I have not had time to read the Supreme Court’s health care reform decision or much in the way of coverage, but my understanding is that the lynchpin of the bill – the insurance mandate – was upheld by a vote of 5 – 4 with Chief Justice Roberts providing the fifth vote. He was willing to regard it as a permissible use of the federal government’s taxing authority – not, as the other supporting justices offered, as an extension of the federal government’s power under the commerce clause.
A brief explanation by Lyle Denniston here.
Update Here is additional explanation on the question of Medicaid expansion. I confess that I don’t know the particulars of what the Medicaid expansion provisions entailed. But, the Supreme Court held that it was unduly coercive in requiring states with Medicaid programs to either accept the substantial expansion or forfeit all Medicaid funding, even that which had previously been in place. A different majority held that the remedy for this violation was to simply read the statute as making participation in the expanded Medicaid program voluntary.
Due to the politics of the thing, I expect what we’ll see is that Democratically controlled states will take the federal money and offer more coverage for its poor citizens under Medicaid and Republican controlled states will decline to participate in the expansion.
That’s Bush nominee Roberts.
On the upside I can revisit this post: https://www.masson.us/blog/?p=8643 and get Mourdock’s take on the decision…
its true. Mourdock did call it ;)
Each of us will like evaluate the program and the decision based on either or both our political philosophy or our personal situation (which are not always the same.) Where I am coming from: believe something needs to be done about health care in this country whether considering availability to all or having some use medical system without paying (including having no insurance) and thus every time I use the system I pay in part for others. I and my wife are retired thus do not have any program (except supplements) except medicare. We adopted our granddaughter (now 4 years old) and because “you make too much money” we can not purchase any health insurance for her (no existing program to add her to and absolutely no company selling in Indiana). So it is our hope that a) we do not have a medical emergency that could bankrupt us and b) under the new program where everyone must be insurable there will again be programs available to purchase.
I don’t trust the government as far as I can throw it, but this ruling makes sense based on what I know. At the very least, it doesn’t extend the Commerce Clause, which is already overly taut.
Gene, I hear you on the commerce clause. Still, the power to tax just became MUCH bigger. Eat too much red meat and not enough vegetables, the federal government can tax you. Don’t exercise enough? They can tax you again. Heck, it appears the government can now tax you for sitting on your couch and watching tv.
The Commerce Clause is virtually plenary. Nearly all Commerce Clause scholars believed that the court would not strike it down on that basis. But reading the tone of the dissent, I see the political agenda simmering just below the surface .
The power to tax did not increase. Taxing authority is in fact plenary except for a Capitation tax proscribed by section or a duty on inter state commerce.
All one has to do to avoid the tax is purchase health benefits (comply with the law.) In that regard, this tax is more optional than the Estate and Gift Tax.
I fully disagree with all of your conclusions above.
Wow. Powerful and incisive response. Well documented and thoroughly reasoned. I will put it up on my refrigerator.
That was sort of my point. Your post was full of (simplistic) conclusions and opinions, with virtually no actual facts to back it up. Oh, and the fact you did provide were inaccurate. For example, in a recent study, only 8 of 21 Con Law “experts” (whatever that is) stated that the mandate would survive under any theory.
http://www.bloomberg.com/news/2012-06-22/law-experts-say-health-measure-legal-as-some-doubt-court-agrees.html
Yes, the power to tax did increase. Since you seem to be a neophyte in tax law, I’ll give you a simplistic example. A “penalty” which is repeatedly stated by Congress and the President to not be a “tax” can now be approved as a “tax.” You want a hard one? This tax is not subject to apportionment (as required by the Constituton). Nor is this tax an “income tax” which is excepted from the apportionment requirement), yet it has been approved.
Now go look up what I have said and educate yourself. Second, don’t blame me if you don’t understand tax law enough for me to respond without having to educate you on the subject first.
I could not glean the subtext of your eight word assessment. That would be like huris or stuff…
Neophyte on tax law. I guess my seven and and eight figure estate planning clients need to know of your brilliant assessment.
Roberts handily rejected any idea that the tax was a direct tax. Slip opinion at 43. Since the ACA tax is not a direct tax, it need not be apportioned. That seems a settled proposition.
But I will concede one point to you, very recently commerce clause scholars did move to predictictions that the mandate would be overturned on commerce clause basis. That was based upon the tone of questioning at oral argument (not always a good indicia of outcome) and the comical reference to purchasing brocoli by Scalia. That was not the consensus eight months to a year ago.
Now did you learn anything?
1. I assume you mean hubris?
2. Ahh, Roberts handily rejected it. Sort of like how Congress rejected the idea this was a tax? You’re right, we should be naive and believe people when they say “nothing to see here” over 193 pages and a man in the corner says “look at that!”
3. Should I be impressed that you know how to perform estate planning for people whose net worth is 7 digits (slightly below a married couple’s uniform credit)? I am sure your GRAT’s, IDGT’s and other uses of Brentmark Software do wonders for your tax policy understanding.
4. Bottom line is this is a new type of tax. The tax has been determined by SCOTUS to be an indirect tax, which gives it much more flexibility. Bottom line is that increases the ability of Congress to do this in the future.
Forgot to mention that IMO we still ought to implement the Whole Foods guy’s recommendations – http://www2.wholefoodsmarket.com/blogs/jmackey/2009/08/14/health-care-reform-full-article/
Also attack fraud harder, and outlaw the common practice of hospitals billing the uninsured 10x their cost for MRI’s and other tests.
Individuals have no bargaining power and cannot drive market share to a provider in exchange for lower charges. The market can charge them what it will bear. Why should they get the advantage of fees they cannot bargain for and obtain?
Oh, yeah, I forgot, the Health Savings Accounts were to magically create bargaining power for patients.
I have followed healthcare reform since 1991 when I began my LLM and began work as an AGC at at large healthcare provider company. When I began, healthcare accounted for about 14 % of GDP, about 60% more than Canada and Western Europe. I remember the right stating that healthcare accounts for 14% of our economy and why would you want government getting involved with 14% of the economy. (Because healthcare is grossly expensive, there were millions without benefits and outcomes were below most of those in the west.)
Well now healthcare is closer to 18% of the economy, outcomes are not substantially better, more are uninsured and there are no meaningful cost containment methods in place. The providers assure this.
There are a couple of salients about the ACA. First, it has little ability to control costs. A bill that could control costs would not get past the provider and pharma lobbies. Second, it is close to a full reimbursement bill for the providers and full employment bill for insurers. It is not a good bill, but it is all that could get through congress.
The best analysis I head about the ACA was from a commentator on the Kaiser Health News last summer. In 2016 we will likely find that healthcare costs have continued to outpace inflation and may be about 19% of GDP. But the nation will have close to universal coverage.
If the ACA were to be overturned or repealed, healthcare costs will still be about 19% of GDP and there will be a higher percentage of uninsured than there is even now.
This will eventually bring on single payer, national healthcare. Death panels won’t be needed, as the costly, end-of-life care, and the care for younger folks for harder to battle cancer and stuff just won’t exist as it does today. Unless doctors and nurses are willing to take 20%+ pay cuts, and hospitals charge at least 33% less, there won’t be enough in taxes to pay current market rates.
Some will say “If you get rid of the middle man, insurance companies, there will be tons of money.” These people are pretty clueless. According to IU’s report on healthcare for that university, they spent around $153,000,000 on healthcare. They state that 94% of that figure is for medical and medicine. Folks, saving a whopping 6% isn’t going to fix the system. In order to fix the system, one would have to massively cut hospital admin costs, slash wages for nurses and doctors.
Get ready for single payer, get ready for around 50% federal income tax. The suckers will be those fools who didn’t save money. The rest of us are going to get rid of our $60K/year jobs, that will only allow us to take home $30K/year, and do jobs we love so long as they pay for the basics. I figure all I need is $25K and I can make it. I will pay minimal taxes, get the same exact healthcare as the sucker working my old job working nights, weekends, and holidays. Bring on the single payer….it is time someone subsidize my life so I can do what I want.
It’s not like anyone has any moral entitlement to anything greater than the per-person mean of the total global wealth anyway.
There is zero moral justification whatsoever for an unequal distribution of social wealth. Universal care is a step in the right direction.
Good. Medicare operates at a 2-3% administrative rate. Your analysis of the statement that if you cut out the middleman you will save resources is baseless. Utterly baseless. Even the best run underwitten plans struggle to approach 15% admin costs.
Every western European democracy provides universal coverage at costs that are at or about one-half of the US. With better outcomes.
These points are ineluctable. And stop the whining about the unequal distribution of healthcare benefits. Are you that selfish that you wish others with chronic conditions to be exacerbated because of lack of benefits? Is your opinion of the work ethic of your fellow citizens that perverted that you impute malingering to them yet you stand around and polish your halo? Drop out and live a freakin’ miserable life with your government paid healthcare and food stamps. Send me a $.99 Christmas card every year and keep up to date with the delights of poverty.
Poor health translates into lower incomes and lesser opportunities. Some is unavoidable. But those without adequate benefits are always at risk of treatable conditions made worse because of the inability to afford non-critical care.
This from the presumptive Governor.
Indiana Rep. Mike Pence (R) has apologized for comparing Thursday’s Supreme Court ruling on health care reform to the tragic, bloody attacks of Sept. 11, 2001, according to Politico.
Pence, who’s currently seeking Indiana’s governorship, made the statement during a closed-door meeting of the House Republicans, according to sources who were present.
He immediately apologized after being confronted by a reporter.
“My remarks at the Republican Conference following the Supreme Court decision were thoughtless,” he reportedly told Politico. “I certainly did not intend to minimize any tragedy our nation has faced and I apologize.”
Pence is not apologetic. He got caught making an absurd and extremist statement and had to suck it back down. But
Ain’t god been good to Indiana…
Tully’s corollary to Godwin’s Law: Don’t compare anything – anything – to 9/11.
A prominent Michigan Republican asked whether armed rebellion would be justified.
http://www.michigancapitolconfidential.com/17151
What civil rights does this clown promote. The right to murder fellow citizens because of a crime against your political karma.
I’ve seen similar sentiments on this blog in the past–not from Doug, but from someone who used to frequent this blog’s comments section.
I wonder who ratted out Mike Pence. I suspect he did not think he would be confronted by a reporter about his comments.
Yes, I am sure Pence does not “sincerely” regret the statement. But it is a good view into his chacter (so-called), lack of judgement, and propensity to hold extremist ideas.
It is a sign of great hubris to claim to know what a man you do not know is thinking.
No, it was a reponse to the facts and the setting. As you may know if you are an attorney, people rarely verbally indicate their state of mind. You discern state of mind from conduct and circumstances.
Only two conclusions can be drawn from Pence’s statement:
1. He is a vitriolic thoughtless extremist.
2. He is delusional.
What “facts” do you know that allow you to “know” (your word, not mine) that Pence’s apology was insincere? That is, other than your biases against him for his past actions and policies? Or do you know for a “fact” that Pence is a bad person who never feels bad about anything simply because you, Carlito Brigante (or whatever your actual name is), disagrees with him?
The situation *suggests *that Pence only apologized when and because he was confronted. It could have been a sincere apology, but given that he probably did not expect to have a reporter ask about what he’d said in a closed-door meeting, Rep. Pence had really had no choice but to at least voice words of apology. Maybe he was sincerely sorry for his insensitive comment. Maybe he was only sorry that a reporter found out about what he’d said.
Pence only made the mea culpa when he discovered a reporter was present. Apply the facts and circumstances to the event.
Is your opinion that rejects the implication of the “apology” a result of your political alignment with Pence.
So which is it? 1 or 2.
Oh, and I think I will draw a parallel with Godwin’s Law. Brigante’s law. When a comparison with a political event invokes 9-11, Brigante’s law is invoked.
Sounds like a cirumstantial case. As such, you may choose to use the word “suspect” “predict” or “guess”, rather than the omniscient “know”. Words have meaning. As a lawyer, you should appreciate that.
Your comment also appears to assume (hard to understand your second paragraph) that I “reject” your assertion as being false. That is incorrect. I merely claim that I do not know, and neither do you.
I withdraw the Brigante Law in deference to the prior invokation of Tully’s corrollary.
I had never heard of it.