Why the 11th Circuit’s Opinion on Health Care Reform Self-Destructs

Like a tragic literary figure, the 11th Circuit’s opinion declaring the individual mandate unconstitutional is doomed to failure by its own internal contradictions.  What follows is a series of quotes directly from the opinion, paired to show how desperately the majority twisted logic in order to find its path to a unsupportable conclusion:

1.  On the key necessary and proper argument, the court obfuscated as follows:

The government’s argument derives from a Commerce Clause doctrine of recent [1995] vintage: . . . the “essential part of a larger regulation of economic activity” language in Lopez. . . . Raich [is the] the only instance in which a statute has been sustained by the larger regulatory scheme doctrine.

HOWEVER, the court was well aware that

The Supreme Court’s most definitive statement of the Necessary and Proper Clause’s function remains Chief Justice Marshall’s articulation in McCulloch v.Maryland: 17 U.S. (4 Wheat.) 316, 421 (1819).

2.  Wearing this historical and precedential blinder, the court framed the relevant test as whether the mandate is “essential” to the ACA’s overall regulatory scheme:

[W]e conclude that the Supreme Court’s “larger regulatory scheme” doctrine embodies an observation put forth in the New Deal case of Jones & Laughlin Steel Corp.: “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” . . . [The failure to purchase insurance] in no way “burdens” or “obstructs” Congress’s ability to enforce its regulation of the insurance industry. . . . The government’s assertion that the individual mandate is “essential” to Congress’s broader economic regulation is further undermined by components of the Act itself.

BUT, of course, “essential,” “burden,” and “obstruct” are not the operative tests.  Instead, the court itself explained earlier in its decision that a much more lenient rational basis test applies:

“the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’” . . . On the breadth of the Necessary and Proper Clause, the Comstock Court noted that The Supreme Court must determine whether a federal statute “constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” “[T]he relevant inquiry is simply ‘whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power’ or under other powers that the Constitution grants Congress the authority to implement.”

The court never invokes or applies this test, even though (and perhaps because) it is one that the government easily meets.

3.   On whether the mandate relates to commerce:

[W]e are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce–perhaps, in part, because it has never been faced with the type of regulation at issue here. . . . As an inferior court, we may not craft new dichotomies … not  recognized by Supreme Court doctrine. . . .

BUT, of course the decision was all about a new categorical limit:

[T]he Act is forcing market entry by those outside the market . . . Until Congress passed the Act, the power to regulate commerce had not included the authority to issue an economic mandate. Now Congress seeks not only the power to reach a new class of “activity”–financial decisions whose effects are felt some time in the future–but it wishes to do so through a heretofore untested power: an economic mandate. . . . [T]his distinction . . . in truth [] strikes at the heart of whether Congress has acted within its enumerated power. Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government. . . . Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. . . . The individual mandate does not wait for market entry.

4.  On the slippery slope concern:

To connect this conduct to interstate commerce would . . .  allow Congress to regulate anything. . . . To give but one example, Congress could undoubtedly require every American to purchase liability insurance, lest the consequences of their negligence or inattention lead to unfunded costs (medical and otherwise) passed on to others in the future . . .

BUT, why is this any real concern, considering:

The fact that Congress has never before exercised this supposed authority is telling . . . Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority.  Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle . . . .

5.  On the mandate’s fit with legislative purposes, the court complained that:

the individual mandate’s attempt to reduce the number of the uninsured and correct the cost-shifting problem is woefully overinclusive.

BUT, the court also criticized the mandate for being underinclusive:

Even if the individual mandate remained intact, the “adverse selection” problem identified by Congress would persist not only with respect to [the] eight broad exemptions, but also with respect to those healthy persons who choose to pay the mandate penalty. . . . Additionally, Congress has hamstrung its own efforts to ensure compliance with the mandate by opting for toothless enforcement mechanisms.

6.  The court thought the mandate is not necessary to regulate insurers because:

[T]he conduct regulated by the individual mandate–an individual’s decision not to purchase health insurance and the concomitant absence of a commercial transaction–in no way “burdens” or “obstructs” Congress’s ability to enforce its regulation of the insurance industry.

BUT, the court conceded there is universal agreement that the mandate is needed to combat adverse selection:

Distinguished economists have filed helpful briefs on both sides of the case. While they disagree on some things, they agree about the theory of adverse selection. They agree some relatively healthy people refrain from, or opt out of, buying health insurance more often than people who are unhealthy or sick seek insurance. This results in a smaller and less healthy pool of insured persons for private insurance companies.

AND, in an analogous regulatory arena (flood insurance), the court went to some length to explain that:

Without an “individual mandate,” the flood insurance program has largely been a failure. . . . One key reason for this low participation is not surprising. . . . People living in a flood plain know that even if they do not have insurance, they can count on the virtually guaranteed availability of federal funds.

7.  Finally, on the government’s burden of persuasion, the court reflexively said:

We, as all federal courts, must begin with a presumption of constitutionality . . . We are loath to invalidate an act of Congress, and do so only after extensive circumspection.

BUT of course how it really thought and reasoned was:

[T[he government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses the[] constitutionality [or economic mandates]. . . . The government’s position . . .  affords no limiting principles in which to confine Congress’s enumerated power. . . . [T]he government’s insistence that we defer to Congress’s fact findings underscores the lack of any judicially enforceable stopping point . . . . At best, we can say that the uninsured may, at some point in theunforeseeable future, create [a] cost-shifting consequence. Yet this readily leads to a scenario where we must “pile inference upon inference” to sustain Congress’s legislation . . . . The government’s factbased criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a contributor to Health Reform Watch.

This post first appeared at Health Reform Watch, the web log of the Seton Hall University School of Law, Health Law & Policy Program, and at Balkinization.

85 replies »

  1. That is very fascinating, You’re a very skilled blogger. I have joined your feed and stay up for looking for more of your fantastic post. Additionally, I’ve shared your website in my social networks

  2. “just sitting at your computer waiting to get a person to make a comment”

    The technology has gone WAY past that.

    Have a good weekend.

  3. For you, Mr G, I sense an audience of one is more than enough to entertain. Except, in your case, the screen does substitute for a mirror, eh?

    Besides, get a life, just sitting at your computer waiting to get a person to make a comment so you can swiftly reply does not make one wiser or more sly. Just watch the butter, it can be brutal on arterial lining.

    Catch up on Monday, hope the thread is not too slow for you til then!

  4. Per Ms G-A’s last comment about her denial the Supreme Court is not corrupt, well, interpretation is unique to the observer, but, come on, Scalia and Thomas have actions that go beyond political, maybe not easy to stick corrupt as a blatant label but beyond political. Besides, to become a Supreme Court nominee, at least these past 3 decades when the process of nomination became beyond fitness and appropriateness for the bench, the level of personality disordered features were part of the interests of the Presidents doing the nominating. You think the sitting Justices placed by Obama are fair and impartial people in the community? If you do, what is the color of the sky in your world? Maybe Ginsburg and Kennedy have some healthy abilities, but I have my doubts about Roberts and Alito, but at least they keep their narcissism close to the vest out in public. Kagan and Soltimeyer(right spelling), they were not the first choice candidates to those who understood the nominating process, but fit Obama’s agenda oh so well!!!

    When O’Connor left, so did the last refuge of some reasonable debate between these remaining justices. Hey, she had the sense to retire. Reinquist, he had to die to finally realize it was time to end his tenure. Not soon enough to me!

    Again, may sound harsh, but when dealing with narcissists who can impact on people’s lives beyond the narcissist’s death, don’t have to negotiate nor be respectful with those who don’t even know how to spell those words negotiate or respect much less try to practice their concepts.

  5. And where did that request go Bobby? Just becuase some liberal wacks wanted to play politics with their complaint doesn’t mean there was any truth.

    Now how do you feel about Kagan and the Obama administration covering up her role in the ObamaCare passage and rather she should recluse if it comes in front of the court?

  6. How so?
    As far as I know nobody ever contended the justices were on Koch’s payroll or that they financially benefited from any of the Court rulings. I agree that both are political, but so are the left to center ones. I’m pretty sure justice Brandeis had very few friends in the corporate world.

  7. So what do you suggest Peter? Corporations can give no money or just cap what they give? Do you want the same limits to apply to Unions and individuals like Soros? Can individuals, corporations, Unions take out commercials advancing their goals? What about the Media do you want to reign them in to?

  8. Corporate lobbyists and donors wield undue influence on the political system mainly because Americans don’t go out and vote. The Constitution cannot prevent corporations from taking over if the people choose to stay home and allow them to do so. We have the tools to fight, but we are too damn lazy to be bothered.

    The supreme Court has always been political, from Justice Marshall days to today. I may not like the current Court composition, but I don’t think the Court is corrupt.

  9. “corporate lobbyists/donors and special interest political contributors buy legislation”

    Not to mention SCOTUS votes.

  10. “but it always was and still is the most potent defense against tyranny of the few over the many.”

    Not when corporate lobbyists/donors and special interest political contributors buy legislation for the few against the many. It’s money in politics(now much of it secret), supported by a political supreme court, that’s the real threat of tyranny. Corporations are NOT people and money is not necessarily free speech any more than bribery is.

  11. The problem with the individual mandate is beyond “unconstitutionality”. If upheld, it will serve as precedent for Congress to be able to force citizens to engage in economic activities benefiting private corporations. Today this may seem like a good idea because it is for a good cause. Tomorrow, when a different Congress is seated and a different event is declared to be a crisis, it may not seem like such a good idea, but at that point from a purely legal point of view, it will be too late.
    You can argue that the Court will decide matters based on politics anyway, so there is no difference. And this argument in my opinion is another step in our strange acceptance that our Government is and shall remain dysfunctional.
    I believe our times will go down in history as a most embarrassing era for the US, but I also believe that this disgrace will end and the people will force the changes that must occur in government if we are to remain a successful Democracy. I would very much prefer that we do not accumulate the type of baggage that this mandate is presenting. It will just make it harder for future generations to address the problems we created for them.

    The Constitution is indeed 200 years old and it is far from perfect, but it always was and still is the most potent defense against tyranny of the few over the many.

  12. Nice, Peter.

    Constitutional “construction” (from “narrow” to “broad”) first considers and defers to “legislative construction.” The term “construction” — conSTRUE — is just a fancy way of saying “interprete.” SCOTUS has to look at legislative intent, which is deemed presumptively constitutional absent some clear crossing of Congress’s legitimate sphere of authority.

    What comprises “clear” is mostly not easy, and mostly a close call.

    Entire post-doctoral careers have been devoted to chewing over one word or phrase within a clause or Amendment.

    And, then you get these angry blog commenters storming in everywhere loudly proclaiming everything with which they disagree “unconstitutional,” using mainly only the tired Undergrad Fallacies 101 stuff in support of their antipathy.

    Dilettante Constitutional Lutheranism certainly has its charms, but also has similarly limited utility.

  13. MD, what this points out is the court is as much a political body as it is a legal body. The constitution is an interpretive document as is also shown by the 2nd amendment – “a well regulated militia” gets interpreted to mean “private” citizens not in a militia have a right to carry AK47s and 16 mag load hand guns anywhere and anytime they want. It would be interpreted differently if the NRA was not such a political force. Show me anywhere where Justice Thomas has made a decision not based in anger and revenge against “liberals” and his life experiences.

    Clearly “interpreting” the constitution to approve a mandate would be a huge step forward for universal medical coverage – the next step would be to make it “affordable”.

    You can continue to live in a fantasy world devoid of modern reality by clinging to a 200+ year old document, but the reality is we live in far different times than the constitution was meant to deal with.

  14. Hmmmmm. I’m not sure. Must be the low point of the court, sort of like when they decided local government could transfer (steal) property from one owner to another who would generate more tax revenue for the “general welfare” of the community.

    You might want to propose a constitutional amendment after the court finds ACA unconstitutional. Maybe then they can get it right for you.

  15. “Government being insensitive to cost constantly fails to manage cost.”

    Again, can’t disagree. You could, though, make the same observation with respect to the AHIP crowd across our lifetimes, the way all of this has evolved. See, for example, the JD Klienke Medco talk series on YouTube.

  16. “Well, I see a good bit of correlation/causality fallacy there.”

    Tis fair, I got lasy and you beat me over the head with it.

    The healthcare reforms implemented by government have distorted the market in ways contrary to the stated goals of reform. Specifically Medicare taking over responsibility for day to day care instead of addressing the needed catosptropihic coverage has lead to a detachment from cost by members which has increased consumption. It has also freed the providers of care to charge amounts and order care they would not dream of if asking for payment direct from the member.

    The system they built to administer the plan was also overly sustable to fraud and abuse.

    The latest round of reform will also negativly affect cost and utilization. Requiring insurance to cover preventive services will not only lead to dishonest providers farming patients for test but will also increase the cost of those test.

    Government being insensitive to cost constantly fails to manage cost.

  17. “Very shallow for you to assail me without knowing much about me.”

    That’s totally rich. I am an open book. You are not.

  18. “The same way Pell Grants and student loans have kept college affordable….ah thats right the more financial assistance the government provided the more expensive college got. ”

    Can’t disagree with that (Hell Hath Indeed Frozen over; BobbyG agrees with Nate on something). Reflective of the problematic long-term ramifications of any targeted incentive. Zero-sum games. e.g., the deductibility value of my mortgage ends up rather precisely reflected in the market value of my home.

    “The more healthcare assistance the government has provided the more expensive healthcare has got.”

    Well, I see a good bit of correlation/causality fallacy there. Moreover (and relatedly), take away the cost-shifting element via universal coverage and the expense management thing becomes a materially different issue.

  19. 🙂 as much time as you all spend talking to yourself at least negotiating is semi productive.

  20. “it achieves the historic progressive goal of near-universal coverage. ”

    No. Not near-universal. Not almost universal. Not practically universal. Not good enough. The progressive goal is Universal coverage. I am really tired of liberals negotiating with themselves….

  21. Not laughable at all. I agree. CANDIDATE Obama agreed that health care should be viewed as a right (debate with McCain). PRESIDENT Obama, however, has waffled (most famously via that tired car insurance red herring analogy).

  22. “The new health care law includes hundreds of billions of dollars in affordability credits to ensure that low- and moderate income people can afford coverage.”

    The same way Pell Grants and student loans have kept college affordable….ah thats right the more financial assistance the government provided the more expensive college got. The more healthcare assistance the government has provided the more expensive healthcare has got.

    “So Republicans wish to kill it,”

    As do Democrats, why do you fail to mention that?

    “it achieves the historic progressive goal of near-universal coverage. ”

    How does a bill that has increased the number of uninsured achieve near-universal coverage? Thats as stupid of a statement as saying Medicare prevented Grandma from losing the shirt off her back. That might be the BS used to pass the bill but the bill never achieved that. Typical liberal wants all the credit for thinking about doing something regardless of the fact they haven’t actually done anything.

    “negotiated among interest groups and policy experts”

    Policy experts, not experts in the field that actually know what they are doing but experts in policy, what a shock these things never live up to their title.

  23. I am not a Republican, not even an independent, but I don’t subscribe to the notion that two wrongs make a right, no matter how long it took to come up with both.

    Nobody argues that this law has nothing to do with interstate commerce, and all the wheat & weed examples cited are vastly different than what is before us now. Congress was allowed to regulate private activity in all cases. There is no precedent for mandating inactive citizens to act for the benefit of interstate commerce. The slippery slope is very clear and cannot be dismissed because it was never taken before. Keep in mind that we will have Republican administrations in the future, and keep in mind that other “crises” will most definitely materialize down the road.

    Perhaps this is laughable, but universal health care should be financed by taxation, not a questionable mandate born out of compromise, which is neither a horse nor a donkey, and which was not supported by the President before he became President (and he should know a thing or two about the Constitution).

  24. MD, just wonder what your take is on this constitutional ruling?

    “Dred Scott v. Sandford, 60 U.S. 393 (1857), was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves (or their descendants,[2] whether or not they were slaves) were not protected by the Constitution and could never be U.S. citizens.[3] The court also held that the U.S. Congress had no authority to prohibit slavery in federal territories and that, because slaves were not citizens, they could not sue in court. Furthermore, the Court ruled that slaves, as chattels or private property, could not be taken away from their owners without due process.”

  25. v
    Very shallow for you to assail me without knowing much about me. Do you really think this law is constitutional?

  26. Dear Supreme Court, if you damage health reform, leave your activist prints on it
    Harold Pollack

    Before me is a beautiful column by Professor Mark Hall which describes the many logical and legal flaws in the 11th Circuit’s recent opinion declaring the individual mandate to be unconstitutional.

    I can’t add legal insight to what Professor Hall has produced. I confess I find it laughable that people contest the connection between this mandate and interstate commerce. Long-standing federal policies regarding agriculture subsidies, medical marijuana, minimum wage, and many other matters have similar or weaker claims on the same terrain.

    Reflecting years–indeed decades–of legislative fighting, interest group negotiation, and health services research, American government has finally enacted a package to achieve near-universal coverage. The final product includes a fairly weak individual mandate to keep as many people as possible in the insurance pool and to deter free-riding.

    Health services researchers, public managers, and politicians from the Heritage Foundation to Mitt Romney to Karen Ignani to Nancy Pelosi to Hillary Clinton to Jon Gruber to Barack Obama have long understood that one can’t provide guaranteed-issue and community-rated health insurance without mechanisms to address adverse selection, some mechanism to prevent people from free-riding and then signing up for coverage when they become sick or injured.

    Health care is a unique, $2.6 trillion national enterprise that implicates every level of government. It affects virtually every economic entity and interest group in the country. Fifty million people in America are uninsured. Millions more who require some combination of government and other help. Uncompensated care is a huge national concern. It affects everything from Medicare and Medicaid to the closure of the community hospital. Cost-shifting is a serious concern, too.

    The new health care law includes hundreds of billions of dollars in affordability credits to ensure that low- and moderate income people can afford coverage. By all accounts, the individual mandate is important component to arrangements. The mandate is projected to have a significant impact on health insurance premiums, the number of uninsured, and other national matters.

    The mandate may or may not be optimal public policy. It’s a plausible and reasonable policy, negotiated among interest groups and policy experts subject to many months of analysis, congressional hearings, and public debate. This is precisely the sort of matter that a restrained judiciary would let the president and congress to hash out.

    Although this bill is ideological moderate in its details–with provisions reflect many past and present Republican proposals—it achieves the historic progressive goal of near-universal coverage. More important, it is the domestic policy centerpiece of the Obama presidency.

    So Republicans wish to kill it, on both ideological and partisan grounds. As a matter of partisan politics, they are entitled to try. Their use of judicial activism is much more hypocritical and problematic. Republican governors have filed lawsuits challenging the constitutionality of the individual mandate. It’s hard to believe that the same suits would have been filed against the individual mandate in Republicans plans of two decades ago.

    These same politicians hope that conservative jurists will help them prevail. Given what happened in Bush v. Gore and Citizens United, the current Supreme Court majority might well help them do it. When one cuts through hundreds of pages of majority opinions and dissents—not to mention the vocabulary of decorum barnacled onto an increasingly partisan legal process–that’s really what this is about.

    I would ask one thing of the Supreme Court: If you do this, do it openly. Write an opinion whose partisan frame and extreme pre-New-Deal reasoning are plain to the American public. You will wound president Obama. In doing so, you will spark a long-overdue conversation about how both parties could better-create a genuinely nonpartisan judiciary that commands, and that deserves, political legitimacy.

  27. “It is fun to ignore the constitution, too, Bobby.”

    Right. For people like you, “unconstitutional” simply means laws and SCOTUS decisions with which you disagree.

    Far from ignoring the Constitution, it was a core element of my graduate study and thesis in the 1990’s.

    For the record, I am no big fan of the PPACA individual mandate — a tortured “ends justify the means” proviso enacted to avoid facing the access issue head on.

    None of these difficulties is exactly news. See Elhauge’s 1994 “Allocating Health Care Morally.”

  28. Let me help you out here. In a nation of ~310 million people (nearly 100x what it was when they signed the Constitution) and a planet of ~7 billion people, you don’t get your way all the time.

    You get one vote.

    Moreover, with respect to “rights” properly not subject to plebiscite, your “rights” exist to the extent that the rest of society will defend them.

    I know it’s fun to ignore the basics.

  29. One hardly knows where to begin in the wake of such sophomoric simplistic complaints. Pointless to even try, I suppose.

  30. Except for the fact that they are all unconstitutional. I will stomp my feet when the rules are broken.

    The entire premise of the constitution is that they are not the boss of me.

  31. “There needs to be more companies like these.”

    Looked at the state of Texas health care lately? I don’t think more insurance brokers “like these” is going to solve affordability and personal responsibility for buying insurance.

  32. Yeah. Well, here’s another question:

    What would be a reasonable estimate of lives lost and health worsened given the diversion of all of these FTEs (barstool Constitutional geniuses aside) from actual care delivery to chewiing ad nauseum over this crap, this Cirque du Soleil jurisprudence?

  33. How’s this for an internal contradiction:

    The author downplays the slippery slope argument by pointing out that Congress, through a variety of events that have negatively impacted our economy and country, has never invoked the mandatory purchase of a product or service; while also pointing out that, ” The Supreme Court’s most definitive statement of the Necessary and Proper Clause’s function remains Chief Justice Marshall’s articulation in McCulloch v.Maryland: 17 U.S. (4 Wheat.) 316, 421 (1819)”, as support for the individual mandate.

    The 11th Circuit’s Opinion stated that nothing that Marshall wrote gave previous Congresses the idea that such power existed. So what’s more likely: that the absence of mandating such purchases implies that it is beyond what Marshall intended, or that previous Congresses used restraint in exercising constitutional power?

  34. LOL…

    It’s never enough for people like you to assert that a policy or program is unwise, ineffective, or otherwise wasteful. It’s always gotta be “unconstitutional!”

    Simply a poignantly pouty stomp-your-feet pissed-off 6 yr old “You’re-Not-The-Boss-of-ME​!” philosophy.

  35. The entire law needs to go. All of government benefit programs need to go.
    They are all unconstitutional.

  36. Y’see, what we need and want is not ACTUAL health CARE, we want umpty nine hundred inscrutable health care “PLANS.”

  37. There are a few makes to accomplish it;

    Fully Insured Assoc plan is one, you go to Anthem or United and say I have 10,000 members and want to do a health plan. With this model your really not doing anything different then what carriers do every day. Its more a marketing ploy then a cost saving solution

    Fronted plan would be next, fronted means you have a licensed insurance company issue the policies. Behind that someone else can take the risk. If you manage the risk better you can save money but you pay 5-10% for the paper/policy to front.

    MEWA multiple employer welfare arrangement avoids the fronting paper but is only legal in a handful of states

    MET Multiple employer trust is similar to MEWA but you have a trust that takes the risk and usually issues the polciies, also not allowed in many states.

    what would be interesting would be to study which is worse, laxer regualtion of who can write insurance and take risk, some will fail and people will lose coverage and have unpaid claims or very strict rules which limit and imped creation of insurance companies but drastically increases the number of people that can’t get insurance. I think we have gone to far with regualtion to the point legit attempts to insure people are blocked not just questionable ones.

  38. Maybe they’ll relax the regulations now. I know some professional associations (like IEEE) are providing this type of service for their members. Do you know what makes them different?

  39. You can make smile faces too type : – ) with no spaces between the characters and they will magically turn into a smile….
    Besides Romney seems to have a perpetual smile on his face, so I thought I’ll contribute mine….

  40. Romney would like to discuss that with you

    just because you know how to make smily facers doesn’t make you cooler

  41. our under-regulated healthcare system has numerous laws against this

    one party in particular wants to make sure Unions don’t have any competition thus the killing of AHPs for 15 years

    it would have been incredibly effictive at lowering cost and decreasing the uninsured rate

  42. “You would need to be part of a group to get insurance”

    I see this as an opportunity for a quick to act entrepreneur. Create groups that people can sign up for and purchase insurance together. Perhaps a non-profit community based co-op or something like that….

  43. What’s “proper” Constitutionally is what SCOTUS determines it to be. Everything else is just theory.

  44. 6-3 to uphold.




    5-3 if Kagen recuses.

    From the wires: “…Orin Kerr, a George Washington University law professor, predicted Roberts and Kennedy both would likely end up voting to uphold the individual insurance mandate.

    He cited an opinion by Kennedy in 1995 and the expansive view that Roberts recently supported of the power of Congress under the Constitution to adopt laws necessary and proper.”

  45. I think the more likly outcome would be that which befell children under 18, the individual health insurance market would just disappear. You would need to be part of a group to get insurance or take Medicaid.

    It is also conceivable that the fully insured group market would also disappear due to the stringent underwriting guidelines and adverse regualtion.

    Number 2 is to exciting professionaly to even ponder, chills of excitement

  46. I would love to drop the mandate, that way I could wait until I was sick to buy insurance, which is guarantee issue by the way. I wonder if the insurance companies will argue in the supreme court for the mandate?

  47. “The reason these are different than food and housing is that various levels of quality in food and housing do not endanger life.”

    Tell that to the raw milk drinkers getting raided by swat teams and held at gunpoint.

    Housing projects don’t endanger lives?

    What are slum lords and why do we have laws protecting their tenants?

  48. Very good, Nate. I agree.

    If health insurance is sharing risk, then just like sharing risk of being overrun by hordes of enemies, or risk of being poisoned by filthy water and filthy air, the direct risk to body and limb posed by disease must be shared through taxation mechanisms.
    The reason these are different than food and housing is that various levels of quality in food and housing do not endanger life. There are no variations in need for national defense or need for clean air, and there are no variations in what is needed to survive severe trauma.
    And I am not talking about massages and private rooms with big screen TVs here, Nate.

  49. Nate, this is not a liberal or conservative issue. Whatever you think about the constitutionality of the individual mandate, and I think it is unconstitutional, the Court should not interfere with elections one way or the other.

    As to those “people” here to see me, I would like to remind you that contrary to common wisdom health plans are not “people” 🙂

  50. “Considering that nothing kicks in before 2014, there is no urgency.”

    Good thing I don’t get emails like this every day with things I have to do and spend money on now…..oh wait, I do get these every day and spend money on them.

    The Administrative Simplification section of the Patient Protection and Affordable Care Act (ACA) requires health plans to adopt operating rules. According to the ACA, three sets of healthcare industry operating rules will be approved by the Department of Health and Human Services (HHS) and then implemented by the industry based on a series of deadlines occurring over the next five years.

    If the bill is struck down will the DNC and Margalit reimburse all my cost?

  51. “Yet, as I noted in a THCB post a couple of months ago, insurance IS unique, neither a tangible product nor a service, but rather the sharing of risk.”

    Insurance has always been a terribly inefficent way to provide healthcare to poor people. If Congress can mandate people buy healthinsurance to subsidize healthcare for poor people why not replace food stamps with food insurance? Instead of paying at the grocery store or restraunt you show your food insurance card. Rich greedy people will pay more and the excess funds can be used to pay for poor people to eat. Why do rich people get 4 star restraunts and the poor get fast food? Additoinally it would allow the government to track what people eat to make sure it is healthy. If the government is paying for your healthcare they have a right to make sure your eating healthy.

    Housing insurance to replace Section 8, sounds good to me.

    Just think how much more affordable flood insurance would be if people that didn’t live in flood zones also contributed?

    Heck imagine if people that didn’t own homes were forced to buy flood insurance how well that would spread out the cost.

    Health insurance is only unique in that congress hasn’t repeated the same istakes they made with Medicare and Medicaid with food, housing or anything else…….yet

  52. It is about doing what is right, not what is politically or personally convenient. And besides, from my perspective this should be an 8 justice opinion, as Kagan will not be unbiased nor objective per her role in supporting this legislation’s passage before she was nominated to the bench.

    And yes, I know, Scalia and Thomas are also not objective and impartial, but, they did not render an opinion on something they personally were involved in that affects the entire USA like this PPACA legislation.

    It seems to be fair and impartial and responsible in a jurisprudience manner is incongruent with being nominated to be a judge!!!

  53. “If the Supreme Court has any shred of decency,”

    Apparently decency is now measured by whats in the best political interest of liberals not whats right or best for the country.

    “Considering that nothing kicks in before 2014, there is no urgency.”

    Margalit there are some people here to see you;

    Health Plans required to cover adult dependents up to age 26

    Every health plan required to remove lifetime and annual limits

    Kids under 18 that can’t get insurance becuase Obamaccare killed the market

    Plans required to cover preventive services at 100% including the broad list just comming out

    Everyone paying an extra 3-5% in premium from the few changs already enacted.

    No urgency to see your bill struck down, there is incredible urgency on the part of everyone forced to deal with this mess.

  54. Good observations.

    My guess would be 5-4 against at SCOTUS with respect to “individual mandate.” Implications of the lack of “severability” are another matter. The cynics assert that leaving the language out was no accident. I just don’t know. PPACA without the mandate would likely be a ghost law.

    I called it “equal parts corporate welfare and outright (endlessly means-tested) welfare” early on.

  55. I may be being unfair to the two distinguished judges who wrote the Eleventh Circuit opinion, but I suspect that their lengthy recitation of case law followed—rather than justified—their more gut-level reaction (also included in the opinion) of: “We are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”

    Clearly, the government lawyers failed to persuade the Court that buying health insurance differs from other purchases. Yet, as I noted in a THCB post a couple of months ago, insurance IS unique, neither a tangible product nor a service, but rather the sharing of risk. Those who don’t share risk directly increase the costs of those who do.

    Whatever the merits of the unique nature of insurance, the Obama administration is clearly now in a tight spot. They can appeal the ruling of the appellate panel to the full Eleventh Circuit in the hope of delaying any action by the Supreme Court (with the risk that they will lose again at the appellate level), or they can hope to be more persuasive at the Supreme level (with the risk that they will fail just in time for the 2012 election).

    And, even if the administration is—against the odds, I suspect—successful in the Supreme Court, it will merely postpone the public (and political) outcry when the ACA’s penalties are imposed on those without coverage.

  56. If the Supreme Court has any shred of decency, they will not accept this case before 2013, or at least not rule before the end of 2012. Considering that nothing kicks in before 2014, there is no urgency.
    I think the Court should make a conscious effort to stay out of the, equally unconstitutional, business of appointing Presidents.

  57. “It gets much easier after that one starting step.”

    Solving the cost issue of healthcare is easier now that Medicare has us in a 40 trillion hole? I would think helping 13% that needed it in 65 would be easier then 19% today and all the otehr problems it has created. If your first step is backwords you haven’t made the journey easier.

  58. I fear understanding Mark Hall’s lawyerly nuances is beyond my pay grade. However, here is my opinion on the Atlanta Appeals Court decision on the constitutionality of the individual mandate and the upcoming Supreme Court opinion, as expressed in my Medinnovation blog
    The decision paved the way for a Supreme Court decision on the matter. This will probably occur in the summer of 2012, before the Presidential election. The decision will rank right up there with Gore vs. Bush, and will have the same election consequences.

    If the Court declares the mandate unconstitutional, Obamacare goes down. Obama loses. If the Court decides the mandate in constitutional, Obama wins.

    Which leads to this bit of doggerel.

    That Obama’s fate depends on the Supreme Court’s direction,
    And its effect on the November 12, 2012 Presidential election.

    That it comes down to Obamacare and the economy,
    Not to Perry, Romney, or political astronomy.

  59. The uninsured will hate it the most. They are mostly uninsured by choice. For most of them that is the smart play.

  60. What are you sir, an endless loop?

    When I stroll by and read posts like this, it is like an accident that has so much carnage, you have to look and ask questions.

    Otherwise, having read some of the endless threads you and others pontificate in, I stay away from those like the plague.

    Umm, you could ignore me, as I choose to do with you 95% of the time.

  61. Funny, you seem to be the only one with this crusade to protect Ms Pelosi, you think that hiding behind semantics of comments changes the intent of the comment.

    Nice try, but how is it playing out in reality? Exactly as it was intended, we are finding out what is in the legislation as their calendar due dates arrive. Anyone else who is paying attention disagree with my interpretation?

  62. All knocking the individual mandate does is make it more expensive for Congress to accomplish the same objective. “Necessary and proper” and the expansive interpretation of the Commerce clause are simply blank checks for the federal government to do what it wishes.

    Losing the mandate does not cripple the law; states can enact it if they choose, or the feds can simply attach conditions to access to exchange subsidies, including more rigorous open enrollment policies, longer waitings or locking people out for a number of years who fail to enroll.

    Given the unpopularity of this law, the Roberts Court will not pay a huge political price for knocking out the mandate, while leaving the rest of this sprawling mess of a law intact. The REAL problem is that even the uninsured don’t like this legislation, let alone the rest of the tax paying public.

  63. You must buy a car. You have to get around somehow..

    You must buy a house. You need to live somewhere.

    You must buy a cemetary plot. Sooner or later…

  64. “slime House Leader made her disgusting comment of finding out what is in this legislation after it is passed?”

    You never pass up an opportunity to mischaracterize what she actually said.

    I thought you were done here, btw.

  65. And you never read or hear how policy is made to dictate actions and options for lawyers. God forbid somehow that profession has to answer to a higher power. Which is why physicians need to finally realize that politicians have no freakin’ clue how to manage health care. As I have written over and over again, just strike as a group to deny routine care for just 1 week and watch the masses literally descend on the Capitol in DC to demand action.

    What, will they jail us all and have nurse practitioners and physician assistants take over the health care for the country? Yeah, we’ll see how long the public would put up with that. Again, what, a week!?

    It is coming to that kind of response by doctors to get the country to wake up and smell the septic pool that is Washington!!!

  66. “The fact that Congress has never before exercised this supposed authority is telling . . . ”

    The fact that Congress is choosing to do so now is equally telling. One has to start somewhere. It gets much easier after that one starting step.

  67. “The fact that Congress has never before exercised this supposed authority is telling . . . Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle . . . ”

    If this was a Repubican agenda, which we did see by the way we declared war on Iraq who was not a direct threat to this country to begin, why is it we would be reading how outrageous and intrusive this legislation would be by writers like this? These hack defenders and apologists really are insulting at the end of the day, per this kind of rhetoric as above.

    The Democrats only replicated the behaviors of their predecessors from 2000-2006 when they became a block majority in ’08, except here, they are declaring war on the very citizens they allegedly represent. Doesn’t anyone with half a brain paying attention to how PPACA is disrupting the country truly care of it’s true intent as these absurd and intrusive policy processes are being exposed after the slime House Leader made her disgusting comment of finding out what is in this legislation after it is passed? Yeah, only when these pathetic defenders and apologists are directly affected negatively will they then shrilly cry out how this is not going so well after all.

    Well, we’ll see how it goes when the Supremes review and rule on it by early 2012 hopefully. Oh, by the way, if one of the Republican nominees to the court had a conflict of interest would we be reading in every lame stream media source how such Justice should recuse himself from the ruling. You think we’ll hear this about Kagan being there?

    Don’t hold your breath too long, as after 30 seconds you’ll be straining to inhale!!!

  68. “doomed to failure by its own internal contradictions.”


    Shall I recount some of the jurisprudential contradictions proffered by none other than Legend-In-His-Own Mind SCOTUS Justice Scalia?

    Were it only that a compelling weight of facts, evidence, and logic uniformly held the day.

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