12
Health care goes before the court
U.S. Rep. Louie Gohmert (R-Tex.) speaks during a press conference at the U.S. Capitol March 21, 2012 in Washington, D.C. Republican members from the House of Representatives gathered to speak out against the health care bill, which is the topic of a case before the Supreme Court next week.
To view this content, Javascript must be enabled and Adobe Flash Player must be installed.
Kai Ryssdal: President Obama's health care law turns 2 years old tomorrow. There probably aren't going to be any celebrations, though, because Monday's going to be a much bigger day for The Affordable Care Act.
The Supreme Court starts three days of hearings, key parts of which will be about the most contentious part of the law, something called the individual mandate: The requirement that everybody purchase health insurance. In essence, whether the government can force people to buy something.
The Obama adminstration maintains the law is indeed constitutional; they point to a very specific clause in the Constitution in their defense. To explain, Marketplace's Gregory Warner took a walk in Philadelphia.
Gregory Warner: I’m walking onto the Ben Franklin Bridge that connects Pennsylvania and New Jersey. There’s a footpath.
Ted Ruger: I’ve always wanted to do this!
With me is Ted Ruger.
Ruger: I teach health law and constitutional law at the University of Pennsylvania.
And Ruger is an expert on something called the Interstate Commerce Clause in the Constitution. It’s the clause that allows the federal government to regulate economic activity between states.
Ruger: I mean, we’re walking across a bridge that very tangibly connects two states here, and we can see that. But we’re talking about an issue -- health insurance -- that in somewhat less visible but no less important ways, is connected among all the 50 states.
For instance, your insurance policy pays for drugs and medical devices that cross state lines. Insurance money is pooled between people in different states.
Ruger: The choice to buy insurance is an economic choice that reverberates across state lines?
Reverberates like these tractor trailers. The law is firm on that point.
Ruger: But so too is the choice to forgo insurance. Roll the dice if you will.
That’s the question before the Supreme Court: If the government can use the same power it uses to regulate these trucks to compel you to buy health insurance. Because when it comes to medical care, no man is an island. If I don’t have insurance and I get sick, I can still show up at a hospital for treatment. Those costs might get be passed on to other people. Uninsured people cost $43 billion in 2008.
Ruger: So the choice that looks like it’s your own choice could reverberate in ways that burden others.
The government argues that everybody needs to share that burden, by paying in now even when they’re healthy. So health care will be there for anyone who gets sick, just like this bridge is here when Ted Ruger and I want to walk to New Jersey. Or so we thought.
Officer on bridge: Is this a commercial project?
Warner: We’re not doing a story about the bridge, we’re just chatting on --
Officer: But you’re still using the bridge.
Warner: Well yeah, as a metaphor for health insurance.
Officer: I know but you gotta get in touch with Ed Cosuba, you know Ed?
So we got off the bridge. Then I went to talk to Lee Casey at Baker and Hostetler, one of the lawyers that originally brought this case in the lower courts on behalf of 26 states. Casey says not buying insurance is just one of many personal decisions that have an economic impact.
Lee Casey: The fact that, you know, I skipped breakfast this morning has an effect that ripples through the economy. But that doesn’t mean that Congress can regulate that, my decision, quote unquote, not to have breakfast!
The interstate commerce clause he says only allows the government to regulate economic activities.
Casey: Activities. Not decisions. Not personal 'I’m gonna do this I’m gonna do that.'
In Casey’s view, if the federal government is allowed to make us buy insurance, it can make us buy anything. Some lawyers have pointed out that Congress did make people buy a musket and bullets -- in 1792 -- but in the words of the appellate court, “There’s a difference between drafting a citizen to join the military and forcing him to respond to a price quote from Aetna.”
Casey: The case law has never gone so far as to suggest that someone’s personal decision, not to enter commerce, somehow gives Congress the ability to force you into commerce so it can regulate you.
Still, the government argues that health insurance is different. That market only works if enough healthy people contribute to the pool, before they think they need it.
Tom Baker is an insurance law expert at the University of Pennsylvania Law School.
Tom Baker: You know we need a really big group for insurance to work. And in order to have a really big group, you have to have people thrown together in a way that they can’t exit.
The arguments go through Wednesday, but it’ll be late June before we know if the Supreme Court is willing to let the feds put a lock on that door.
In Philadelphia, I’m Gregory Warner for Marketplace.
Pages
I hate to say it, but Gregory Warner really let one slip by with that last quote from Lee Casey ("The case law has never gone so far as to suggest that someone’s personal decision, not to enter commerce, somehow gives Congress the ability to force you into commerce so it can regulate you.").
That's completely, utterly wrong. The Supreme Court explicitly did this in the 1942 Wickard v. Filburn case (http://en.wikipedia.org/wiki/Wickard_v._Filburn), where the court upheld the punishment of a farmer who was growing wheat for his own use without any intention of selling it.
That's plainly someone who "made the personal decision not to enter commerce", and still ran afoul of regulations passed by Congress.
The Supreme Court has been allowing the scope of the Federal government to steadily grow for decades under the scope of the Commerce clause, and NOW they're going to block another expansion just because the wrong party passed the legislation?
I understand their dilemma. Wickard v. Filburn was a TERRIBLE decision, but they're somewhat obliged (under "stare decisis") to uphold it. However, given that they ruled a case using the same logic less than 10 years ago (2005, Gonzales v. Raich), they have no rational reason to do an about-face now.
To do so would be UTTER hypocrisy.
Any compulsory program should be public, non-profit, and affordable---car insurance, health insurance, anything---or it amounts to a mandate for profiteering. The idea that this program was brought forth by a Democratic administration is outrageous to me. There's nothing "socialist" about it; it represents no less than fuel for the next Wall Street bubble, and serves to demonstrate that both parties are firmly in the pocket of financiers and corporate America---as is the Supreme Court. If not struck down, we, as wage-earners, consumers and taxpayers, will be subordinated to the will of big business and high finance without anything like a "free market" in operation. That's oligarchy cum fascism, not socialism. The "free rider" principle is one thing; capitalizing on the sick and elderly will make us a more ghoulish country than any country on earth.
Anyone who works above the table is currently required to pay to FICA (Social Security), whether they are self-employed or work for a third party, whether or not they expect to collect benefits. In Pennsylvania, I also pay into the Unemployment Insurance Fund, whether or not I expect to become unemployed. Both of these programs are to my benefit.
I believe the health insurance requirement is a definite benefit to people who are not eligible for coverage through their employer.
Why is mandating health insurance so different from mandating auto insurance? Nobody plans on getting into a car accident, and nobody plans on getting sick, yet even the most careful drivers get hit by uninsured motorists all the time, and even people who lead healthy lives get very sick either from genetic issues or other factors beyond their control(Christopher Reeve's wife died of lung cancer even though she never smoked!). The reason insurance is(or should be) mandated is because the costs of an "accident", either vehicular or health related, can be, and often are, so astronomical that the perpetrator can't possibly be expected to pay for the damage so we all collectively have to, which is what happens to State Farm or Geico customers when a fellow customer causes a million dollar lawsuit. The most important differences I see are that driving is optional, and safe drivers tend not to get into accidents, and if they do either their rates get raised or they get dropped, but staying healthy is a lot more complicated than stopping at red lights, and most insurance companies already charge more if you smoke(similar to speeding and running red lights) so setting aside all the legal mumbo jumbo why don't we just make health insurance mandatory and penalize smokers, drinkers and drug users the same way auto insurance companies penalize stoplight runners, speeders and people with multiple accidents? If nothing else, it's entirely possible that mandating insurance will lead people to lead healthier lives the same way a chronic speeder will ultimately slow down when faced with the risk losing his insurance, driving privileges, or life, and if he doesn't then who cares because he won't live long enough to cost the rest of us all that much anyway...
"Why is mandating health insurance so different from mandating auto insurance? ... The most important differences I see are that driving is optional"
Maybe if you live on the east coast. If you live in Texas, our cities are built with the assumption that everyone drives a car. You can't function in society with out driving here. We're gonna be in trouble when the baby boomers get too old to drive.
The discussion that Mr. Warner and Mr. Ruger had on the bridge seems to be irrelevant. The interstate commerce clause in the constitution does not apply to the business of insurance. Under current law, insurance is specifically excluded from the interstate commerce clause due to McCarran-Ferguson Act of 1945. Under this law, that it was in the public interest that the states regulate and tax the business of insurance and that Congress shall in no way impose any barrier to the regulation or taxation of such business by the states. There are a few clauses that allow the Federal government to regulate insurance - usually related to anti-trust, but these do not appear to be applicable to the current health care debate.
In my opinion, Congress will need to repeal McCarran-Ferguson, for all insurance business OR the US Supreme Court will need to declare McCarren-Ferguson unconstitutional. Neither of these is likely to happen. State regulation of the business of insurance has a long history and was endorsed by the Supreme Court in Paul v. Virginia in 1869. It was deemed that because insurance was a local contract, it was not subject to the Interstate Commerce Clause. This was briefly overturned by the Supreme Court in the 1940's until McCarran-Ferguson changed it.
"Under current law, insurance is specifically excluded from the interstate commerce clause due to McCarran-Ferguson Act of 1945"
Hmm. Interesting, but I don’t think congress has the authority to pass a law that limits what laws a future congress can make. Only a constitutional amendment could do that, I believe. So, congress could overturn McCarran-Ferguson on it's own (with a presidential signature), without the need for a Sumpreme Court ruling.
(A) Congress has the authority to levy taxes
(B) Congress has the authority to provide health insurance. Congress can also subsidize health insurance or issue tax credits or vouchers for purchase of private insurance (medicare advantage).
(C) Combining A and B is effectively the same as mandating the purchase of private insurance.
A+B=C. Congress can do A & B. Therefore, congress can do C. Simple as that. Why are we talking about the commerce clause? The individual mandate is merely the combination of a tax and a subsidy (two things the government does all the time!)
So-called "health insurance companies" are not health care companies, but self-interested financial institutions. They are certainly NOT "fiduciaries" of/for your health, nor are they the friend of the health care sector: they are the bane of both. Constructing a national health care system would be one thing - and a positive thing. Mandating this "financial institution all-employment act" is something altogether different and totally detestable. Totally.
"So-called "health insurance companies" are not health care companies, but self-interested financial institutions"
Hospitals are also self-interested commercial institutions to a certain extent. If you ever have emergency care, it's a big help to have your insurance company in your corner. They usually have pre-arranged prices for every treatment. As an individual, you probably don't, and if you go in alone, the hospital can and will over charge you.
And, don't forget big-pharma and the companies that manufacture medical devices. They're definately self-interested.
Pages
