Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. See here and here and here. Their reasoning is unconvincing and deeply flawed. Since I’m writing in part for a non-legal audience, I’ll start with some basics and provide a lay explanation. (Go here for a fuller account).
Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.
We once thought Democrats would accept tort reform to win Republicans’ support for national health care legislation. Now, however, Democrats have dispensed with bipartisanship. Perhaps they think they can ram health care legislation through without any Republican backing. Perhaps the price required to obtain even a few Republican votes was too high. Perhaps Democrats received too much pressure from the trial bar. Whatever the reason, neither the bill passed by the House nor the bill pending in the Senate contains any of the tort reform provisions Republicans want. To the contrary, the House health care bill is anti-tort reform.
Not only does it reject the entire slate of lawsuit restrictions Representative John Boehner put forward in the Republican alternative to the Democrats’ bill; it contains a provision that will reward states for scrapping damages caps and other tort reforms many already have in place. This provision flew beneath the radar during the House debate, but the editorial board of the Wall Street Journal condemned it after the vote took place. Describing the provision as a “hidden Pelosi tort bomb,” the Journal editors predicted that “[i]f it passes in anything like its current form, we are going to be cleaning up the mess for decades to come.”
Most predictions that the sky will fall are wrong. This one is wrong as well.
The House vote to establish near-universal health-care coverage came at a steep cost to women. That cost, issued as an amendment by Rep. Bart Stupak (D-Mich.), eliminates abortion coverage by private insurance companies even when women are paying for all or most of the premium.
Stupak’s amendment is a cynical attempt to push an anti-choice agenda that imperils badly needed reform. His amendment restricts women’s access to abortion coverage in the private health insurance market as well as in a “public option,” undermining the ability of women to purchase private health plans that cover abortion. It reaches much further than the Hyde Amendment, which has prohibited public funding of abortion in most instances since 1977.Continue reading…
President Obama has promised not to sign any health reform legislation that increases the federal deficit. This promise recognized rising public concern about an Argentinean fiscal trend that, unchecked, could leave us with $19 trillion in federal debt in a decade.
Without that pledge, given the current economic climate, health reform would be one dead mackerel.
Some clarifications are essential here. I’m a Democrat and fervent Obama supporter. I voted for him twice (and that was just in the Virginia primary). I’m proud of our President. He has first class economic and healthcare teams. He deserves credit for not postponing health reform. He’s right: it’s simply not tolerable, morally or economically, for a wealthy nation to continue having close to 50 million uninsured people.
There’s a big to-do about whether there are really any cost-saving measures in the House and Senate bill. Most people say that the answers are “no” and “sort of”. There’ll be much more discussion about that on THCB this week, and I suspect the answer will really come down to whether or not pilot programs which have the potential to reduce costs can be both successfully piloted, then extended by CMS and then protected from Blue Dogs, reps from academic medical centers, Republicans saving Medicare and basically everyone in Congress carrying the industry’s water. So “sort of” may well mean no.
But let’s not dwell on that. Instead let’s have some fun. Regular THCB readers will know that AHIP’s Karen Ignagni has told half-truth after half-truth after outright lie to protect the position of her members. All the while somehow holding together a coalition that really should have broken apart long ago (and may yet still do that). And she gets paid very well for that role.
But today in the WaPo she told the truth:
Karen Ignagni, president of America’s Health Insurance Plans, said the Senate bill includes only “pilot programs and timid steps” to reform the health-care delivery system, “given the scope of the cost challenge the nation faces.” Unless lawmakers institute changes across the entire system, Ignagni said in a statement Wednesday, “Health costs will continue to weigh down the economy and place a crushing burden on employers and families.”
Don McCanne (who runs the Quote of the Day service from the PNHP) puts the boot in:
There could not be a more explicit admission that the private insurance industry is not and never has been capable of controlling our very high health care costs. <snip> Karen Ignagni says that the lawmakers must institute the necessary changes across the entire system (because the insurers can’t). Let’s join her in demanding that Congress take the actions necessary, and then thank her for her efforts, as we dismiss her superfluous industry from any further obligations to manage our health care dollars.
And it’s basically true. Health plans have no ability to overall restrict health care costs. And worse, because they’ve been able to charge more to their customers than the increases they’ve received from their suppliers, they do better in a world in which costs go up.
Of course Ignagni knows that gravy train can’t roll on forever, so she’s trying to craft a future in which the health plans can continue to make money, yet not bankrupt their customers outright. Whether it’s good for the rest of us remains a very open question.
Meanwhile, in another example of catching someone saying something that they don’t really understand the meaning of, Uwe Reinhardt busts Sen. Kay Bailey Hutchinson (R-TX) as saying that not having insurance coverage is rationing and shouldn’t be allowed. Well she may know have thought she was saying that, but that’s what she was saying.
The latest polls are an unmitigated disaster for Democratic efforts to get their health care bills passed.
This from Rasmussen this morning:
“Just 38% of voters now favor the health care plan proposed by President Obama and congressional Democrats. That’s the lowest level of support measured for the plan in nearly two dozen tracking polls conducted since June.
“The latest Rasmussen Reports national telephone survey finds that 56% now oppose the plan.
It does seem to take a health care bill to remind us all how incredibly screwed up the political process is in these here United States. The Medicare Modernization Act was railroaded through by Tom Delay and friends using all their charm and finesse. And last night the House passed its version of the health reform bill. It includes employer mandates, exchanges, subsidies, public option and taxes on those earning more than $500,000 to close the cost gap. And CBO in its wisdom says that it doesn’t increase the deficit.But it didn’t pass by much. 40 Democrats opposed it. These were the Blue Doggers who needed some political cover to be able to say in 2010 that they were against the bill before they were for it. Their expected course of action is that a less liberal bill comes back from final conference with the Senate which they can support. Apparently out there in purple state land uninsurance and egregious health plan behavior are not a problem—at least not compared to the desire of the people to protect the incomes of those earning over $500,000 a year.
But in order to stop even more Democrats opposing it at the last moment Pelosi had to let some previously unheard of Congressman called Stupak become the mouthpiece of the Catholic Bishops who decided that they needed to impose their views about reproductive medical care into the debate. Cynics like me may wonder about the validity of views on that issue from a bunch of old men who’ve allegedly never been married or had sex with a woman, and whose main contribution to child welfare over the past few decades has been to ignore and assist in flagrant abuses of it by their colleagues. But no matter, over recent days they started putting pressure on various Democrats to tighten restriction on Federal funding of abortion.Continue reading…
It’s decision time. The Congress will or won’t pass a major health care bill during the next few weeks.Will we get health care reform in 2009?Almost certainly not. As I have been saying for months, if we get a bill it will be more a trillion dollar entitlement expansion funded by relatively minor provider cuts and about $500 billion in tax increases.
That is not health care reform.Will we get that trillion-dollar entitlement expansion health care bill?That outcome lies in the coming convergence on Capitol Hill of three extraordinarily powerful, and contradictory, forces.
As an exceptionally grumpy American summer grinds to a conclusion, it is apparent that only a bipartisan solution will enable Congress and the Obama Administration to complete health reform. No, we’re not talking about co-operating with the Republicans. Other than a handful of contrarian Republican moderates on the Senate Finance Committee, at least one of whose votes might be needed for eventual passage, the Republicans are irrelevant to the final outcome.
No, the bipartisan solution we’re talking about is co-operation between the two Democratic parties represented in Congress: the “Safe-Seat” Democrats- the Pacific Heights/Beverly Hills/Berkeley Hills/Upper West Side/Harlem Democrats and the “Running Scared” Democrats from the western, southern and border states, who actually require independent and some moderate Republican support to get elected. These parties have very little in common other than the Capital D after their names.
The Congress has investigated about every conceivable way to tax people to pay for the health care proposals—a millionaire’s tax, bigger taxes on home mortgages and charitable contributions, and a couple of dozen more ideas.
Now Congress looks to be the most interested in taxing insurance companies to pay for a big chunk of their health care proposals. The new taxes would come in two parts––a 35% excise tax on any health benefit cost above an $8,000 single and $21,000 family annual premium as well as a flat $6 billion annual tax on the industry to be allocated among the companies proportionate to their premium.
There is certain logic to this. Taxing high priced benefits could help deflate the health care economy. Taxing all of the health insurance companies that stand to get more than a $1 trillion in new business—most of it in the from new private insurance and Medicaid subsidies and the rest from the consumer’s share of those new private plan premiums—seems fair at one level.
Calling for a tax on that big rich insurance company also sounds a lot better to the politicians than looking voters straight in the eye and raising their taxes directly.Continue reading…