that car insurance is optional doesn’t seem to hold, in that one has the option of driving a car but one does not have the option of using health care. Everyone uses health care services, and if you are going to use it then that would seem to convey a moral and legal obligation to help pay for it if you can.
“The government forces you to buy car insurance, no?”
Oh please, please David, stop with that lame one – ugh.
The government does not “force” everyone to buy car insurance. Buying car insurance is a condition of owning a car. People who do not have cars (many, many San Franciscans and New Yorkers for example) are not “forced” to by car insurance.
The problem with Obama-care (as it is now) is that it is too much on the side of existing insurance firms. Obama-care as it stands is not like Social Security – at all. It forces all of us to buy health insurance form approved private firms, approved in that they will have already bribed the government in order to get on the list of “approved” insurance companies. Courts have long held the government cannot force us to buy anything.
Since David invoked cars, let’s take another view; highways.
We all use roads and so we are all taxed accordingly, to pay for the building and maintenance of our hi-ways and by-ways. Everyone understands that good roads help society generally, and for the most part the road taxes and fees are fair enough. Truckers pay higher road-use fees than private cars, lighter cars pay lower fees than heavy cars, etc. If you want more deluxe, faster roads, you pay a toll for limited use roads. If you are rich enough and prefer, you can build your own private drive or street.
We all use the health care system – all of us. Therefore a national health care system could be considered to be in that respect, like the roads; good healthcare helps society in general. Tax everyone and give them the basic national plan; basic, minimal health care coverage.
Then, if people want more deluxe medical insurance, they can purchase that in the free market, as per their preference, and their individual ability to pay.
As a union man, I could see how once everyone in the country has a basic national medical plan, then any additional coverage could be negotiated during contract talks. Or perhaps the AFL-CIO might want to go shopping for all its membership. Maybe, because of common interests, individual trade unions (IBEW for example) might offer medical insurance for their members.
It might work out in various ways, but it seems to me the only constitutional way to have national health care is to have basic health care under a single-payer system as a basic, minimal but firm foundation.
People could then build upon that government run “foundation” (i.e., national health care policy) and customize their own health care as they please and as they (individually) can afford.
This is why Predient Obama should not have left such an important matter to Congress. He should have worked up his own plan and handed it to them. Congress men and women are not good at think through complex ideas, much less developing important national programs like this. They think too narrowly and are too self-interested.
Before the election of 2012 PR major campaigns start at the end of this year, there’s only a small window for neded and useful legislation to be brought forth from Congress.
Instead, much more time will be wasted on pulling down “Obamacare” which apparently will fall to the Supreme Court.
And we’ll just contune the divided and divisive commentary as we see already in this thread.
“Here’s a totally ignorant question: can the Supreme Court toss out only *part* of a law, or does it have to throw out the whole thing if one part is unconsitutional?”
Ann and all,
The TPM story that Eduardo linked to in the original post includes the following link. It appears the applicable legal term is “severability”. This article suggests that it was an oversight by the Democrats that a severability clause was not included in the legislation.
If that was an oversight, this Florida judicial decision suggests that it is coming back to bite them.
http://tpmdc.talkingpointsmemo.com/2010/11/conservative-suit-against-the-mandate.php
It was always my understanding that the Health Care of all citizens is a RIGHT of the people, not a just a frill for the justice system or legislators to negate. After all—THEY all have great health care.
Thanks, Jim P. This is such a mess. But it could be a blessing in disguise — maybe it will force us to have a single payer.
Recently I actually saw a reference to “popular” parts of the bill. Before it was passed all I ever heard was that the Democrats were forcing it through because their base wanted it. Now it seems that it has support across party lines. I also saw that though a majority said they didn’t want the system, majorities also want parts of it. I think that means people don’t want to pay for it, but they want the benefits.
“But it could be a blessing in disguise — maybe it will force us to have a single payer.”
The fly (elephant) in the ointment in the short term is that any major changes (changing to a single payer model) or even relatively minor changes (amending the legislation to add severability) would need to get through a Republican House that is more intent on repealing HCR completely.
Eduardo,
What exactly is so laughable about the notion that the government cannot force you to buy things you don’t want? Are there any reasonable limits to what the government can force us to do? Should the Amish, who have always taken care of themselves, be forced into our insurance schemes? Don’t we have a right to be left alone by the state?
I concede that the Republicans are hypocrites on things like drug laws (and a lot of things) but a broken clock can still be right twice a day. And social security and medicare are unconstitutional too, and whether they are not not does not change the fact that they are violations of personal liberty.
Peace in Christ
CKH
carolynhyppolite.blogspot.com
Where were the Cons when Romney signed the mandated health care in Mass.? Since he is front runner in Republican 2012, I guess the Cons will have to go M. Bachmann!!!!… Anyway if the Supremes overreach again they will weaken the Court as a balancing institution for a long time..
Jim.P. “that it is coming back to bite them’. Dems know no mandate and the whole bill is worth nada. So you think the Supremes will nullify ‘kids’ to age 26, and pre-existing conditions? If so, count on Dems with both Houses and the Executive in 2012..
Carolyn – you are right – social security was supposed to be temporary – I could see stepping in at the time for temporary measures (until they found a better way), but this monstrosity of social security and medicare (the way it exists) is killing us – additionally it has forced us to be an institutionalized dependent people to an inept federal government in the health/retirement area.
jim s. obviously you are not an AARP member.
You are devoid of insighti nto senior citizen issues, including their concerns about SS funding Medicare/Medicaid and your descriptives “institutionalized dependent people” and “inept federal government” are both gratuitous and ignorant.
There is nothing more permanent than a temporary government program, Jim :)
CKH
“A single payer system would be constitutional, and the market oriented solution that passed is not?”
Actually, you could make a pretty good argument affirming that irony.
Social Security and Medicare are inapposite as they’re not private goods which citizens are forced to buy, but transfer payments; and on this model, a universal single payer system would be more congruent with a limited understanding of congressional power then, well, programs like Obamacare and Romneycare. In this respect, I think Prof. Kaveny is correct.
The difficulty with the argument that the compelled purchase requirement is constitutional as an exercise of the commerce clause is that it suggests an unlimited writ for Congress. If Congress can compel a citizen to engage in economic activity – to buy a product – one must answer where this power stops. And so far, government lawyers have not had a compelling answer to that question. And it’s one they have to answer. Everyone – liberals and conservatives – have a vested interest in knowing where the limits on congressional power are.
The old set of healthcare arrangements was very flawed. Everyone here agrees on that, I think. But it seems that in their desperation to pass something, anything, advocates for the health care bill opened up a larger can of constitutional worms than they anticipated. We’ll find out how many worms escape when these cases result in an inevitable ruling by the U.S. Supreme Court sometime in 2012 or 2013.
R.M. Lender; ‘If Congress can compel a citizen to engage in economic activity – to buy a product – one must answer where this power stops. And so far, government lawyers have not had a compelling answer to that’
Well I do.. The Feds have the power to come to your house, put you in a uniform, give you a gun and land you on the beaches of Normandy. Or if you are Japanese pick you up put you in the interior of the USA and apologize years later.
So compelling ‘gamers’ to stop from gaming the health system by showing up for free care at Emergency Rooms is no big deal.
Ken, I’m not sure what is so lame about the car insurance analogy, or really any insurance. If you are going to use a service and product, you can be forced to buy insurance for it. No?
David,
You are only forced to buy car insurance to cover others, not yourself or your car. This is to insurance that you are able to cover damages that you have inflicted on others. Furthermore, the government has no way of knowing that you did not buy car insurance unless you are pulled over in which case there is no arguing that you are not using the service. The government has no way of knowing whether you have an aversion to hospitals, prefer alternative medicine, or whether you have enough personal wealth to cover your medical expenses and cannot assume that you will be a burden on the system.
None of this is to say that I agree with the government coercing anyone to buy car insurance but there is a significant difference.
Peace in Christ,
CKH
carolynhyppolite.blogspot.com
Little Bear – Of course you are correct that people have a right to medical care when they are sick. That is not the same as saying people have a right to health insurance. How to pay for everyone who needs medical care is the question at hand.
Congress developed this current plan (Affordable Healthcare Act 2010) and frankly it is a 2000 page unconstitutional mess.
I do not understand why we would not simply establish a base-level of health care; a national plan that is minimal, but robust enough to provide basic coverage to everyone living here – citizens and indocumentados alike. This would be paid for via national medical services tax, most likely something that would be added to your income or social security tax, and small fees at points of service (at the doctors office).
Then if anyone wants some premium features, a more deluxe health care plan, they can go out and buy that on their own.
Have the government provide the base, and keep private insurance companies out of that portion. Private insurance firms could tend to selling adder insurance riders and more deluxe plans that would piggy-back on the basic national plan.
The problem with the plan Congress passed (and President Obama signed) is that involves (relies on) the government telling all of us that we need to purchase insurance from a list of “approved” private insurance companies. In addition to running contrary to the Constitution, the current plan is sure to lead to fraud by way of private insurance companies buying their way into the system via bribing Congress men and women.
We need to have the sort of thoughtful national discussion we should have had last year. One example (mentioned before) is the highway system. We all agree good roads help society function. We all use the roads and pay taxes and fees accordingly. We can all agree then, that basic healthcare helps society function and moreover, helping those who need medical care is nothing less than our Christian duty.
With that in mind, it seems clear that we would set up a tax & fee system that would fund a basic national heath care plan. It would be basic but it would be something. Those wanting more bells and whistles than the basic plan offers could then just purchase whatever sort of extra insurance they prefer via the free market.
If the purchase mandate is declared to be unconstitutional (and if this has been already addressed above – I haven’t slogged through yet – I apologize) and people are free to choose whether or not they purchase insurance, then hospitals should (1) be free to choose whether or not to provide healthcare to the uninsured, or (2) if they continue to be mandated to provide healthcare to all comers, then they should have the legal authority to take a lien against any assets the uninsured have, including garnishment of wages.
There is no reason that people should continue to be free to “game the system” just because they don’t want to buy insurance.
We are talking about people who have the wherewithal to purchase, but don’t like the idea of anyone telling them what they should do. I personally don’t want to contribute to the moral dereliction of these rugged individualists who will still rely on someone else to haul their chestnuts out of the fire when they are in trouble.
We have a deal, Jimmy Mac :).
Peace,
CKH
Shocker: A Court Decision Tinged with Politics (The New Republic)
•Jonathan Cohn
•February 1, 2011 | 12:00 am
http://www.tnr.com/blog/jonathan-cohn/82545/vinson-ruling-affordable-care-act-mandate
“This article suggests that it was an oversight by the Democrats that a severability clause was not included in the legislation.”
Wait…could it be…gasp!…that ObamaCare was rushed through without due consideration, much less with the consensus of the American people needed to support the largest government program since Medicare? And that the final push was accompanied with outright bribes to buy the votes of wavering Senators?
Pushback against this legislative atrocity is completely justified even without reference to the merits of ObamaCare itself…the process used to pass the bill was a mockery of legislative due process.
As for Single Payer, Obama would have loved to pass that instead. But there was/is no support for it at the level required to even bring it up for debate. Not making any judgment on Single Payer, just stating a fact. Anyone who thinks SCOTUS tossing out ObamaCare is a blessing in disguise because it might lead to Single Payer has to have been comatose during the healthcare debate last year.
On National Review’s “The Agenda” blog, Avik Roy quotes from the Florida court opinion to demonstrate that Judge Vinson is persuaded that the omission of the severability clause was intentional on the part of HCR’s Democratic sponsors:
“[Judge Vinson] notes (p. 67) that a prior version of PPACA contained a severability clause, and therefore suggests that the omission of such a clause in the final bill was intentional:
” “The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law…In other words, the severability clause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming. Indeed, as noted earlier, even before the Act became law, several states had passed statutes declaring the individual mandate unconstitutional and purporting to exempt their residents from it.”
“Vinson points out that it is advocates of PPACA who have repeatedly argued that the individual mandate is necessary for the proper functioning of the law. “In fact, [the defendants] refer to it as an ‘essential’ part of the Act at least fourteen times in their motion to dismiss.””
http://www.nationalreview.com/agenda/258514/florida-v-hhs-could-become-landmark-individual-liberty-avik-roy
Jim Pauwels: is the implication that severability was removed to make it harder to find portions of the law unconstitutional (and thus making it more likely to remain in toto)? If so, how cynical…and possibly foolish in light of this decision.
As for the Constitutionality of the individual mandate, perhaps we can defer to Constitutional law professor Barack H. Obama, as cited by the Florida judge in his ruling:
“Indeed, I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that “if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.”
“There is no reason that people should continue to be free to “game the system” just because they don’t want to buy insurance.”
The Massachusetts mandatory health insurance law enacted in 2006 offers a laboratory for outcomes on the individual mandate, including gaming the system by accepting the penalty. See:
http://en.wikipedia.org/wiki/Massachusetts_health_care_reform#Outcomes
“Approximately 3% of taxpayers were determined by the Commonwealth to have had access to affordable insurance but paid an income tax penalty instead. Approximately 2% of those eligible were determined not to have had access to affordable insurance, and a small number opted for a religious exemption to the mandate.”
A religious exemption! Now we’re talking. This could be like those Church of Body Art devotees which allows them to be tattooed like circus freaks and still have a right to work the counter at Macy’s because of their “religious beliefs” ;-) More seriously, perhaps Catholics could be exempted unless a Stupak-style amendment is added to ensure paying the individual mandate does not pay for abortions.
Judge Vinson mentions Boston Tea Party in his decsion… game,set, match for overturn.
“Wait…could it be…gasp!…that ObamaCare was rushed through without due consideration, much less with the consensus of the American people needed to support the largest government program since Medicare? And that the final push was accompanied with outright bribes to buy the votes of wavering Senators?”
I don’t know about any bribes, but, I agree that the current health insurance “fix” was rammed through without due consideration. I would further contend that its actually working is very iffy given that it is based on no other successful system that exists elsewhere.
The reforms have made health care insurance more affordable and available for children and young people. We do qualify for assistance, which pays for our son’s asthma meds and treatments, which is probably a good deal, all things considered, b/c it keeps him out of the hospital, a cost that would bankrupt us and be passed along to taxpayers.
However, we have seen insurance premiums rise from “unaffordable” to “exhorbitant” for those of us in late middle age. I can afford to pay for a yearly check-up, meds, and routine lab work. I no longer agree to get any tests that require sonography, CT technology, or mammography because a) I can’t afford them and b) if they showed a catastrophic illness, I couldn’t pay for treatment.
I like the idea of having access to some level of basic care such as Ken suggests. I’d further suggest that it be put on a sliding scale; we don’t need free care, we need lower-cost care.
I like even better the idea that local doctors and hospitals would work out some kind of arrangement to provide a kind of pro-bono clinic (again on a sliding scale) for low income wage earners in the community. We have something like this in our rural area, but it’s only twice a month, and if you’re not among the first 40 people in line by 7:30 a.m., you won’t get seen.
There are lots of alternatives that were never explored and should be.
Hello Ed,
The Feds have the power to come to your house, put you in a uniform, give you a gun and land you on the beaches of Normandy.
Sure, subject to some restrictions. (And to some continuing dissent.) But no one has ever claimed the commerce clause as authorization for that.
Bob Nunz – what is a senior citizen for you Bob – is it when you start depending on the federal government for all your needs- that is what I meant by institutionalized – I am not a member of AARP (nor want to be) although I am almost 60 – I have a wonderful retirement with health care benefits which will then disappear when I reach 62 because I am forced into medicare – I will take your rude personal remarks and chalk it up to you having a bad day – try charity toward those who think differently than you – by the way, instead of the “theory”, I worked for the federal government for 23 years and my view from real-life experience is that half the employees I supervised were inept – during cost-crunching, I once asked Washington to cut my staff in half, and they refused – probably needed them for the next election P.S. I hope Carolyn sticks around on the blogs!!!
“However, we have seen insurance premiums rise from “unaffordable” to “exhorbitant” for those of us in late middle age. I can afford to pay for a yearly check-up, meds, and routine lab work. I no longer agree to get any tests that require sonography, CT technology, or mammography because a) I can’t afford them and b) if they showed a catastrophic illness, I couldn’t pay for treatment.”
Jean – I am very sorry for your situation. This is all because we’re in the transition phase, correct? I.e. at some point in the next 2-3 years, the health insurance exchanges will be set up, and that will hopefully drive premium costs downward? And perhaps you may qualify for a subsidy as well?
The law of supply and demand is: if you force millions of new customers onto insurance rolls, you’ve increased demand for health insurance. If supply (number of insurance companies with a finite appetite for risk) stays roughly the same, then price will absolutely go up.
Jim, I offer my own example so people understand the human impact, not just the numbers. I’m luckier than most.
Two years ago, a close friend was diagnosed with a deadly form of leukemia. Several of us worked to get her on disability and Medicare when she had to quit working. And I have to say the “bureaucrats” were great. They expedited her case so that she had some coverage within a couple of weeks while the rest of us kicked in to pay her household and food expenses until the disability went through.
It was the medical system that refused to treat her without medical insurance. She ended up going to the ER constantly and finally bled to death there. These horrors happen more than Americans want to know.
Let me hasten to add that my friend worked all her life, but had the bad luck to work for employers who kept her on 3/4 time to save money and did not offer her insurance.
The problem with the healthcare reform bill is that no one knows if the health care bill will actually bring down premiums or, if affordable insurance DOES appear, what kind of deductibles and coverage might be offered.
There are are provisions to subsidize low-wage earners who can’t afford to purchase health care insurance. That means subsidies will be means tested, and the problem with any kind of means-tested program is that the bars of eligibility can be raised and lowered depending on who’s in Congress and what the national spending priorities are.
There will always be people like my friend who fall through the cracks, or who get much sicker while waiting for their paperwork to go through until the system is revamped.
Anyway, I’ve told this tale of woe umpteen times on this blog. Time for me to quit beating this drum.
It’s a beautiful snowy day here in mid-Michigan. I remember a New Year’s Day like this in the Upper Peninsula when there was about two and a half feet of snow on the ground. We all went to a friend’s house with our snow shoes or skies, hiked into the woods where he’d made a little “sunken patio” by scooping out the snow in a 10-foot circle. We sat in lawn chairs around a fire drinking hot chocolate with pepperming schnapps, and saw a some snowy owls. Maybe I’ll put on my snow shoes and walk around the back yard with a cuppa coffee for awhile this afternoon.
Jean, I am grateful that you are willing to inject the “human element” into these conversations. What happened to your friend is horrible.
We have something like 25″ of snow in our driveway and front walk. I am going to enjoy the weather today by digging out our vehicles.
Unfortunately, ideology seems to trump all these days, within the church, too. Few if any take time to step back and meditate and do some reframing beyond the either/or frames of political ideology. But there are those who meditate for a living, who are less caught up in our two narrow frames. And there are more than just two frames or options; in reality it is either/or/or/or…. Ultimately, of course, there are no frames, as St Paul tells us; we can see as God sees, with no frames, framelessness. Ideology, however, seems to be the modern form of idolatry So I think we all know how the 5-4 vote will go. But we can pray for a miracle, for some court members breaking out of predictable frames and functioning as justices and not mere ideologues.
Yes, it was horrible for my friend, it was horrible for Mary, the friend on duty that night, to watch her dying that way, it was horrible for her to kids, whom we’d known since they were babies, watch her dying. All Mary could do was hold her hand and help her say the Lord’s Prayer, because she couldn’t remember the words herself.
The ER could take blood counts and give her blood–take care of the emergency. But they could not give her chemo, could not give her home care, could offer very little in the way of help for us to help take care of her.
Because she had no hospitalization, the ER nurses would sometimes keep her in their observation room when she had a reaction to a transfusion. But they had to send her home with us after 24 hours.
The four of us who were tag-teaming her care made umpteen calls and received promises from everyone from visiting nurses to hospice to the cancer center outlining all the great help we would receive “as soon as her insurance issue is resolved.”
She died before that day came.
“The law of supply and demand is: if you force millions of new customers onto insurance rolls, you’ve increased demand for health insurance. If supply (number of insurance companies with a finite appetite for risk) stays roughly the same, then price will absolutely go up.”
Jim P. –
The law of supply and demand is not the only force in a capitalist system, not even in a primitive village sort of capitalism of the Adam Smith kind that you seem to think we live in.. Capitalism also includes this force: where there is a demand to be met new businessmen will step in to meet it if profitable. In the case you present, other insurers will go into the business, but only if there is a likelihood that that there will be enough premiums/money paid to coer the bills plus a bit of profit.. (Note also that the bills will be lowered because providers of services will compete for the new, added services required.) This is where government enters the equation in the new law — it will insure (note that word “insure”) that all the bills are paid — by taxes where necessary,
In other words, if the current insurers are still pricing people out of the system, other insurers will enter the competition and offer lower prices. They, of course, will make less profit at the beginning than the old insurers, but they will make money they formerly did not make so they still have incentive.
Granted, capitallist systems which work (e.g., Sweden) are more complex than primitive Adam Smith theorists (most of the American public, apparently) think it is. If complexity it the price we pay for universal coverage, then so be it. Complexity is not an intrinsic evil.
Here’s the crux of the matter: do we help pay for the Marys of this world or not? I think in our hearts we know the answer: I was hungry and your gave me food, I was thirsty and you gave me drink, I was dying and you helped me with the medical bill, even when you didn’t know my name.
People believed the government could not force people to pay taxes or force people to contribute to social securuty retirement benefits.This is more of the same.That everyone have health care is important to the the common goodas well as a feature of an advanced enlightened society.And practically people without insurance will increase the cost for everyone by using emergency rooms where of course they have to be treated.Health care for people is as essential as roads and education and it’s the inability of the rebublicans to recognize this and support a single payer-yes-socialized medicine,that has resulted in having to force people to” buy” healthcare.
Of course in highly technologically advanced society with a population of over 300 million people, all in need of health care services at some point in their lives, it’s just a matter of time before we will have socialized medicine it might take up to another 50 years but sooner or later we will have a nanny state because that’s what advanced societies are capable of doing-taking care of their people. Advances made by our human forebears have made this possible and that we all reap the fruits of human ingenuity is not a bad thing.A puritancal work ethic is not inherently valuable but sharing the fruits of advances in technology which make life easier and better for people is.
“Capitalism also includes this force: where there is a demand to be met new businessmen will step in to meet it if profitable. In the case you present, other insurers will go into the business, but only if there is a likelihood that that there will be enough premiums/money paid to coer the bills plus a bit of profit.”
Ann, that is a nice scenario, and may it pan out that way. However, this study suggests that the number of providers may actually shrink: http://www.lifeandhealthinsurancenews.com/News/2010/7/Pages/PPACA-Could-Harm-Smaller-Health-Insurers-Weiss.aspx
In addition, if employers start “dumping” employees into insurance exchanges, again, demand will increase and the price will rise.
Btw the law of supply and demand transcends the limits of village life. For a demonstration, please check out the price of a gallon of gasoline at your local service station.
“The law of supply and demand is: if you force millions of new customers onto insurance rolls, you’ve increased demand for health insurance. If supply (number of insurance companies with a finite appetite for risk) stays roughly the same, then price will absolutely go up.”
This isn’t true in the case of insurance. Risk (and therefore prices) increase the smaller the insured population. Risk and prices decrease the larger the insured population. This is why the small insurers will get out. They won’t be able to compete on a risk basis with the big payers.
This is also why any actuary will tell you that risk is most efficiently distributed to the largest possible population. And this is why a national single payer health system would make the most sense in terms of efficiency.
Jim P. –
The study also says this, which is consistent with what unagidon just said:
” Weiss says that large insurers with abundant capital and solid profits are likely to absorb the higher expenses from PPACA and could even expand their market share by acquiring the weaker companies.”
About the supply of and demand for oil — There is an absolute limit of oil in the Earth. The same is not true of health care. Were there health care limits what you say would apply. But the only limit is the limit we choose to set == and pay for.
True, we might not be willing to pay for the most expensive care for everyone, and that’s where Sarah Palin’s “death panels” had a certain highly tenuous connection with reality. There might have to be some sort of limit, whether a lifetime limit or whatever. But that is very different from saying we can’t supply decent care for everyone.
“This isn’t true in the case of insurance. Risk (and therefore prices) increase the smaller the insured population. Risk and prices decrease the larger the insured population. This is why the small insurers will get out. They won’t be able to compete on a risk basis with the big payers.”
Right – but … I’m not an actuary, but I believe that is one of those “all-else-being-held-equal” rules. E.g. If I start with a pool of 10 people of identical health, and then add 5 more people of identical health to the same pool, the risk for the overall pool decreases.
I expect, though, that each carrier assesses the actuarial characteristics and risk experience of each individual risk pool whose business it is pursuing, and pegs its rates accordingly. Thus, one (reasonable) prediction is that, by forbidding carriers from excluding those with pre-existing conditions from coverage, rates will rise as the size of the insured population expands, because these incremental new customers are very poor risks, making the overall pool less attractive. I believe this is why it is essential that mandatory coverage stay in force: those who typically forgo coverage, especially young adults, are the lowest risks for catastrophic medical bills, and their presence in the risk pool is necessary to offset those who can no longer be excluded for pre-existing conditions.
Beyond that: the health insurance marketplace isn’t exempt from supply-and-demand behavior, on either a micro or a macro level:
On a micro level, every benefits department invites multiple health insurance carriers to bid for its business at the end of every contract period in order to negotiate the best price for itself and its employees. That is classic supply-and-demand behavior.
On a macro level, the whole premise of insurance exchanges is that they will provide a convenient and level playing field for carriers to compete for individual coverage – i.e., to commoditize offerings to the extent possible in order enable supply-and-demand behavior for the benefit of the consumer.
Also, MA’s experience is that rates rose when universal coverage was implemented.
In addition, during the debate over the legislation, proponents of universal coverage (including posters in this forum) frequently critiqued the current marketplace by noting that in many states, one carrier seemed to own more than 50% of the marketplace. If market share (i.e. overall risk) were the only variable at work, then we should expect that private carriers with monopoly positions would be offering residents of those states the lowest possible rates.
“Right – but … I’m not an actuary, but I believe that is one of those “all-else-being-held-equal” rules. E.g. If I start with a pool of 10 people of identical health, and then add 5 more people of identical health to the same pool, the risk for the overall pool decreases.”
If you hold age and sex constant, the risk does not increase. That’s the thing about pools. You would have 15 people instead of 10 paying premiums. The new people might bring in more risk or illness, but they would bring in the same risk of not being ill as well.
“I expect, though, that each carrier assesses the actuarial characteristics and risk experience of each individual risk pool whose business it is pursuing, and pegs its rates accordingly. Thus, one (reasonable) prediction is that, by forbidding carriers from excluding those with pre-existing conditions from coverage, rates will rise as the size of the insured population expands, because these incremental new customers are very poor risks, making the overall pool less attractive. I believe this is why it is essential that mandatory coverage stay in force: those who typically forgo coverage, especially young adults, are the lowest risks for catastrophic medical bills, and their presence in the risk pool is necessary to offset those who can no longer be excluded for pre-existing conditions.”
For the sake of this discussion, there are two components of risk/price here. The first is in the size of the pool. The second is in the kind of contracts the payer has; since it is the contracts with providers more than the actuarial characteristics of the pool that drive its future costs (all things being equal). Right now, the ill tend to be excluded from insurance and the young and healthy tend to exclude themselves. Probably on the whole the pool of people without insurance has more illness in it than people who don’t. (Although keep in mind that the riskiest pool of all is already covered by Medicare). You are right about mandatory coverage, however. Cancelling mandatory coverage would be like telling people that they only had to buy car insurance after they had an accident.
“On a macro level, the whole premise of insurance exchanges is that they will provide a convenient and level playing field for carriers to compete for individual coverage – i.e., to commoditize offerings to the extent possible in order enable supply-and-demand behavior for the benefit of the consumer.
Also, MA’s experience is that rates rose when universal coverage was implemented.”
Insurance company profit levels are and always have been slim when compared to most other industries. Insurance companies get providers to work more efficiently, since there is not really a free market for medical care in the US (in the sense that a free market requires price and quality transparency, which does not really exist in the US medical market). Until the government can come up with an efficient mechanism to commoditize medical care (since it really isn’t now) there will be little in the way of market mechanisms to control price increases.
But this is only the tip of the iceberg.
“In addition, during the debate over the legislation, proponents of universal coverage (including posters in this forum) frequently critiqued the current marketplace by noting that in many states, one carrier seemed to own more than 50% of the marketplace. If market share (i.e. overall risk) were the only variable at work, then we should expect that private carriers with monopoly positions would be offering residents of those states the lowest possible rates.”
And this is, in fact, what you will see. But not just because the big payers have more predictable risk. Their market size also nets them the cheapest contracts with the providers.
Unagidon, thanks for the insights. And thanks to Ann for provoking them (she is such a troublemaker :-))
The whole thing shows how little anyone involves cared whether or not the law was constitutional – yes we still have a constitution – or whether it was practical.
Pelosi and Ried simply could not have cared more about themselves, nor less about the nation or the constitution.
As for the personal stories, Jean we are not far enough along to help folks like your friend.
Programs like this need to be based on the rule, not the exception. First develop something that is constitutional and that offers the greatest good to the greatest number of people at a price that we as a nation can afford. Then deal with the exceptional situations.
That this program cannot even pass the basic test of constitutionality, show how lame and slack were those involved in pushing it through Congress. And the President should have given the thing a thorough read before signing.
What crowd; what a mess they left!
Jim P. –
The reason I’m a trouble maker is because I’m old, and my Mama said, “If you can’t say what you want to say when you’re old, when can you say it?” So I have her permission :-)
unagidon –
Isn’t the insurance industry non-typical in another important respect — while we are free to choose our insurers we’re not really free not-to-choose being insured? Sure, I could cancel my policy but that might be suicide. It seems to me that our forced participation must have some effect on pricing somehow or another.
“As for the personal stories, Jean, we are not far enough along to help folks like your friend.”
Well, no kiddin’, Ken. That was kinda my point.
I’m not sure where you’re coming from, but you seem real ticked off about it.
If you’re saying that the health care bill is a jerry-built amalgam of ideas, a few of which are working now, and that might not make things worse or better in the future, but it’s a big gamble on the backs of the have-no-healthcares, I’d agree.
I’d also agree that the Democrats, who have long wanted to make health care or affordable health insurance or something like that a right, decided that it didn’t matter WHAT they passed so much as that they passed SOMEthing. I keep hearing that from fellow Democrats: “No, it’s not perfect, but it’s SOMEthing.” These are mostly Democrats who have nice jobs and health care benefits, and who look at me as something of an ingrate because I have concerns that I’ll be required to pay thousands of dollars per year for NOT being able to afford health care–or be required to purchase inadequate care to avoid that penalty.
Polls on the bill are interesting. According to NPR reports yesterday, when asked if they support the legislation, most people say no. When asked if they like the parts of the bill that have gone into effect now (keeping kids on parents’ policies until age 26, striking down pre-existings for children, etc.), they like it.
I fear that our polarized Congress will fail to do much of anything. Repealing the entire bill strikes me as a doctrinaire (and misguided) stand against “socialism.” Failing to those portions of the bill that may become punitive for low-income earners strikes me as equally stupid and stubborn.
Sorry, “Failing to REVISIT those portions …”
“I fear that our polarized Congress will fail to do much of anything”
I agree. The courts, though, are the wild card now. If the courts manage to ultimately vacate much/most/all content of the bill, then Congress will *have* to do something. Or not, I guess. :-(
I think most Democrats in Congress would be delighted if Republicans addressed the problems Jean describes. As it is, they seem like they just want to ensure that anyone harmed by the system’s flaws will not be compensated fairly.
This comes down to a question of values. Is health more important than economics? Can the US afford to pay for the care the US needs? Until we get shared answers to those questions, we will only be able to get systems “cobbled together” to get majority support. That is what Congress is for, and it should not be surprising that that is what it does.
I think this is far from clear as suggested in the post. Scalia relied on WIckard as precedent but he also has said that Wickard presents the outer limit of what the commerce clause would allow. The question is, is this beyond that edge. It is one thing to say one’s personal participation vis-a-vis a market can affect that market, it’s another to mandate participation in the market.
I also think Lender is right, a single payer system would be an easier thing to justify Constitutionally than a commercial mandate
“This comes down to a question of values. Is health more important than economics? Can the US afford to pay for the care the US needs?”
We’re wandering afield of the bill’s fate in the courts, but I think this statement is correct if more than a matter of values and affordability.
The health care biz in this country is a really mixed bag. Some elements are making a whole lot of money (Big Pharma and insurance companies who drop high-risk patients) and some are going broke (hospitals with ER’s that have to function as clinics for the indigent). There are also inefficiencies and unnecessary costs that could be addressed–but are outside the purview of the current health care bill, and so will do little to curb those costs.
Who are the real plaintiffs in this matter? It certainly is not those who need health insurance coverage at an affordable price. Nor is it the WalMart employee group that loves to go uninsured. Nor is it the families with children who can’t even get an appointment to see a physician and must resort to emergency rooms for services. I suspect the real culprits are the employers themselves who are deadly afraid that this is just a first step in single payer, MediCare type coverage for everyone, womb to tomb. Why would that be a bad thing?
Mike, the real plaintiffs are those who see the type of coverage you suggest as outside the purview of government to provide. A subset of those folks are the ones who object to the government paying for procedures they find morally indefensible, such as tubal ligations, in vitro fertilization, and abortions.
That, and that it would be incredibly expensive.
Of course, it’s incredibly expensive now, ibut the government doesn’t foot most of the bill; you give up money to the insurance company in the form of wage freezes or cuts, or reduced coverage, and that’s the capitalist way! Plus a Reuters study in 2009 estimates someone dies every 12 minutes because he doesn’t have health care insurance–people like my friend Ronnie. So that keeps costs down quite a bit.
http://www.youtube.com/watch?v=MnlI_qSEeo0&feature=related
How embarrassing. I posted my Green Bay video instead of the Reuter’s link. (Like a good Yooper, I’ll be eating venison taco casserole and playing “We Go Green Bay” every time the Packers score a touchdown.)
http://www.reuters.com/article/2009/09/17/us-usa-healthcare-deaths-idUSTRE58G6W520090917
“This comes down to a question of values. Is health more important than economics? Can the US afford to pay for the care the US needs?”
Can we affored to pay for our military incursions and long-standing presences throughout the world? We do.
Can we afford the tax breaks we allow so many US corporations to the point that many of them pay NO Federal corporate income taxes whatsoever? We do.
Can we afford the cost to the country of the deductibility of mortgage interest from personal income taxes? We do.
Can we afford that tax deductibility of charitable contributions to religious and non-religious institutions? We do.
Are ANY of these “gimmes” more important than health care for the masses? Ask any member of the Senate or the House what their thoughts about this would be if they were to lose the cadillac health care coverages that they are offered and which they enjoy.