The U.S. Constitution and "health" "care" "reform"

We the for-profit corporations?

This editorial in the New England Journal of Medicine’s Health Policy and Reform blog pretty much sums up my thoughts on “health” “care” “reform” for the past three years, only it’s much smarter than anything I could write on the subject because the authors (Wendy K. Mariner, J.D., M.P.H., George J. Annas, J.D., M.P.H., and Leonard H. Glantz, J.D.) are lawyers with specific legal knowledge of the jurisprudence on the Commerce Clause and important stuff like that.  (H/t to Lambert at Corrente.) 

Here’s the nut of the problem, which is that “[t]he [Affordable Care Act] was designed both to provide an affordable means of financing health care for all Americans and to preserve the private, commercial health insurance industry. This latter goal is the source of conflict.”  They review the legal issues at stake, but then focus on the innovation of the ACA, which is that Congress has required every American citizen to purchase a product from a for-profit industry:

The third and most important reason the question is so hard is that it’s difficult to decide whether not having insurance coverage qualifies as an activity that affects interstate commerce. ACA opponents argue that Congress has no authority to penalize people for inactivity — for not buying a product. One lower court in Virginia has agreed, and during oral arguments in a Florida case, Judge Roger Vinson appeared likely to agree as well. The Obama administration argues (and two other lower courts in Virginia and Michigan agreed) that the failure to purchase something is an economic decision with potentially broad economic consequences — a dynamic much in evidence during the current recession. Therefore, decisions not to buy a product should count as economic activity affecting interstate commerce. Yet this argument may prove too much. If the Commerce Clause authorizes Congress to penalize people without health coverage in order to sustain the private health insurance industry, then it might also authorize requiring people to buy cars to sustain an industry vital to the U.S. economy. If the Obama administration is to prevail, it must provide a persuasive limiting principle to convince the Supreme Court that ruling in favor of the individual mandate would not create a precedent for unlimited federal authority to require citizens to buy goods from private sellers to sustain important industries

That’s a dilly of a pickle, ain’t it?  Maybe, just maybe, extending health care to all Americans isn’t really compatible with propping up a for-profit industry that profits only by refusing to guard people’s “health” and denying “care?”  But, to return to the Constitutional issue at stake:

The Obama administration responds that virtually all people do get care, whether they pay for it or not, so they should contribute to its cost through insurance, and insurance would be too costly if healthy people were not in the pool. Yet if the federal government can require people to buy insurance in order to keep premiums affordable, could it also require people to buy baby aspirin or a gym membership to keep those premiums affordable, on the theory that using these products reduces the use of health care services and thus insurance costs? Or, as Judge Vinson asked at the December 16 oral arguments in Florida, “If they decide that everyone needs to eat broccoli,” can Congress require everyone to buy broccoli? The administration’s response, “It is not shoes, it is not cars, it is not broccoli,” is factual but doesn’t answer the question of why the federal government can’t require citizens to buy them.

Now, here’s the best part of the whole article.  This is what a lot of us were saying all along–but folks who supported a single-payer system and/or Medicare for All were never invited to Max Baucus’s committee meetings and were never a part of the White House strategy.  (In fact, they were explicitly disinvited, that is, forcibly removed from the U.S. Capitol!) 

A much easier question to answer is why we’re facing this constitutional turmoil. Why, for example, is there no constitutional fuss over Medicare, Medicaid, or veterans’ health care? These programs raise no constitutional issue because they are government benefit programs funded by taxes, and the Constitution explicitly authorizes Congress to tax and spend for the general welfare. Had the ACA expanded Medicare eligibility to everyone, or created a new government health benefit program, there would be no constitutional issue. The constitutional controversy is the direct result of the insistence by conservative legislators that any health insurance reform must preserve the private insurance industry, which necessitated the addition of the individual mandate that is now being fought in the courts by similarly conservative forces.

I presume that it was intentional, and not accidental, that the authors of the above article blame “conservative legislators” rather than “Republicans,” because of course ACA was a Democratic plan.  And because of Democratic cowardice, ACA may well not pass muster in the courts.  If it’s struck down by federal courts and/or the Supreme Court, which Republican presidents have not failed to pack with conservative ideologues, the mandate will vanish but we’ll be left without even the meager consumer protections ACA offered as a bulwark against for-profit predation.  Say it with me friends:  awesome!!!   (Explain to me again how much harder it would have been to extend Medicare to everyone in the last Congress, when the Dems had supermajorities?) 

History rewards the bold actions, friends, not the bull$hit half-way compromises that are praised by the editorial board at the Washington Post.  That’s my prediction, anyway, and I’m sticking to it.

0 thoughts on “The U.S. Constitution and "health" "care" "reform"

  1. The clear intent was to prop up a corrupt and dying industry that through greed has killed the golden goose of probability and risk called insurance. By purchasing the presidency, political party, and our democratic institutions they killed off prosperity for one and all. The wealthy are done for also. They are just too stupid to know it yet.


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  3. The crux of the problem is a dysfunctional conservative Democratic president. If the livelihood of the health insurance companies is at least as important as the health of Americans nothing will be accomplished.

    There is a much simpler question. With so many senators involved and their armies of aids, how come they missed the constitutional problem?


  4. This thing is going to easily pass constitutional muster, because the feds already punish people for not doing things. The way ACA will work is approximately this: There’s a line on your 1040 “Do you have health insurance? Attach documentation.” If you check Yes, you don’t pay anything; if you check No, you pay an extra tax.

    That’s functionally identical to existing tax credits and deducations, even if it’s worded differently. Right now, you’re effectively punished for not having a mortgage, not paying college tuition, not having kids, not buying a hybrid, etc.- you have to pay extra tax in every one of those cases for NOT doing something, just like ACA.

    Now, none of that is to say that the way ACA is structured is a good idea- it’s a shitty one. But if the Supremes invalidate it on the basis that Congress can’t make you pay extra taxes for not doing something, they’ll end up invalidating dozens of very popular long-standing tax credits. That’s the argument the solicitor general will make if he’s worth his salary.


  5. The question isn’t whether or not the government uses tax policy to incentivize certain behaviors–we know it does. The question is whether or not the government has the right to force individual Americans to purchase a product from a for-profit company. Married people and homeowners get all kinds of breaks, but the government doesn’t dock your pay if you’re an unmarried renter.

    If the Dems cared about serving the people and the U.S. Constitution more than their corporate masters, then we’d have a very different ACA.


  6. But if the Supremes invalidate it on the basis that Congress can’t make you pay extra taxes for not doing something, they’ll end up invalidating dozens of very popular long-standing tax credits. That’s the argument the solicitor general will make if he’s worth his salary.

    There’s a difference between a rebate and a fine. They are not functionally similar in that they do not both make one “pay more”. There are no “extra taxes” being paid with a mortgage rebate.


  7. There’s a tax rate for those married and for those single. The Dems should have added a tax rate for those with health care and one for those without and there wouldn’t be any Constitutional issues. It’s too bad Medicare just wasn’t made better and expanded as an option for anyone who wanted it.


  8. The individual requirement is not the same as if the Congress could require every individual to buy a car or eat broccoli. An individual may make such choice and keep to it, perhaps for the rest of his or her life. By contrast, no one can guarantee that he or she will not need health care for the rest of his or her life. Second, no car dealer or broccoli seller is required to provide a car or broccoli to a person who shows up and who cannot pay for it. But hospitals are required by law to provide that care, at a cost that in 2008 equaled $43 billion dollars, averaging about $1,000 per American family per year. The decision to not pay into the system thus ends up costing everyone else and has a substantial impact on interstate commerce. See opinion of Judge Kessler, in Mead v. Holder, US Dist. Ct., DC, 2/22/11, especially at pp. 46-47.


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