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Health care challengers offer hypothetical mandates

By Richard Wolf, USA TODAY

WASHINGTON – Can Congress require Americans to buy broccoli? How about gym memberships? Or Chevy Volts?

Those or similar questions are likely to be posed to the Supreme Court later this month as it considers whether requiring Americans to buy health insurance is a law with a "limiting principle."

If President Obama's health care law — his landmark legislative achievement — is to withstand legal challenge, government lawyers must convince a majority of justices that the health care marketplace is unique. By not buying insurance, their argument goes, millions of Americans transfer $43 billion in health care costs to others in the form of higher premiums.

In dozens of briefs challenging just that argument, however, opponents of the law contend that the "minimum coverage requirement" — more commonly known as the individual mandate — would set a precedent that could apply to vitamin supplements, daily newspapers or kidney donations.

If Americans can be told to buy health insurance, Congress could seek to impose "a broccoli mandate, a car-purchase mandate, really any other mandate that you'd want," says Ilya Somin, a law professor at George Mason University who filed a brief for the Washington Legal Foundation, one of the dozens of groups opposing the law. "There are lots of interest groups that would love to lobby Congress to require people to buy their products."

Although the health care challenge is divided into four areas and will be argued over three days, many opponents say the critical test for the government is proving that a health insurance mandate won't lead to others. Never before, they say, has Congress forced Americans to buy something against their will.

The purpose of the mandate is to ensure that new insurance market reforms in the law work as intended. One limits the ability of health insurers to vary premiums based on factors such as gender and health status. Another prohibits insurers from denying coverage to applicants with pre-existing conditions.

Unless younger, healthier people — who often go without insurance until they get sick — are covered, the costs of those changes would be prohibitive, forcing premiums to rise even higher for those already covered.

In response to opponents' warnings that a mandate to buy insurance could lead to other government-required purchases, the Obama administration argued in one of its briefs that no such examples exist.

"Respondents acknowledge that states do have the power to enact purchase mandates, but they identify no example of any state ever having compelled its citizens to buy cars, agricultural products, gym memberships or any other consumer product," it said.

Mandating corn, metro cards

Nevertheless, opponents of the law raise these specters:

•Mandating insurance coverage could lead to requirements affecting basic human needs, such as food and transportation.

A brief submitted by 215 economists argues that food is even more basic to survival than health care and that virtually all Americans use some form of transportation. For that reason, their attorney, Steven Engel, contends, the government could go on to mandate purchases of corn or metro cards.

"Our view is that the health care industry is not so unique," Engel says. "It is not an economic fact that all people require health care."

•The insurance mandate could lead to virtually any type of mandate, no matter how unlikely.

In the brief filed on behalf of 26 state governments, former U.S. solicitor general Paul Clement contends that life insurance, burial insurance and flood insurance in flood zones are equally important for Americans to have. He extends the argument to even more basic needs.

"The same kind of cost-shifting is just as inevitable in markets for basic necessities such as food and clothing," his brief states. "The federal government spends billions of dollars feeding the hungry, clothing the poor and sheltering the homeless."

•Buying health insurance could become a basic requirement of living in the United States.

While the government can compel military service, jury duty and taxation, those are the costs of citizenship, opponents of the law argue. Health insurance premiums, by contrast, would be owed not to the government but to private companies.

"It's contrary to the notion that the federal government is a government of limited powers," says Paul Orfanedes, the lawyer for Judicial Watch, a conservative watchdog group that raised the Chevy Volt argument. "At some point, everybody in the country is going to require some type of transportation."

'A parade of hypotheticals'

For every argument that opponents mount, the administration and its allies have a counter-argument. They say:

•Mandates on what consumers eat would violate their right to privacy.

•The insurance mandate is paired with a reasonable alternative: a monetary penalty, rising by 2016 to $2,085 per family or 2.5% of household income, whichever is greater.

•Americans have another recourse to the insurance mandate: Vote out the lawmakers who imposed it.

The analogy for products such as cars doesn't hold, proponents of the law say, because the decision not to buy a car doesn't shift costs to others in the same way that going to the hospital without health insurance does.

A 2008 study in the journal Health Affairs found that the government spent $43 billion in 2008 to help pay the health care bills of the uninsured. In his brief on behalf of House and Senate Democratic leaders, former solicitor general Walter Dellinger said the analogy would apply only if people obtained $43 billion worth of cars without paying for them, imposing the cost on law-abiding car buyers.

"Consideration of the grave question of whether this court must invalidate a landmark act of Congress is not advanced by entertaining a parade of hypotheticals," he argued in his brief.

He carried the analogy further at a recent forum, noting that Americans who do not buy fancy televisions to watch this month's NCAA basketball tournament don't impose costs on others. If they did, he said, Congress might have passed the Emergency Flat-Screen Television Act.

The reckoning on Obamacare

The reckoning on Obamacare

Charles Krauthammer

March 26, 2012

WASHINGTON — Obamacare dominated the 2010 midterms, driving its Democratic authors to a historic electoral shellacking. But since then, the issue has slipped quietly underground.

Now it's back, summoned to the national stage by the confluence of three disparate events: the release of new Congressional Budget Office cost estimates, the approach of Supreme Court hearings on the law's constitutionality and the issuance of a compulsory contraception mandate.

Obamacare was carefully constructed to manipulate the standard 10-year cost projections of the CBO. Because benefits would not fully kick in for four years, President Barack Obama could trumpet 10-year gross costs of less than $1 trillion — $938 billion to be exact.

But now that the near-costless years 2010 and 2011 have elapsed, the true 10-year price tag comes into focus. From 2013 through 2022, the CBO reports, the costs of Obamacare come to $1.76 trillion — almost twice the phony original number.

It gets worse. Annual gross costs after 2021 are more than a quarter of $1 trillion every year — until the end of time. That, for a new entitlement in a country already drowning in $16 trillion of debt.

Constitutionality:

Beginning Monday, the Supreme Court will hear challenges to the law. The American people, by an astonishing two-thirds majority, want the law and/or the individual mandate tossed out by the court. In practice, however, questions this momentous are generally decided 5 to 4, i.e., they depend on whatever side of the bed Justice Anthony Kennedy gets out of that morning.

Ultimately, the question will hinge on whether the Commerce Clause has any limits. If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity (to buy health insurance), is there anything the federal government cannot compel the citizen to do?

If Obamacare is upheld, it fundamentally changes the nature of the American social contract. It means the effective end of a government of enumerated powers — i.e., finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new post-Obamacare dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out and maintain spheres of autonomy.

Figure becomes ground; ground becomes figure. The stakes could not be higher.

Coerciveness:

Serendipitously, the recently issued regulation on contraceptive coverage has allowed us to see exactly how this new power works. All institutions — excepting only churches, but not excepting church-run charities, hospitals, etc. — will be required to offer health care that must include free contraception, sterilization and drugs that cause abortion.

Consider the cascade of arbitrary bureaucratic decisions that resulted in this edict:

(1) Contraception, sterilization and abortion pills are classified as medical prevention. On whose authority? The secretary of the Department of Health and Human Services, invoking the Institute of Medicine. But surely categorizing pregnancy as a disease equivalent is a value decision, disguised as scientific. If contraception is prevention, what are fertility clinics? Disease inducers? And if contraception is prevention because it lessens morbidity and saves money, by that logic, mass sterilization would be the greatest boon to public health since the pasteurization of milk.

(2) This type of prevention is free — no co-pay. Why? Is contraception morally superior to or more socially vital than — and thus more of a "right" than — penicillin for a child with pneumonia?

(3) "Religious" exemptions to this edict extend only to churches, places where the faithful worship God, and not to church-run hospitals and charities, places where the faithful do God's work. Who promulgated this definition, so subversive of the whole notion of godliness, so stunningly ignorant of the very idea of religious vocation? The almighty HHS secretary.

Today, it's the Catholic Church whose free-exercise powers are under assault from this cascade of diktats sanctioned by — indeed required by — Obamacare. Tomorrow it will be the turn of other institutions of civil society that dare stand between unfettered state and atomized citizen.

Rarely has one law so exemplified the worst of the Leviathan state — grotesque cost, questionable constitutionality and arbitrary bureaucratic coerciveness. Little wonder the president barely mentioned it in his latest State of the Union address. He wants to be re-elected. He'd rather talk about other things.

But there's no escaping it now. Oral arguments begin Monday at 10 a.m.

Washington Post Writers Group

Charles Krauthammer is a syndicated columnist based in Washington.

letters@charleskrauthammer.com

Is that Obamacare or Romneycare? Or both???

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Review of ‘Obamacare’ puts GOP spotlight on Romney’s Massachusetts health care law

By Philip Rucker and Dan Balz, Published: March 26

SAN DIEGO — Health care was supposed to be Mitt Romney’s Achilles’ heel: The state overhaul he championed as governor of Massachusetts is so similar to the sweeping federal law conservatives deride as “Obamacare” that it was once widely regarded as a big enough liability to doom his presidential chances.

But Romney remains the overwhelming favorite in a topsy-turvy campaign in which health care has rarely been the driving issue, and he is picking up the support of prominent conservatives as he moves toward securing his party’s nomination.

This week, as the Supreme Court reviews the Obama administration’s health-care law, Romney’s remaining opponents for the Republican presidential nomination are trying to capi­tal­ize on what may be one of their last opportunities to deny him the prize.

Rick Santorum is urgently attacking “Romneycare,” arguing that Romney would effectively forfeit one of the biggest issues Republicans have to run against Obama.

Santorum pounces

His campaign has fired off daily e-mails and videos highlighting the Massachusetts law, while the former senator from Pennsylvania has been particularly animated in talking about the issue; he uttered an expletive Sunday night at a New York Times reporter who asked him to clarify his line of attack on Romney.

“It’s the best opportunity for us to make the case about big government, to make the case about individual liberty, to make the case about budget deficits being blown wide open, to make the case about people not getting quality health care and have rationing of health care and government mandating you and making you do something against your economic interests, against your religious interests,” Santorum told reporters Monday over breakfast in Washington.

Calling health care “the mega issue,” he argued that Romney is “the one guy who can’t make the case.”

To emphasize his differences with Romney on health care, Santorum held a campaign event Monday on the steps of the ­Supreme Court as the justices were concluding the first of three days of oral arguments.

He told reporters that the Massachusetts law is “one of the reasons the jury’s still very much out” on Romney’s candidacy.

GOP voters cite economy

But it is difficult to measure how much it has hurt Romney in the nominating contest. Just 6 percent of Republicans nationally rated health care as the top issue, well behind the economy and general dissatisfaction with government, in a March Gallup poll. In January, a Washington Post-ABC News poll found that 27 percent of Republicans and GOP-leaning independents said Romney’s health-care record was a major reason to oppose him. But 21 percent saw it as a reason to support him.

Romney’s biggest problem may be that his overhaul in Massachusetts places him ideologically to the left of much of the GOP base. In three big states whose primaries Romney won — Florida, Illinois and Ohio — about four in 10 Republican voters called Romney “not conservative enough” in exit polls.

“It’s clearly a vulnerability for Governor Romney, but by coming out so strongly for repealing and replacing Obamacare, while he may not have completely neutralized the issue, he’s taken a good deal of the sting out of it,” GOP pollster Whit Ayres said.

Romney has been trying to neutralize his problems with the conservative opponents of the Obama law by recommitting to repealing it.

“There are a lot of reasons not to like Obamacare,” he said Monday during a campaign stop in San Diego. “My colleagues the other day listed a whole series of them — and there are about 30 things — and I chuckled as I looked down, just shaking my head at the things Obamacare is doing.”

But Romney is picking up more conservative support as impediments to his nomination appear to be diminishing. On Monday, he trumpeted the endorsements of a handful of prominent conservative leaders — House Majority Whip Kevin McCarthy (Calif.), American Conservative Union Chairman Al Cardenas and tea party star Sen. Mike Lee (Utah) — who called on Republicans to unite behind Romney.

Repackaging issue

Looking toward a campaign against the president this fall, Romney has begun to frame the health-care law as just one part of a broader overreach by the administration, which he says represents “an attack on economic freedom unlike anything we have ever seen before.”

Yet as Romney visited a medical-device company here that makes artificial spines, delivering a speech in front of a banner that read “Repeal and Replace Obamacare,” he did not directly call for its repeal. Nor did he refer to the week’s activity at the Supreme Court.

And although Romney stands by the Massachusetts program and has at times detailed the differences between it and the federal overhaul, he made no mention of it on Monday.

Instead, he spoke broadly about what he considers a culture of government regulation and taxation brought on by the Obama administration.

“I just don’t think the president and his people understand that as they burden enterprise with taxation and with regulation, they hurt all of us,” Romney said. “This is not just about the business itself being attacked, bad enough as that is, and the employees who work there being attacked, bad enough as that is, but the entire economy, all of America, slows down.”

Romney repeatedly referred to NuVasive, the company that hosted him Monday, and noted that its chief executive, Alexis V. Lukianov, emigrated from Russia to start the business.

“These dreams that people like Alex have had, these dreams are crushed — tax by tax, regulator by regulator, regulation by regulation,” Romney said. “Washington is crushing the dreams and crushing the dreamers. We can’t let it happen.”

Balz reported from Washington. Polling analyst Scott Clement in Washington contributed to this report.

Supreme court weighs all-or-nothing on healthcare law

I Googled "average American income" and got figures of around $45,000 to $50,000 for a typical American household. Which means that the mythical American family of 4 will have to pay over half of it's income for medical expenses under Obamacare.

One semantics problem with Obamacare is that it is billed as "medical insurance". That is 100 percent BS. Obamacare not insurance, but the government forcing you to pre-pay your medical expenses.

I also consider Obamacare to be a government welfare program for doctors and businesses that provide medical services. That is because the government is forcing you to pay for medical services in advance and of course the cash from those purchases will go to the doctors and businesses that provide medical services.

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Supreme court weighs all-or-nothing on healthcare law

Reuters

By James Vicini and Joan Biskupic

WASHINGTON (Reuters) - The Supreme Court opened its final day weighing the fate of President Barack Obama's healthcare overhaul, considering on Wednesday whether the entire law can stand should the court rule against its centerpiece mandate that most people buy insurance.

On this, the third and last day of historic arguments, the nine justices were due to hear whether the rest of the law, Obama's signature domestic accomplishment, can survive should the court decide that Congress exceeded its powers by requiring that most Americans obtain insurance by 2014 or face a penalty.

The arguments began after the high court issued opinions in other, unrelated cases.

The Obama administration faced skeptical questioning on Tuesday from the court's five-member conservative majority on the insurance requirement, known as the individual mandate. But it was unclear whether it would strike it down or let it stand.

A ruling on the insurance mandate appeared likely to come down to Chief Justice John Roberts and Justice Anthony Kennedy, two conservatives who pummeled the administration's lawyer with questions on Tuesday.

If even one of the five conservative Republican appointees joined the four liberal Democratic appointees on the court, the law would be upheld. If the five conservatives stay united, the law would fall.

The justices are expected to meet in private on Friday to discuss the issues heard during the arguments this week and take a preliminary secret vote on how they plan to rule.

The justices then will begin drafting their written opinions in the private confines of their chambers - a process that is expected to result in the rulings being announced by late June before the court goes on its traditional summer recess.

At a later one-hour session on Wednesday, starting at 1 p.m. EDT (1700 GMT), the justices will review whether Congress violated the Constitution by coercing the states to dramatically expand the Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans.

As the court began its last day hearing arguments on the law - six hours spread over three days making it the longest on a single issue in more than 44 years - the crowd of supporters and protesters outside the high court was smaller and more subdued.

FINANCIAL STAKES

A Supreme Court decision striking down the law would be seen as a huge political and legal defeat for Obama ahead of the November 6 election, when he seeks another four-year term.

A ruling upholding the law would be a major vindication for Obama, but could make healthcare an even bigger issue in the presidential and congressional elections. Republican presidential candidates all oppose the law and could fight even harder to repeal if the court leaves in place the entire statute.

The stakes could not be higher, financially, legally and politically.

The law, which constitutes the U.S. healthcare system's biggest overhaul in nearly 50 years, seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring medical costs.

The law has wide ramifications for company costs and for the health sector, affecting insurers, drugmakers, device companies and hospitals.

The healthcare investment bank Leerink Swann said in a research note that Wednesday's session was more important for managed care stocks and whether the individual mandate can be separated from the rest of the law.

For hospital stocks, it said the loss of expanded coverage, through the Medicaid program or through the individual mandate, would be a negative development.

Annual U.S. healthcare spending totals $2.6 trillion, about 18 percent of the annual gross domestic product. That translates to $8,402 per person every year.

For the Supreme Court, the Wednesday arguments will complete a thorough legal and constitutional review of the law, the most important piece of social legislation in decades.

The challengers, 26 states and a small business trade group, were represented by Paul Clement, a former solicitor general during George W. Bush's presidency.

Clement argued in written briefs that the insurance mandate was at the heart of the law and so critical to its operation that all of it must be invalidated if the requirement to buy health insurance is stripped from it.

He also argued that the Medicaid expansion was unconstitutional and the entire law should be declared invalid on those grounds as well.

TOP LAWYERS

Solicitor General Donald Verrilli, the Obama administration's top courtroom lawyer, will also argue on Wednesday. He has defended the Medicaid expansion on the grounds Congress clearly has the power to set the terms under which the federal government disburses funds to the states.

Also arguing on Wednesday will be Deputy Solicitor General Edwin Kneedler, advocating the administration's position that if the insurance mandate is struck down, then only two other provisions would have to fall.

Those provisions bar insurers from refusing coverage because of a person's pre-existing medical condition and from charging more due to a person's medical history.

The court has appointed an outside private lawyer, H. Bartow Farr III, to argue that all other provisions can survive without the insurance mandate. That was the ruling last year by a U.S. court of appeals in Atlanta.

The Supreme Court cases are National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400.

(Additional reporting by Jeremy Pelofsky and Ian Simpson in Washington and Lewis Krauskopf in New York; editing by Howard Goller and Will Dunham)

Obama's insurance requirement not the only mandate

The problem is that because the cost of suing in the court system is so expensive it is impossible for any normal working person or small business to sue and demand that the laws be declared unconstitutional.

The other problem is that the Supreme Court sadly seems to buy the BS line that ANY law passed is part of "regulating interstate commence" and therefor constitutional.

That logic says that is somebody grows marijuana in Arizona the marijuana MIGHT be transported to California and therefor MIGHT effect interstate commerce, so therefor the Constitution gives Congress the power to regulate marijuana.

If that logic is true then the same logic applies to liquor and there would have been no need to pass the 18th Amendment which allowed the Feds to create the Prohibition.

That was the argument used in the last Federal medical marijuana case in California. The Supremes also also agreed with the same convoluted logic when it comes to guns, and said Congress has the right to regulated guns, because a gun made in Arizona, MIGHT be transported to California and therefor might effect interstate commerence.

I am sure that if the Founders were still around they would have gotten out their guns and attempted to overthrow the government years ago.

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Obama's insurance requirement not the only mandate

WASHINGTON (AP) -- The individual insurance requirement that the Supreme Court is reviewing isn't the first federal mandate involving health care.

There's a Medicare payroll tax on workers and employers, for example, and a requirement that hospitals provide free emergency services to indigents. Health care is full of government dictates, some arguably more intrusive than President Barack Obama's overhaul law.

It's a wrinkle that has caught the attention of the justices.

Most of the mandates apply to providers such as hospitals and insurers. For example, a 1990s law requires health plans to cover at least a 48-hour hospital stay for new mothers and their babies. Such requirements protect some consumers while indirectly raising costs for others.

One mandate affects just about everybody: Workers must pay a tax to finance Medicare, which collects about $200 billion a year.

It's right on your W-2 form, line 6, "Medicare tax withheld." Workers must pay it even if they don't have health insurance. Employees of a company get to split the tax with their employer. The self-employed owe the full amount, 2.9 percent of earnings.

Lindsey Donner, a small-business owner from San Diego, pays the Medicare tax although she and her husband are uninsured. Donner, 27, says she doesn't see much difference between the mandate that workers help finance Medicare and the health care law's requirement that nearly everyone has to have some sort of health insurance.

"My understanding of what is going on in the Supreme Court is that it seems to be something of a semantics issue," she said. "Ultimately, I don't see the big difference. If I am paying for Medicare, why can't I also be paying into something that would help me right now or in five years if I want to have children?"

Donner is a copy writer for businesses; her husband specializes in graphics design. In the past they had a health plan with a high deductible, but they found they were paying monthly premiums for insurance they never used — something she said they couldn't afford on a tight budget.

Under the law, people such as Donner and her husband would have to get insurance or pay a fine. But they may qualify for federal subsidies to help pay premiums for policies that would be more comprehensive. Preventive care would be covered with no co-payments.

"We have jobs, we pay our bills, we pay our taxes," said Donner. "Yet it is very difficult to find affordable, reasonable health care."

There's no question the Medicare payroll tax is a government mandate, said Mark Hayes, former chief health counsel for the Republican staff of the Senate Finance Committee.

But he makes a distinction between the payroll tax and the individual health insurance mandate in Obama's health care law.

Congress used more clearly defined constitutional powers when it created Medicare. "The power to tax and the power to spend," Hayes said. "Here, with the individual mandate, it's a different question — regulating interstate commerce. This is a novel question from a legal standpoint."

Obama's law makes health insurance both a right and a responsibility for most. It would provide coverage to more than 90 percent of the population, subsidizing private insurance for millions. But it also requires nearly everyone to carry health insurance, either through an employer or a government program, or by buying an individual policy.

The mandate is well within the power of Congress to regulate interstate commerce, the administration and the law's supporters contend. Opponents say Congress overstepped constitutional bounds by effectively requiring individuals to purchase a particular product.

Supreme Court justices are trying to determine the distinction between Obama's law and other mandates, and whether it makes a difference.

Justices Ruth Bader Ginsburg and Anthony Kennedy raised the matter during oral arguments last week.

Ginsburg brought up Social Security as an example, likening it to a government old-age annuity that everyone is forced to purchase.

"It just seems very strange to me that there's no question we can have a Social Security system (despite) all the people who say: 'I'm being forced to pay for something I don't want,'" she said.

"There's something very odd about that, that the government can take over the whole thing and we all say, 'Oh, yes that's fine,' but if the government wants to ... preserve private insurers, it can't do that."

Kennedy mused that Congress could have created a Medicare-style program for the uninsured, run exclusively by the government without the involvement of private insurers.

"Let's assume that (Congress) could use the tax power to raise revenue and to just have a national health service, single payer," said Kennedy. "How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power.

"On the other hand, it means that since ... Congress can do it anyway, we give a certain amount of latitude," Kennedy continued. "I'm not sure which way the argument goes."

The case may well turn on how Kennedy decides.

Social Security and Medicare are no longer controversial mandates because they are part of the social fabric, said Hayes, the former GOP congressional aide. Not so the health care law's mandate. "Today, this is controversial because it is novel from a legal standpoint and also new from a societal standpoint," he said.

The distinction frustrates supporters of the health care law.

"It's so crazy to think that a society that has Social Security and Medicare would not find this (law) constitutional," said MIT economist Jonathan Gruber, who advised both the Obama administration and Massachusetts lawmakers as they developed the state mandate in the 2006 law that Republican presidential candidate Mitt Romney championed as governor.

"The payroll tax is worse than the mandate, because that is a program where we take your money and there is no ability to get out of it," Gruber said. Citizens can avoid the health insurance mandate by paying a penalty to the Internal Revenue Service.

Other federal health care mandates include:

— The 1986 Emergency Medical Treatment and Active Labor Act. It requires nearly all hospitals to treat and stabilize anyone needing emergency care, regardless of ability to pay or legal U.S. residency. Critics call it an unfunded mandate. It was part of a budget law signed by President Ronald Reagan.

— The 1996 Mental Health Parity Act. It prohibits group health plans from setting lower annual or lifetime dollar limits for mental health benefits as compared with medical and surgical benefits.

— The 1996 Newborns' and Mothers' Health Protection Act. It requires plans offering maternity coverage to pay for at a least a 48-hour hospital stay following most normal deliveries, and 96 hours following a Caesarean section. The mental health parity and maternal health laws were signed by President Bill Clinton.

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