RomneyCare/ObamaCare – Unconstitutional?

Federal Judge in Florida ruled today that ObamaCare is unconstitutional.  Since BMG has the finest minds on the Internet (no, that’s not sarcasm), I ask the denizens: is this likely to stand?  Will ObamaCare implementation halt while the case makes its way to SCOTUS?  Are there any ramifications for our own RomneyCare, on which ObamaCare is based?

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49 Comments . Leave a comment below.
  1. It shouldn't affect the state system.

    My understanding is that the constitutional argument says that states have general police power that the federal government doesn't have, and thus can get away with imposing a mandate.  Personally, I won't complain too loudly if the mandate and only the mandate is struck down.  I know there's the argument that the requirement to cover pre-existing conditions is unsustainable without required purchase, but if every company is forced to use the same business model that can be sorted out.  The other option is for the government to pay everyone's premia rather than taking it out of pocket.

    • Chris - it isn't a police power.

      Here's a description from an insurance web site, ASASHOP.ORG, that favors repeal -

      blockquoteIn 1945, Congress passed the McCarran-Ferguson Act. The Act said that the states could go ahead and continue regulating the insurance industry, and that no act of Congress could supercede state laws in that area unless it specifically related to the insurance business. The Act also exempted the "business of insurance" from federal antitrust laws, so long as it was regulated by the states.

      McCarran-Ferguson is what prevents insurance companies from selling across state lines, and requires 50 seperate insurance regulation bureaucracy which results in 50 different sets of what is covered by insurance.  

      • Maybe that should be repealed.

        It appears to violate the supremacy clause.  Plus on the merits it would seem better to have one set of regulation and I don't see what's wrong with purchasing state lines.  The insurance industry should favor this change.  I know if I were an insurance executive I'd much prefer to deal with one federal regulation than 50 state ones.  I also think the people would be better served this way as well.

        • The insurance industry DOES favor repeal.

          But keep in mind - if they states don't regulate, all the Mass. mandated coverages vanish.  Mass. covers a LOT of illnesses and tests that most states do not.  Most states also have lifetime caps, high risk pools, etc.  For example, MA treats the mother and child as a single entity for a hospital birth - there's even only one co-pay.  In many/most staes, a child cannot be added to a family insurance plan until it is 14 days old - so all hospital expenses on a newborn are not covered.  And those costs can be significant!

          To a lesser extent, this is also true of single payer - if there is one set of regulations, you'd have to be on crack to think that the entire nation is just going to assume the expense of covering all the things MA does.  Our coverages would instead sink to their median.

          • Generally speaking,,,

            ...I favor a baseline of federal rules which can be augmented by states if they so choose.  However, I should maybe have been clearer that I would advocate strong regulations at the federal level to begin with, but I don't want the federal government to deny to the states the option of making improvements.

      • Wrong issue - this isn't about McCarran-Ferguson

        Absent McCarran-Ferguson, the states would still have the ability to impose a mandate.  Christopher is basically correct that states have a general police power that authorizes them to do, well, pretty much anything, as long as it's not prohibited by the state or federal constitution.  This is in contrast to the federal government, which can act only pursuant to a power specifically enumerated in the Constitution.  Hence all the discussion about the Commerce Clause, which is said to justify the congressional mandate.  But all of that discussion is irrelevant to the question whether the states can impose a mandate.

        Christopher - McCarran-Ferguson does not violate the Supremacy Clause.  If Congress wants to authorize states to regulate the business of insurance, and wants to write into law a general principle of non-preemption of state law, it is most certainly free to do so.

  2. Bush v. Gore? Citizens United?

    First Hudson struck down the mandate alone. Then Vinson struck down the whole law. I have read several liberal legal scholars on the web who seem to think the SCOTUS will rule in favor of the constitutionality of it, but on Bush v. Gore and Citizens United, we had five justices side with the conservative movement's overall political strategy, as opposed to precedent.

    Obama needs to start floating some trial balloons here: If the SCOTUS overturns it all, then we will extend Medicare to everyone over 45, SCHIP to all children, and a public option is back.  So if the SCOTUS does overturn it, we make them regret their judicial hacktivism.

    • And he does that

      legislatively how?  The House of Representatives, by a margin larger than original passage, passed a two page repeal bill.  Are you suggesting that the President assume dictatorial powers to enact your public policy objectives?

      • Detail, details

        Since when has the Constitution mattered to our progressive friends?

        They will try to find a way to implement as much as possible through the Circuit courts that are friendly to them. In the NE and West Coast, they will find a way, or make a way, SCOTUS and the Constitution be damned.

    • Damn hacks!

      Why can't they be courageous like the judges who agree with me?!

      disclaimer: this is a criticism of both parties.  

  3. Legal foundation for national single-payer

    The only viable alternative to the current approach is government-operated single-payer health care. The right wing is, again, shooting themselves in the foot. If this decision stands, it means the end of the private health insurance industry. The explosion of health care costs will not somehow evaporate as a result of a SCOTUS decision to void the current legislation. Instead, health insurance costs will skyrocket along with health care costs as millions of Americans quite rationally wait until they are already ill to obtain health insurance (that cannot, by law, be denied to those with pre-existing conditions).

    The current plan is the right wing's best shot.

    The next move in the chess game, after a hypothetical SCOTUS decision invalidating the national mandate, is for President Obama to say "We did the very best we could to work within the present economic framework, and the SCOTUS has ruled against us. Government-sponsored single-payer health care is the ONLY alternative left."

    • But can single-payer be passed without Republican cooperation?

      I assume that Republicans need to agree, but they just want to stop everything.  We probably won't have non-Republican majorities for at least another 4-10 years.

      Maybe state-by-state single payer, like Vermont is trying to achieve?  At least some states can chose a functional health care system.

      Also note that the ObamaCare plan did almost nothing to cut costs.  Single payer should cut costs dramatically unless we totally screw it up - after all, every other industrialized country that does something like that has far-lower costs, universal coverage, and overall medical outcomes at least as good as ours.

      • I'm not sure they'll have a choice

        In the 2012 election, this is likely to be a huge issue.

        If this decision stands, then voters during the 2012 campaign will be facing a double-whammy of skyrocketing health care costs and skyrocketing health insurance premiums.

        Please remember that this involves more than just politics. Even if the righties win the current political/judicial round, the problem doesn't therefore go away.

    • It will never happen with a Republican majority in any House.

      It's a non-starter for this Congress.

      The mandate will be rejected by the SCOTUS 5-4. It's been funny how the Obama administration (and the pundits) have chosen to almost ignore the filings of the 26 Attorneys Generals from all across the country (with other states AGs not filing due to partisan pressure). Did they really think it was just going to "go away" (as they appear to be handling so many other problems... SS... deficits...)?

      Mandates can only, and should only, be a state's responsibility, not the Feds.

      • How will the Republican majority handle the reality?

        Suppose it goes the way you speculate.

        What do you think happens during the 2012 campaign, while health insurance costs skyrocket alongside health care costs?

        The current plan is the health insurance industry's best shot. The alternatives are all worse.

        • Maybe they can focus on healthcare costs, not insurance.

          Nobody seems to have the motivation to go for the costs. WHERE are we spending all the money? Let's do some real analysis of where the money gets spent. Is it cancer care, heart care, births, Dr visits, prescriptions...

          Then we can talk about putting together a system of low cost health centers staffed by DRs who have been trained/schooled with tax payer funds (like UMASS Med School) who will work in these centers for 5 years...

          Let's go forward with some of the reforms like creating a unified central medical record system to maintain all of our medical records. Let's keep changes like nobody getting dropped from insurance who gets sick while insured. Pre-existing conditions need to be handled by a pool and should not be a burden to any one company.

          • So we agree ...

            Today, the money gets spent by private health care providers, often raising overall health care spending because they must tailor their care to what health insurers will and will not cover.

            When you talk about "a system of low cost health centers staffed by DRs who have been trained/schooled with tax payer funds (like UMASS Med School)", you are talking about government-sponsored single-payer health care!

            Similarly, when you call for "a unified central medical record system to maintain all of our medical records", that's single-payer. Do you really think that the current patchwork of private insurers and care-providers will somehow participate in such a centralized system? Would you want them to? The privacy implications alone of such a system are staggering — a shared medical records system, with records being loaded and stored by millions of private US care providers?

            Meanwhile, the problem with prohibiting denial of insurance for pre-existing conditions while also prohibiting a mandate is that most people won't pay any insurer until they are already sick. Thus, pooled coverage doesn't help.

            We seem to agree that our focus needs to be on providing affordable high-quality health-care. Disallowing the mandate breaks what's left of the health-insurance industry. Yes, of course we need to address the costs of health-care providers. Government funding, and the sorts of programs you describe in your comment, are precisely how we can accomplish that.

            • Tom, I love you like a brother... or maybe a crazy uncle, but...

              NO! Never said "Single Payer" and probably will only say those words when the bill comes for us to have dinner and I point to YOU!

              When you talk about "a system of low cost health centers staffed by DRs who have been trained/schooled with tax payer funds (like UMASS Med School)", you are talking about government-sponsored single-payer health care!

              NO! What I was refering to was a series of centers much like Family Medical Center (FMC) in Wilmington, MA...

              For more than 25 years, the Winchester Hospital Family Medical Centerhas provided the residents of Wilmington and its surrounding communities with local access to high quality medical care.

              From walk-in urgent care to cardiac rehabilitation services, radiology to physical therapy, primary care to expert physician specialists; the Winchester Hospital Family Medical Center has the resources to provide the care families need, where they need it most ... close to home.

              These are Medical Centers associated with Hospitals that offer a wide variety of servieces inclided ER services but without the overhead of a large hospital. Duplicate these centers and staff with "subsidized tuition" Doctors. Billing would be through your insurance company of choice.

              Similarly, when you call for "a unified central medical record system to maintain all of our medical records", that's single-payer.

              Again... NO! I want a system which could mimic many similar commercial systems which would include womb to tomb medical records. Each medical services provider (DR) would have web based to a unified database which would include every medical visit. Sure we'd have some glitches initially and a few complainers of "big brother" watching, but we'd save a lot of money and would be able to learn a lot more about diseases and health conditions of our population.

              PS We need more Doctors! We need to figure out how to get more US trained Doctors to lower the supply/demand curve of DR costs.

              • asdf

                Nice of you to link to Winchester's brochure. Get click throughs? What's your point? It's a run of the mill group practice associated with a community hospital.

                And, where do you think they get their money? You pay out of pocket? Does anyone pay out of pocket for healthcare?

                BTW, they don't do "ER" they do walk-in urgent care. There's a difference.

                What doctor shortage?

                "The truth is, we don't know if there's a shortage of physicians," says AMA President John Nelson, a Salt Lake City obstetrician. "It looks like there are enough physicians for the short term, but maybe we need more because of the aging population." . Some medical policy specialists say the USA doesn't have too few doctors, just poor distribution of them.

                Distribution. Another reason Winchester has all those nice services, and Roxbury, Dorchester, Mattapan, etc. don't. I'm sure they'd like some "cosmetic laser solutions", too. God knows I could probably use some myself.

                I want a system which could mimic many similar commercial systems which would include womb to tomb medical records. Each medical services provider (DR) would have web based to a unified database which would include every medical visit.

                The obstacle there is the insurance companies themselves. Proprietary data systems, and multiple non-standard billing practices, etc.  Every insurance company has a different system, and every provider needs to deal with multiple insurance companies. A huge administrative inefficiency tax on the system.

                These systems do exist, overseas where the healthcare is better and cheaper, and in the US military/veterans healthcare system- but that's government run, so forget that.

                In this country there is no difference between health care and health insurance.

                We have the healthcare system we have because if the health insurance system we have. Same as Canada has the healthcare system they have because of the payment system they have.  

          • JohnD - this will work only if liberals stop using the terms health CARE and health INSURANCE interchangably.

        • Republicans will say it's still due to ObamaCare

          Because the medical industry still won't know whether JobKillingObamaCare is alive or not, it's still in the courts.

          Not saying I agree with that - it's just what they'll say.

          • Yes

            I think they will, as well.  I also don't think it will be true, but I do think that this will be an effective positioning on their part.

            • They break it, they own it

              Depending on the timing, this certainly a possibility.

              If the mandate is invalidated, and the shinola hits the fan, it will then be the "Republican Health Insurance Crisis."

              They break it, they own it.

              • Are you volunteering...

       make sure this becomes the "Republican Health Insurance Crisis" in terms of messaging?  Unfortunately, the other side consistently demonstrates a greater willingness/ability to make their messages of blame stick it seems.

                • Not about $quot;blame$quot;

                  It isn't about blame.

                  We did everything possible to repair the health care system while preserving the health insurance industry. The other side has done everything possible to sabotage our efforts, without regard to the consequences of their actions.

                  We don't need to blame anybody. Without the mandate, the Titanic will hit the iceberg and it will sink. We warned them, we cajoled them, we caved to them, and still they insist on hurtling headlong into the icefield.

                  In my view, our best path is to start working, now, to have a viable ship on scene after the Titanic sinks — the ocean will be filled with victims, and they will be desperate for rescue.

              • Yes

                But, politically speaking, all of the good stuff in the law comes on line a ways down the road, and if the things gets overturned by then, all anyone is going to notice is that their premium went crazy, and blame it on the law.

                In order for your notion to work out, it would require salesmanship on the part of Democrats that seemed sorely lacking in 2009.

      • Who cares about # of AGs?

        The filings are 100% along partisan lines. The challenges are clearly politically/ideologically motivated and not truly motivated by a concern for any Constitutional issue. I don't see why Obama should care whether there are 26 challenges or one. Obviously, they do have to worry about defending this, but they have a pretty good chance of prevailing. It is true that the the current right-wing bent of the Supreme Court means that those of us who care about this are going to have to sweat a bit, but it is far from obvious that the court will rule as you say.

        BTW, I call BS on your implication that Obama thinks that the deficit and SS issues are going to go away on their own. What evidence do you have that his administration has not thought about these issues? Furthermore, the Republicans have done nothing but add to the deficit for decades and decades and have done absolutely nothing about Social Security. The Republicans could care less about the deficit or else they wouldn't continue to push tax while utterly refusing to pay for the lost revenue or even acknowledge there was any lost revenue. As long as the Republicans have zero credibility on these issues, they aren't going to be able to use them to get any real advantage over Obama.

        • Funny how partisanship effects what the Constitution says.

          Kevin, do you think the Federal government has the authority to mandate that citizens (like you) purchase something from a private commercial company? Because if your answer is yes, what will the government think of next? Purchase GM cars only? I think it is a slippery slope and it seems like AGs should support or not support the HCR challenge based on how they understand the law and not what party they are in OR whether they think this is something the country needs.

          As for your BS challenge. You're correct in that I don't have any evidence. What is teh President proposing to fix SS? What is he doing to combat the deficit... proposing a "freeze" on increases?

          Stop living in the past... it's gone by already. Recent history shows the Democrats have controlled both Houses and the Oval office and did nothing about the Bush Tax cuts until the Lame Duck session... WHY? Why didn't they let them expire? Why didn't they propose fixing them 6 months before they expired? WHY?

          • Attorneys General

            it seems like AGs should support or not support the HCR challenge based on how they understand the law and not what party they are in OR whether they think this is something the country needs.

            Perhaps that's what they should do, but that's not what's happening.

            Do you really think it is a coincidence that all the AGs trying to block the law are Republicans, and all the AGs filing briefs in support of it are Democrats?

            • No I don't think it's a coincidence... that's my point.

              It's politics and I think it's wrong. AS the AG for their state, they should support a challenge based on whether it is legal or not. Very simplistic and quite naive for sure, but it would be refreshing if it happened, one way or the other.

          • Yes I do

            Clearly the Government has the ability to tax and to issue tax credits, so it could clearly replace the mandate with a tax plus a canceling-credit for anyone who purchases insurance. So it seems to me the difference is a purely legalistic/technical one.

            Furthermore, didn't someone point out a precedent from the first Adams administration in which the Government required sailors to purchase a form of insurance?

            You didn't really refute my BS claim. You know perfectly well that Republicans have no real desire to really fix the deficit, nor any reasonable plan to do so. The fact is that the Bush tax cuts are 90% the responsibility of the Republicans. You know perfectly well, that the Democrats never had the political backing to overturn them. I have said it before, Americans are dumb - they want all of their goodies without having to pay for them, so raising taxes is hard regardless what party you come from. Democratic legislators definitely are guilty of being fiscally irresponsible but it is Republicans who really take the cake. As I have said, Republicans still refuse to admit that the tax cuts have a cost. Until they do, they have absolutely no right to even be talking about the deficit.

            • I think your $quot;precedent$quot; from the Adams' admin is not even a close one.

              Sailors buying insurance vs. every single man, woman and child int he country being forced to buy something just to live int he US? Not even close in my book (not a legal book I must admit).

              Republicans were terrible with the deficit from 2000-2006. In case you missed that, Republicans were terrible with the deficit from 2000-2006.

              So... how does that fit into discussions about current events? Are we to assume Newt and the other guys will be coming back and making the same decisions?

              I'm "optimistic" that things are changing in the country and as I keep saying, we'll just have to see what happens.  

              • $quot;adverse selection$quot; again

                (1) Insurance companies only want to insure people who don't need insurance. Such people pay premiums and receive cost the companies no benefits.

                (2) People only want to buy insurance when they need it. That way, the premiums they pay will be reimbursed by benefits they receive.

                It just does not work to eliminate discrimination based on pre-existing conditions unless one makes everyone buy insurance. Otherwise, no one buys insurance until needed; the cost of insurance sky rockets; insurance ceases to be insurance. End of story. End of insurance.

                So you can choose your freedoms.

                Do you want freedom from medical catastrophe and from one of the leading causes of bankruptcy?

                Or do you want to be able to gamble on coverage from an industry willing to resort to rescission and happy to deny coverage to people with toenail fungus or with past victimization from domestic violence?  

              • Well

                if you don't like the sailors example from the Adams Administration, you also might consider the Militia Act of 1792, which mandated that "each and every free able-bodied white male citizen" join the militia and purchase a gun. That's an certainly an "individual mandate," and that was in 1792.

                So... how does that fit into discussions about current events? Are we to assume Newt and the other guys will be coming back and making the same decisions?

                I don't understand this argument. It's not like 2000-2006 is ancient history. We're not even talking about the 1990s and Newt. We're talking about many members of the CURRENT Republican caucus who voted for things like the tax cuts (during wartime, no less) and Medicare Part D. What's their excuse for turning around and now allegedly caring about deficits, John?

                I am happy that you're an optimistic, glass half-full kinda guy, but I see little evidence that many politicians -- particularly Republicans -- are actually serious about the deficit.

                • I think the only excuse for their $quot;mistakes$quot;...

                  were similar to what we just saw from Democrats. "Power corrupts and absolute power corrupts absolutely..." and when any party controls both Houses and the WH, maybe they start to believe in their own headlines and lose touch with the people and reality.

                  I've said it before that I don't want Republicans to win the three "checks" in 2012 or any other time... or as Chuck Schumer called them this week, "... the three branches of government are: "A House, a Senate, and a President".  

              • precedent

                If the Government is within its Constitutional rights to force some subset of people (sailors) to buy insurance, by what Constitutional principle is the Government restricted from doing the same for a broader class of people? I don't think there is any. Of course the more interesting aspect of that precedent is that it shows that the Founders did not seem to have any problem with the concept of requiring people to purchase insurance.

                I can see how you are queasy about the limits of Government power. Ultimately the limit of power stems from the people's ability to choose who runs the Government rather than Constitutional provisions that limit its power. The Government is Constitutionally allowed to do all sorts of things that we would not want it to do; we have no choice but to trust Congress and the Executive branch to make sure that does not happen.

                Regarding the deficit, you really have to be incredibly naive to believe that Republicans have changed their spots with regard to the deficit. Name me a Republican that did not vote for at least one deficit laden budget during the Bush years? I repeat: Republicans have zero credibility on the deficit. If they want to gain any credibility then they have to be willing to admit that the deficit is a product of both spending and cut in revenues. They also have to show a willingness to actually add numbers up instead of hand waving. They also have to shut up the idiotic members of their party who are playing chicken with the debt limit.

          • What will the government think of next?

            Uh, this is a democracy?

            • You know, been trying since our last $quot;chat$quot;...

              but the only remarks from you seem to be snarky. Why?

              • With more words

                Your comment "What will the government think of next?" is just a scare tactic. It makes no sense unless one imagines the government as a kind of mindless monster. It isn't.

                Turning it around, why are missing the point of my criticism? That I'm more terse than you shouldn't be held against me.

                • No, not a mindless monster...

                  but a body which I believes feels "they" know what's best for us. So yes, I do worry to a degree about the government finding other solutions which they impose on us under the guise of "what's best for us". Surely you don't want these people (whom I agree we elect) making those choices for us, do you?

                  • And elections are for ...?

                    Making choices for us is precisely their job. That's the current system.

                    • Of course, but don't you agree $quot;within limits$quot;?

                      Maybe we can start here... do you think the HCR bill will be heard by the SCOTUS and if so, how do you think they will rule?

                    • Within limits

                      Well, yes, of course, Bill of Rights and all that.

                      The current SCOTUS has way too many members of the Federalist Society who have been itching to narrow the reach of the Commerce Clause since the New Deal.  Justice Kennedy tends to be unpredictable. So I won't predict.

                    • It seems to me that the $quot;law$quot; should trump ideology...

                      and even what is "the right thing to do" when it comes to the SCOTUS. I know ideology of the judges has a huge influence on their decisions but even then they have to justify why they ruled  certain way. Who is being a judicial "activist" or "conservative" is clearly in the eyes of the beholder.

                      I want them to rule on the law and my non-legal opinion is the mandate section of the HCR law goes beyond the powers of the Federal government but I don't have an opinion concerning the sever-ability aspect on the entire law.

                    • I want a unicorn for my birthday

                      Unfortunately, there's no such thing as a neutral, ideology-free way to interpret the Constitution.

                      I'm reminded of Islamic Law. In the Sunni tradition, four separate schools of legal interpretation grew up. Interestingly they were all treated as co-equal for centuries.

            • This is not a democracy

              it is a democratically elected republic.  there is a difference.

  4. The wheel does not have to be reinvented

    In Canada there is overarching Federal Law that sets basic coverage, its cost, and how to negotiate with providers.  Each Province is then allowed to fashion its own plan with proper payment across Province lines.  Their care has been delivered privately for years and its physicians via the Canadian Medical Association(includes 85% of doctors) have and remain strong advocates for the system.  Yes they push for improvements but always within the context of preserving universal, affordable, and accessible coverage.  

    The same can be done here and we will see what happens in Vermont and California.  It seems citizens need real live examples in a social laboratory before they will sign on to more collective solutions.  Frankly I don't blame them and maybe this is the way to go.

    So do away with the mandate but then set basic coverage and limit costs and let's see what solutions the states come up with.  Once there is resounding success for some 5 years somewhere the rest will follow suit.

    It is sort of like watching state after state approving legal homosexual unions and assuaging the nation's nervous system and reassuring them this produces no problem in their lives and further makes us more united.

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