Ken's Project Blog

August 13, 2011

The Latest Health Care Court Case

Filed under: Health Care,In The News,Politics — Ken @ 9:36 pm

Over at the White House Blog we see Stephanie Cutter insist that the recent court decision that found part of the Affordable Care Act – the so-called individual mandate – to be unconstitutional was wrong. Her counter argument? Well, let me quote her posting:

The individual responsibility provision – the main part of the law at issue in these cases – is constitutional. Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect. Individuals who choose to go without health insurance are making an economic decision that affects all of us – when people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab. [emphasis added]

Source: White House Blog

Got that? It is constitutional because uninsured people make health care more expensive for everyone else, so the role of government (according to Ms. Cutter’s implied logic) is that of a volume discount negotiator on behalf of all Americans. I don’t remember reading that in the Constitution…

Ms. Cutter also wrote:

“For the 83% of Americans who have coverage and who are already taking responsibility for their health care, the Affordable Care Act will help insurance premiums to decrease over time. And only those who are able to pay for health insurance will be responsible for obtaining it. The Congressional Budget Office estimated that only 1 percent of all Americans would pay a penalty for not having health insurance in 2016.” [emphasis added]

Source: White House Blog

So every American that the government feels can afford health care coverage will be forced to do so, since not doing so would make health care coverage more expensive for everyone that does buy coverage. (By the way, 1% of all Americans is about 3 million Americans that would be subject to the $750 penalty that is really a tax, wait, I mean a penalty…)

I’m not quite sure where this idea that the role of government is to make things affordable originated, but I don’t think it’s constitutional, despite the White House’s simple insistence that it is – various federal courts are mixed on the issue, and the Supreme Court will weigh in soon, rendering a final decision on the ability of the federal government to require individuals to purchase a commercial product from a private company. If the federal government hopes to win that argument, they’ll have to make a more convincing argument than “it will cost less if everyone gets coverage,” because, as Robert Reich notes:

“The mandate is also particularly vulnerable to legal challenge. So far, two federal judges, one in Virginia and another in Florida, have struck it down. They say the federal government has no more constitutional authority requiring citizens to buy insurance than requiring them to buy and consume broccoli, or asparagus. The Florida judge referred to broccoli; the Virginia judge to asparagus.” [emphasis added]


We can now add the U.S. Appeals Court for the 11th Circuit in Atlanta to that list – they just found the so-called “individual mandate” to be unconstitutional as well. From the 11th Court’s Majority Opinion:

“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives,”


And let’s not forget the severability clause (or lack there of) that could bring the whole house of cards down if the Supreme Court finds the individual mandate unconstitutional…


White House White Board: The Costs of Repealing Health Reform

Heritage Foundation: Obamacare, Save Money? Not Likely.

White House Blog: The Latest Health Care Court Case The Individual Mandate in the Health Care Bill: Why We Should Trade Broccoli and Asparagus for Hot Dogs and Apple Pie Appeals court rules against Obama healthcare mandate Severability Clause at Heart of Judge Vinson’s Ruling That ‘Obamacare’ Is Unconstitutional

TaxProf Blog: WSJ: The ObamaCare Tax Penalty Is Unconstitutional


1 Comment »

  1. The good news is that we know more about the economics of health care than we did when Clinton tried and failed to remake the system. Theres now a large body of evidence on what works and what doesnt work in health care and its not hard to see how to make dramatic improvements in US practice. As well see the evidence clearly shows that the key problem with the US health care system is its fragmentation.

    Comment by hemp — August 20, 2011 @ 9:11 am | Reply

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