Sunday, June 24, 2012

Catch-22: Affordable Care Act

"They're trying to kill me," Yossarian told him calmly.
"No one's trying to kill you," Clevinger cried.
"Then why are they shooting at me?" Yossarian asked.
"They're shooting at everyone," Clevinger answered. "They're trying to kill everyone."
"And what difference does that make?" 
--Catch-22, Joseph Heller


The Supreme Court is deciding the fate of President Obama's flagship legislation on health care reform this weekend. Rumor has it that it's an all-or-none decision whereby the whole thing gets approved or it's tossed. I won't conjecture on the arithmetic except to say that four justices are pretty anti-Obama on most issues.

An attorney blogs at ScaryLawyerGuy about the problem with the ACA's mandate to buy health insurance:
The complication arises because the law, opponents say, affirmatively requires a person to buy health insurance even if they are not currently sick and may (in theory at least) never need it. In doing so, these opponents say, the government cannot force a person into a consumer market involuntarily. Indeed, this argument goes, this is the first time Congress has ever required citizens to enter the "stream of commerce" against their will. 
Alternatively, instead of using the Commerce clause the Obama administration could have exercised the federal government's broad powers to "tax and spend"-- the same power that allows the collection of Social Security and Unemployment insurance-- and would have solid legal footing because of the many precedents.

Why did the Obama administration choose the more precarious "purchase mandate" of the Commerce clause over the "tax and spend" avenue? SLG:
That answer is simple and can be summed up in one word - "politics." Democrats took the politically easier, but legally more challenging route because they did not want the dreaded three letter word T-A-X attached to this bill. Just another example of bad politics making bad law. Oh well, at least every legal scholar with a JD next to his/her name will be busy next week. 
I'll add that I'm sure part of the calculation was that passing the law-- any law-- was of paramount importance and plan to fight the legal battles later, hopefully after the 2012 election.  That timing didn't work out very well for President Obama because if the SCOTUS overturns the ACA his re-election will be jeopardized.

Of course overturning all of the ACA could be very unpopular since it would take millions of young adults off their parents health insurance and also might allow health insurers to put caps on lifetime benefits. These two popular clauses of the ACA mandate are in play and health insurers and the Supreme Court justices know it. In a masterstroke by the insurance industry, however, Forbes reports: 

UnitedHealthcare, the nation’s largest private health insurance company, has announced its intent to continue allowing parents to keep their kids under the age of 26 on their insurance policies...[and] [t]he company additionally intends to continue its ACA required policy of not placing lifetime caps on benefits, thus protecting insured customers from using up their coverage should they encounter a serious, long-lasting illness. 

Game. Set. Match.  This missive was put out for consumption by the Supreme Court justices to give them cover if and when they do overturn the ACA. This way they can easily call Obamacare unconstitutional and sleep well knowing that the two most popular clauses will be voluntarily kept in place.  It's a small price to pay for the insurance industry to destroy Obama's re-election chances.

Why might the ACA get nixed? Answer: Because the corporate overlords don't want it. 

The word "tax" has been so tainted by corporate-backed propaganda that the only way Obama's ACA could have passed Congress is by using a failed interpretation of the Commerce clause, but this is likely not to make it past the SCOTUS.


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