08 October 2010

Health Care Reform Law upheld (for now) in Federal Court

Not the final word -- far, far from it, one would expect -- but the first verdict on the merits of the constitutionality of the PPACA:
On Thursday, U.S. District Judge George Caram Steeh issued a ruling in Thomas More Law Center v. Barack Obama. It's one of a dozen lawsuits the opponents of health care reform have filed in federal courts, in an effort to roll back the Affordable Care Act. But it is the first case in which a judge has issued a verdict. And the verdict is pretty much a wholesale win for reform.

The plaintiffs in this case are the Law Center, a conservative public interest law firm based in Ann Arbor, Michigan, along with some Michigan residents. The focus of their lawsuit is the individual mandate--the requirement, which becomes effective in 2014, that all Americans obtain a "creditable" health insurance policy. ("Creditable" is wonkspeak for a policy that includes basic benefits, as defined by the government.) According to the plaintiffs, the federal government has no right to impose that requirement, since it would compel people to spend money on health insurance instead of some other good.

In response, the Obama Administration has argued the authority to impose the mandate lies in two separate constitutional provisions--one that gives the federal government power to regulate interstate commerce and one that gives the federal government power to tax for the sake of promoting the general welfare. Steeh basically agreed with both propositions.
So, good.  This is what basically all legal scholars have been saying all along: the law as crafted is completely within the traditional interpretation of the powers of the Federal government.  What (or who) will ultimately decide this, I suspect, is Anthony Kennedy. This will go to the Supreme Court.  At some point, a Federal judge who is a member of the Federalist society will strike down the law, and the Supreme Court will be called on to resolve the lower-court conflict. Or, if the law is upheld on appeal across the board, plaintiffs will appeal to the SCOTUS, and it's hard to imagine them turning down such a major case. In fact, the Roberts bloc will be only too happy for an opportunity to radically restrict the reach of the Commerce Clause (a long-time irritation for small-government conservatives), and at the same time deliver a crushing partisan blow to liberals. The four center-left judges will support the traditional interpretation of the Commerce Clause. What will Kennedy do? He's generally been relatively small-c conservative, but has been willing to sign on to some fairly radical rewritings of constitutional law (Citizens United, most prominently).

I honestly have no idea what is going to happen at the SCOTUS level, and an awful lot of power is concentrated in the hands of one relatively inscrutable guy.

Buckle up, folks.


  1. Is it a legal requirement for Americans to have car insurance? We are legally obligated to do so up here in Canada.

  2. @Timmyson,

    Yes, it we are legally obligated to have car insurance IF we drive. If you choose not to drive, we are not obligated to carry automobile insurance. Sounds like a "DUH" -- well, as to the requirement to carry medical insurance, it will be simply because I exist. Doesn't matter if I never use it. I can't remember the last time I used my medical insurance which is provided to me by my employer -- it's been at least 15 years, but the nanny government will force me to enter into a contractual relationship and force me to spend money on something I don't use. I have been uninsured in the past while between jobs and have paid out of pocket when necessary and have chosen not to be treated simply because I could not afford it.

    In essence, the mere fact that I draw breath will force me to purchase something that I don't use. Requiring car insurance is a bad example because I only need to purchase it if I choose to drive. No one forces me to drive. As well, it designed to protect others should I be at fault in a traffic accident.

    I am hoping against all hope that this will be overturned.

  3. You're obligated to have car insurance if there's a possibility you might get in an accident. You're obligated to have health insurance if there's a possibility you might get sick. Simple parallel, especially since the costs of getting sick exceed the what an individual can pay, and we will be forced to provide charity care if you do get sick.

    But this argument has been made before, and if it didn't convince you then, then there's no way it'll convince you now. But I can't leave the weak point unrebutted.

  4. You're obligated to have car insurance if there's a possibility you might get in an accident.

    No, that's not true. There's always a possibility to get into a car accident -- it's not an "if there's a possibility." I am obligated to have car insurance to protect anyone that I may hit. The fact is that I am making a chose to spend my money on car insurance because I want to drive.

    I also understand the reasoning for forcing folks to purchase medical insurance. It's not only to make sure I have insurance if I need medical care, but it also pays for others who need it. Bigger pool with more healthy people as opposed to a pool of insured folks who have a legitimate need to use it. Also, it pays for those that are not working and have no means to pay their medical bills.

    The only reason you would be required to provide charity medical care is because you are forced to. The government forces you to work for free. There you go, you are forced to work for free. That will change the citizens of this country are required to make purchases against their will.

  5. @bb

    We are obliged to pay Social Security tax, some of which is used to pay benefits to certain qualified disabled individuals.

    We are obliged to pay federal gasoline excise taxes, some of which funds public transit.

    We are obliged to pay income tax, which paid billions of dollars for worthless exercises such as the war in Iraq, the war on drugs, and the war against terror. I salute our brave men and women that so proudly serve our nation, but I abhor the tremendous loss of lives and waste of resources.

    Supposing you may not qualify for SSDI, use public transit, or serve in the military, does your reductio ad absurdum argument WRT health insurance still apply?

  6. @Anony 6:43

    You're speaking of taxes. This new health care bill is not a tax but instead a requirement that citizens make a purchase that the government deems her citizens must make.

    I am forced to enter into a contractual relationship with an insurance company IF I choose to drive. If I make the choice to take public transportation, I don't have to purchase car insurance. On the other hand, I will be forced to enter into a contractual relationship simply because I exist.

    This health care bill is not a tax and that's what you are trying to compare it to.

  7. @Shadowfax: The "traditional" interpretation of the commerce clause is not so traditional, That madness only started in the 1930s, when the court was packed with left-leaning judges.


  8. bb:

    It would help if you actually understood what you were arguing against. The government is not requiring you to purchase insurance. It does however impose a tax penalty if you decide not to purchase health insurance. Hence the tax part of the bill.

    And the purpose of buying health insurance is precisely the same as buying car insurance. It is in part to protect others from your actions. Specifically the use of health care resources that society is obligated to provide that you are otherwise unable to pay for.


  9. Felix -- agreed. Having said that, 80 years of "tradition" is not insubstantial, and a very great deal of the government's activities are predicated upon it. Which doesn't make it sacrosanct at all; but it does mean that a change would be very wide-ranging and merit very serious consideration.

    bb -- I agree that it's irritating that we are being forced to buy insurance from private companies. It would have been really nice if there had been some sort of option, I don't know, some sort of public plan that we could have opted into instead of private insurance. But that's just crazy talk.

    Having said that, it's pretty silly to quibble over whether this is a tax or not. it's a government-mandated expense that happens to be channelled through private contractors instead of through the government directly (for better or for worse).

    And also, you complain that you have to buy something that "I don't use." The word you left out is "yet." Inevitably you will get sick and ultimately you will die, and you cannot predict when that is going to happen or how much medical care you will consume in the process. One way to think of insurance is to amortize the lifetime cost of medical care over your working years, in addition to hedging against unpredictable excess expenses. This is in addition to the completely accurate comment you made about pooling.

    However you look at it, the only way it works is if you get everybody in the game early on, before they probably start using it.

  10. OK, here's a challenge for you:

    Suppose you are one of those people who is insufferably healthy for the duration of their lifespan, never had a significant injury or accident requiring medical care. You are forced to buy insurance because the government says so, and then die of natural causes in your sleep with no medical care. You have now received exactly zero benefit for your costs. If you refuse, you get taxed instead.

    On the other hand, you're a couple who chooses to deliver a child with massive birth defects (for even more fun we could say these defects were caused by the woman's choice to use substances during pregnancy that are known to cause defects). You are required to purchase insurance, which either (a) has such high premiums they are unaffordable and the government winds up subsidizing much of the costs of your personal decision (b) the insurer gets screwed into subsidizing the costs due to built in government regulation (which naturally has to raise the costs for everyone else to cover), or (c) you just pay the tax fine and have no coverage and then the government has to pay all the costs anyway.

    How in any way is this system fair? How in anyway can it be said the the person who is effectively "lucky enough" to be healthy being given a fair shake here?

    I'll even go one further on that line: Should not all the costs of all the premiums be the exact same for everybody? If (by your logic) everybody HAS to bear part of the costs, why is it that someone unlucky in the gene-inheritance lottery has to pay more? It's not like they chose to have MS, DM1, Tay-Sachs, etc, etc ad nauseum.

    If the system has to be part way "fair", shouldn't it be completely fair?

    Since it isn't, and there is no chance it ever will be, I'll pass, thanks.

  11. Dean,

    First of all, you asked "Should not all the costs of all the premiums be the exact same for everybody?" To which the answer is, yes, they should and under the HCR law they are. That's something called community rating, and it's soemthing that policy wonks have argued for a long time.

    Second, you talk about people "choosing" to deliver a sick child, like health or sickness is a choice that people make (and that I suppose they therefore bear responsibility for that "choice.") Parents don't choose for their child to get ill, and they'd be pretty shitty parents if they chose to let their child die untreated. Nathan Gentry didn't choose to get neuroblastoma, nor was it in any way the fault of his parents. His treatment cost more than you and I will likely earn in the entirety of our lives. So as satisfying as it is to blame the sick, it doesn't hold water in the majority of cases.

    Finally, on the example of the guy who is unlucky enough to be healthy and never use the medical insurance he is obligated to buy. True, he "lost" the bet that insurance is. But the thing is, none of us knows *in advance* whether we will be ill or not. Insurance is a hedge against the UNKNOWN risk of whether we will become sick.

  12. Feh...

    *I* am one of those unlucky people who didn't "choose" to have an illness, but here I am, and I still don't want the government determining and paying for my care.

    I deal with people on Medicare, Medicaid, and with patients under the VA health care system all the time. The VA is the best example of government run managed care, and no matter what anyone says about how it is supposed to work, care is slow, spotty at best in quality, calling the VA is an hour long ordeal of hold time and you generally never get to speak with who you need to anyway, wind up leaving messages that go unreturned (then you have to restart the process all over again). The VA formulary is limited (diabetics get their NPH, or both, syringe only, no pens, no long actings, just as an example), they save money by buying meds from the lowest bidder, so patients have to cut their pills in half to get the prescribed dose, and refills are sometime delayed because they run out!

    It's effectively rationed, you don't get choice in your care, service stinks and the quality of your doctors are hit and miss.

    Go get a job there and see it from the inside and get back to me.


    I used the "Choose to deliver the sick child" example as an extreme case of where the costs of choice are passed along to everybody. At what point will the government not decide to intervene in our choices because health care costs are high.

    People make bad health choices all the time. So let's conceded everyone pays the same premium. Well now we're all subsidizing the unhealthy habits of all the people out there too. Smoking, obesity, failure to exercise and eat the proper diet, substance use and abuse, etc. How long before some smart bureaucrat decides the FCR needs regulations to mitigate those costs?? Not long, I bet, and from there it's a slippery slope.


    I agree our system doesn't work well for everybody, but there is no government system that can do better. We have real life examples, and it isn't pretty.

    Maybe things need to change, but this program is not the answer.

  13. Most government run systems (i.e. pretty much the rest of the world) do work better, in terms of cost, quality and outcomes. Which is entirely beside the point, because we didn't get a government-run system, but a government-subsidized privately-run system.

  14. Dean,

    The healthcare reform will be promoting prevention as I understand it.

    You point about the VA is not restricted to government really because you can go to many private hospitals where you will experience less than great care, and what’s more you’ll have a hard time finding data on outcomes from many private places. VA hospitals routinely score more highly in satisfaction ratings.

    What you don’t seem to grasp is that universal healthcare is a fundamental driver of wellbeing and productivity in a nation – if you can put aside your prejudice about the lack of ‘fairness’ think instead at least of its role as an economic engine.

    America has the worst inequality of any developed nation and it’s got even worse recently. Addressing healthcare inequality is part of redressing the balance and if it’s not done the country will just continue going backwards, along with the deteriorating infrastructure.

  15. Well, I guess we'll see if it is upheld.

    As a nurse, I see the system from a different perspective, and being a small "l" libertarian does make me naturally resistant to anything that increases the governments size or power.

    As Nancy said, "We'll just have to pass this bill to see what's in it..." : /

  16. @BB
    "I can't remember the last time I used my medical insurance which is provided to me by my employer -- it's been at least 15 years"
    Your 28 and you haven't used your medical insurance? That would make you an outlier but in any case, just basic medical care for a woman in your age group (pap smears, check-ups, infections) would be expensive without insurance. The "have chosen not to be treated" argument is does not apply to emergencies which happen to be outrageously costly without insurance. Neither does your juxtaposition on car insurance "designed to protect others" concept. Private insurance alleviates the need for the public to absorb your unpaid hospital bills.

  17. @Sinville,

    Oh good grief -- 28? Where on earth did you get the idea that I'm 28 years old? Let's just say that I'm in the second half of my life and retirement doesn't seem like it's a life-time away like it did when I was 28.

    You are absolutely wrong about car insurance. We are required to have car insurance to protect others. That is exactly what the law requires as the least amount of insurance we must carry in order to drive. Most of us will insure more than that to protect ourselves if we own a home, etc. We may insure for more to protect our assets but we are not legally required to. That is optional. However, carrying insurance to protect others is not optional.

    And no, I don't use my medical insurance because I only am seen on an as needed basis. Last time I sought treatment was when I was uninsured. I was between jobs and decided to take a much needed vacation. I went to China and was bitten by a dog. I did not want to be seen by a dr. in China so I waited until I returned and by that time, it was pretty ugly looking and infected. I paid out of pocket. That was expensive especially since I was unemployed at that time. Not having a PCP, I went to urgent care to be treated. I had to pay before being seen.

    Just curious, where on earth did you get the idea that I'm 28? I had to answer you based on that funny assumption. You're making an awful lot of assumptions about someone you don't know including annual visits, my age or even my gender. You would have no idea if I visit a physician annually or even if am female.

  18. @bb:

    No one cares about your dog bite or that fact that you have been ignoring your cholesterol level and colon cancer screening because it is too expensive.

    What happens when you trip walking down the sidewalk (walking because you didn't want to buy car insurance either). You fall and actually break a hip.

    Should the ER treat you?

    Should they check your bank account or credit card limit first?

    What if your simple hip fracture is complicated by pneumonia and a line infection.

    Tens, probably hundreds of thousands of dollars. All this would be absorbed by the rest of us if you don't have insurance.

    Are any republicans suggesting that we allow ERs to refuse care to people that don't have insurance and can't pay??

    We as a society agree that everyone is entitled to some level of medical care. We should all have to pay for it.


  19. bb,

    if you were bitten by a dog in China, where rabies is endemic, and didn't seek immediate medical help then you're even more stupid than the dog that bit you.

    As for fatuous argument against all people needing to hold health insurance, you clearly have no interest in the US being a more prosperous, civilised nation and as such are part of the problem, not the solution.

  20. bb,
    Fine. Just like you want it, bb. You get in a wreck, nobody will come to help, except to haul your ass off the road and out of the way of traffic. Here in just this, you've already cost me some money having to pay for the crew to scrape you off the pavement so you don't smell up my commute.

    What? you are in pain and want help, can't I see you are still alive? Hey dude, you have a cell phone, call a friend to get you!? Oh you want actual trauma care. Better have your visa card out because we'll run it before sending anyone out. Oh, unconscious? well, nothing I can do then for ya buddy, nobody to give me a visa card...


  21. Gee whiz everybody, calm down. Thought I would check in and man, everybody is having an attack of I don't know what. Making up scenarios that never took place before the Obama bill and won't take even if it's repealed.

    @abc, please check your facts. Not ALL of China has problems with rabies. I was in the Southern most part of China. Took the boat over from Hong Kong. When I returned and sought treatment, the doc looked it up and said that the areas that I traveled did not have problems. Actually, I did not even know that China had a problem with rabies -- I only found out because the doc looked up the area that I was traveling in.

    Before you go around calling people stupid, make sure you have your ducks lined up so you don't appear to be what you're calling others.

    Gotta go but if time permits, will answer these outrageous claims about dumping people without insurance, leaving dead stinky bodies on the road, etc.

  22. bb

    'Actually, I did not even know that China had a problem with rabies'

    Gets even more stupid then. Even without rabies a dogbite can be very serious given the bacteria taht dogs harbor.

  23. We trust that Obama reconsider and give us a reform for the benefit saludsea care, since many people need, especially those suffering from chronic pain and are likely to take hydrocodone, vicodin, norco, are the only medicines that control this type of pain.

    Lilly Abbott

  24. Let me put it in a different perspective for some. We all have public nudity laws. Therefor we are all required by law to purchase some sort of covering, let us call this clothing. We all know that clothing retailers are constantly ripped off i.e. the cost of this stolen merchandise is passed on to the rest of the consumers. now compare this to health coverage, we all know that there are tons of health bills that go unpaid for and this cost is then distributed to the rest of us - whether you pay cash or if you pay your insurance company. Now ask your self, if we (i.e. the government) force people to pool together to buy health insurance, then why don't we force them to pool together to buy clothing? It will make the cost of clothing go down. After all, we can then mandate the exact type of clothing that everyone else wears; style, size, colors, fabrics etc... You live in CA and you don't need a parka? Well, you get one anyway, you never know after all...


Note: Only a member of this blog may post a comment.