Archive for Thursday, October 6, 2011

Constitutionality of health care reform mandate debated at Dole Institute event

October 6, 2011


A one-sentence question was posed by Dole Institute of Politics Associate Director Barbara Ballard: Is the federal government’s 2014 insurance mandate under the new health care law constitutional?

One attorney on each side tried to make it simple. But it’s complicated.

“What doesn’t seem to fall into the rubric of regulating commerce is forcing people into commerce so that the government can regulate them,” said Gregory Katsas, a litigation partner at the Washington firm of Jones Day, who is involved in one challenge to the federal health care law on behalf of a national small-business group.

But Catherine Stetson, a partner and director of appellate practice at another Washington firm, Hogan Lovells, had members of the audience raise their hands if they’d ever had to unexpectedly go to the doctor or the emergency room.

“There is another market that all of us are in or will be in whether we want to be or not,” she said, “and that’s the health care market.”

Stetson argued that’s what Congress was trying to accomplish by passing the law in 2010 and including the mandate that requires every individual to purchase insurance by 2014 or pay a penalty. It’s crucial because it costs the health care industry and hospitals billions of dollars in uncompensated care to uninsured patients, she said.

Both attorneys told moderator Steve McAllister, a Kansas University law professor, that they believed the U.S. Supreme Court would decide the issue by June. An 11th Circuit Court of Appeals panel ruled this year that Congress exceeded its authority by requiring Americans to buy coverage.

Katsas, who was involved in that case, argued the health insurance market was not unlike the selling of any other products “whether it be broccoli or General Motors cars or Citibank mortgages.”

But Stetson said her side was talking about financing a risk.

“You do not drive a General Motors car off the lot and tell the dealer just to bill your neighbor or to take the cost of the car on yourself,” she said. “That’s what Congress has concluded has happened every single day to the tune of billions of dollars in the health care economy.”

The debate was part of Constitution Day programming at KU.

As the country awaits the Supreme Court’s expected handling of at least one of the legal challenges that has worked its way through the appellate court system, Stetson predicted that for how divisive the issue was before Congress, the justices won’t split 5 to 4 on party lines, but instead uphold the mandate 7 to 2, with Justice Clarence Thomas and one other justice yet to be determined dissenting.

Katsas didn’t make a prediction based on his involvement in the 11th Circuit case, but he said the Supreme Court will be breaking new ground either way.

“I think both sides have a pretty good fighting chance,” he said. “And I think I’ll just leave it at that.”


Kim Murphree 6 years, 5 months ago

Maybe we should just do away with health insurance all together. If no one can afford to go to the doctor or the hospital...or medical bills just don't get paid...I bet changes occur and I bet that medical prices come down. Insurance keeps the free market from having direct effect on the health care industry. Can we afford that cushion? I know it won't happen because people are too scared that they might have to go without medical treatment, and that's the rub, that's what makes health care different than other commodities--we are talking about human life, and quality of life--seems to me that none of the other rights matter if you are dead. Entitlement? The only entitlement that I see hurting the healthcare debate is those who believe they are entitled to make money off the misery of others. That's the entitlement we need to be rid of.

Crazy_Larry 6 years, 5 months ago

Do you want a for-profit insurance corporation making intimate health care decisions for you? You're sadly mistaken if you don't believe these insurance companies don't maintain death panels.

Crazy_Larry 6 years, 5 months ago

When you say the government does the military well, what exactly do you mean? They waste money doubt about it. They kill people pretty good too.

Kim Murphree 6 years, 5 months ago

What a weird interpretation...considering private insurance companies make determinations NOW based on profit of what constitutes essential services...where is your outrage about that?

Paul R Getto 6 years, 5 months ago

A legitimate concern, perhaps. We have had 'death panels' for quite some time---they are called insurance actuaries.

appleaday 6 years, 5 months ago

And we're all paying for each others' health care now anyway, in the form of higher premiums and higher out of pocket costs. The uninsured still get "sick care" which is way more expensive than "health care" and the costs written off by clinics and hospitals are passed on to the paying customers. Among the insured, premiums go up because people often don't take responsiblity for their own preventive care (diet, exercise, smoking cessation) and they use up a huge portion of the health care dollar in treatment for diabetes, cardiac and stroke care, and cancer treatments.

Brian Laird 6 years, 5 months ago

In 1986, the Congress (controlled by Democrats) passed and Reagan signed the Emergency Medical Treatment and Active Labor Act", which required hospitals and EMT's to treat anyone needing healthcare regardless of citizenship or ability to pay. As long as that is in place without a general "mandate" the health care system is unsustainable. This is what she is referring to in her GM analogy (which I agree would have been less ironic if she had used Ford). The basic issue, as I see it is, either we make the decision as a society to do away with the EMTALA and allow hospitals to turn away people and let them die, or we come up with some sort of "mandate" to eliminate the moral hazard inherent in having the EMTALA with no "mandate"

I use the word "mandate" in quotes, because this is not really a mandate, as I understand the word mandate as something that there is no way to avoid without serious consequences. Paying taxes is a mandate because if you don't, you go to jail. You can get out of the health insurance requirement by paying an extra tax that is lower than the usual cost of insurance. Probably a better way to do it would be to raise taxes to cover some health care costs and then give anyone with health insurance a tax credit. That would be really no different then constitutionally as the home mortgage deduction or child credit. Mathematically, it is the same as the current "mandate", but very few people would argue that the child tax credit is a mandate for having children - even though operatively it is the same as the health care mandate.

Richard Heckler 6 years, 5 months ago

What about this?

Has anyone received a refund yet?

Thursday, June 25, 2009

Health insurers have forced consumers to pay billions of dollars in medical bills that the insurers themselves should have paid, according to a report released yesterday by the staff of the Senate Commerce Committee.

Richard Heckler 6 years, 5 months ago

Paying more yet getting less

How much is the sick U.S. health care system costing you?

Richard Heckler 6 years, 5 months ago

Hey let's bring our tax dollars back to the community = let our tax dollars work for we the taxpayer.

[Hands Off Medicare] Medicare is the Solution...Not the Problem We need Medicare for All!

On August 2nd, 2011, Congress passed a plan to reduce the federal deficit despite grassroots demands across the country to look at improved Medicare-for-all (.pdf) as a solution to the health and fiscal crisis.

Richard Heckler 6 years, 5 months ago

Reduce the cost of government and school districts!

Single-payer healthcare: better care, lower cost across the board

Flap Doodle 6 years, 5 months ago

I was wondering when that link would get back on your heavy rotation list.....

jafs 6 years, 5 months ago

And, if you even glance at the article linked, it's talking about minimum standards for insurance policies, and cost-containing measures to keep premiums reasonable.

There's nothing prohibiting extra coverage, or making any decisions for doctors/patients.

The government is attempting to ensure that all insurance policies deliver at least a certain minimum standard of coverage, and to keep premiums affordable.

What's wrong with that exactly?

voevoda 6 years, 5 months ago

The Canadian single-payer system is run out of the provinces. So in the US, it would be the states.
The benefits of a single-payer system? Everybody who can pay into it does. No more freeloaders who could afford to pay for their own health insurance but prefer not to. No more arbitrary exclusions, based on the fine print of a policy. No more bankrupting patients because of unpaid medical bills. No more sticking with a bad job instead of trying to start of new business, just because of the cost of health insurance. Streamlined administration of benefits, with reduction of confusion and administrative costs.
I know you're scared, ibroke, but the benefits of a single-payer system greatly outweigh the (mostly phantom) risks. If you're really broke, a single-payer system could be a lifesaver for you. Literally.

jafs 6 years, 5 months ago

From the time I was about 20 until I became about 40, I didn't have health insurance and didn't need it - I paid for my own health care costs out of pocket, and they were quite minimal, since I tend to take pretty good care of myself.

Many young people will probably not need enough health care in those years to make it reasonable for them to get health insurance, and I am a bit uncomfortable forcing them to get it anyway.

Emergency coverage is a bit different - if we were requiring everybody have at least a basic emergency coverage policy, I might feel a bit better about it.

voevoda 6 years, 5 months ago

Preventive care is cost-effective for the society in the long run, because potentially debilitating conditions can be treated before they worsen, resulting in the need for expensive treatment and removing the patient from productive labor. This has been demonstrated by epidemiologists, and that's why insurance companies and companies increasingly pay for "well person" care and screenings. If you didn't get sick while uninsured, jafs, you were lucky. But even young people who "take pretty good care" of themselves can fall deathly ill. If you had gotten sick, would you have just let yourself suffer and die without treatment? I hope not! But someone would have had to pay for your treatment, and once your own resources were gone and you were bankrupt, then the public would have had to pay for your care. That's why universal insurance is so essential.

jafs 6 years, 5 months ago

I got a little sick now and then, paid for the treatment myself, and healed well, since I take pretty good care to eat well, exercise, don't smoke, etc.

The question, I suppose, is how much one thinks that "society" should be able to dictate individual choice, or how much freedom the individual should have, even if there are potential downsides for "society".

Depending on how that question is answered, one can see the health insurance mandate as a positive or negative thing, and that's why there is a serious disagreement about it. Also, of course, none of those considerations make it constitutional, which is also in question.

I tend not to like insurance for a variety of reasons - if we're going to provide socialized anything, I think we'd do better to provide socialized care to those that can't afford private care.

voevoda 6 years, 5 months ago

It would be the same as if a state wanted to decide not provide any public schools. Or have a system of driver's licenses. Or accreditation of professionals, such as nurses or real estate agents.

Crazy_Larry 6 years, 5 months ago

Efforts to achieve universal healthcare coverage began with Theodore Roosevelt, 100 years ago. In his 1974 State of the Union address, President Richard M. Nixon called for comprehensive health insurance. What a long strange trip it's been...

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