Dear Supreme Court, please ignore the government’s argument. Here’s why the Affordable Care Act is constitutional.

Bumped, because, with all humility, I totally called it. :D If you haven't heard, the Supreme Court has upheld the health care law, 5-4 (Chief Justice Roberts joining with the liberals), on the ground that the mandate is, basically, a tax. More soon. - promoted by david

I’ve been thinking about this for a while, but haven’t had a chance to put pen to paper, to use a thoroughly outdated metaphor.  So here it is: the Affordable Care Act is constitutional for two straightforward reasons that should have been obvious to the Justices, but that unfortunately were not laid out nearly as clearly and concisely as they should have been:

  1. The health care market is unique and is profoundly unlike any other market in the U.S., for one simple reason; and
  2. The “individual mandate” is not a mandate at all.

Why are these two points so important?  The first is critical because it supplies the “limiting principle” that Justice Kennedy was so desperate to find - it is, in other words, the answer to the “if Congress can do this, it can do anything” slippery-slope argument.  And the second is critical because it drastically diminishes, if it does not completely eliminate, any significant Commerce Clause issue in the case.  Frankly, the case should be an easy one and never should have gotten this far – and I confess that I am among those who didn’t fully appreciate the non-mandate nature of the mandate until recently.

Health care is unique

The argument on the first point is pretty simple.  In this country, if you are in need of emergency medical care, you will get it, regardless of how much it costs, and regardless of your ability to pay for it.  That principle is firmly ensconced in federal law, and appears in many state laws as well.  And it results in tens of billions of dollars of “uncompensated care” every year.

Now, the mere fact that you can get expensive medical services without paying for them doesn’t render health care a unique market.  After all, if your house catches on fire, the fire department shows up and doesn’t send you a bill later.  But the difference between health care and the fire department is that the latter is entirely paid for by tax dollars, while the former is not.

So here is what makes the health care market unique: it is the only market in this country that (a) supplies billions of dollars of services to people who cannot pay for them, and (b) is not funded by the government.  That’s your limiting principle, Justice Kennedy: there is simply no other market in the United States that works this way.

What’s worrisome is the extent to which some of the Justices seem not to understand this, and the extent to which the government failed to point it out to them when it had the opportunity.  Here, for example, is a colloquy between Chief Justice Roberts and Solicitor General Don Verrilli, from the two-hour argument on mandate day:

GENERAL VERRILLI: … In the health care market … the distinguishing feature of that is that they cannot — people cannot generally control when they enter that market or what they need when they enter that market.
CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So, there’s a market there. In some extent, we all participate in it. So, can the government require you to buy a
cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?
GENERAL VERRILLI: No, Mr. Chief Justice. I think that’s different. It’s — we — I don’t think we think of that as a market. This is a market. This is market regulation. And, in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won’t be able to control what they need when they enter, but when they -­
CHIEF JUSTICE ROBERTS: It seems to me that’s the same as in my hypothetical. You don’t know when you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need, but when you do — and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it.
GENERAL VERRILLI: I think the fundamental difference, Mr. Chief Justice, is that that’s not an issue of market regulation. This is an issue of market regulation, and that’s how Congress — that’s how Congress looked at this problem. There is a market.

This, unfortunately, is a terrible answer by Verrilli.  What he should have said is something like, “Mr. Chief Justice, the analogue to your emergency services hypothetical in the health care realm would be a single payer system where government pays for everything.  But, of course, that is not the system we have in this country.  What makes the health care market unique is that, unlike the market for emergency services, the government requires that people get the health care they need, no matter how much it costs, but it does not pay for it.  That simply does not happen in any other market.”

Justice Kennedy got close to this idea at the end of “mandate day,” when he said:

I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

If Kennedy follows that line of thinking to where it should take him, he could well be the fifth vote to uphold the Act’s constitutionality. But it should not have taken two hours of argument to get there.  It should have been the first thing out of the government’s mouth.

The mandate that isn’t

The key to this issue came not in the big “mandate day” argument, but in the previous day’s argument on whether the Anti-Injunction Act barred the Court from hearing the case at all.

JUSTICE KAGAN: The nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute, doesn’t do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?
GENERAL VERRILLI: No. Our position is that person should give the answer “no.”
JUSTICE KAGAN: And that’s because -­
GENERAL VERRILLI: That if they don’t pay the tax, they violated a federal law.
JUSTICE KAGAN: But as long as they pay the penalty -­
GENERAL VERRILLI: If they pay the tax, then they are in compliance with the law.

So the “mandate” isn’t a mandate at all.  It’s a choice: you can carry health insurance according to the terms of the Affordable Care Act, or you can see your taxes go up a bit.  That’s it.  (In fact, the IRS has even less ability to require payment of this “penalty” than it has with other taxes, as it cannot pursue criminal penalties or even file a tax lien based on failure to pay.)  And when you see it in those terms, how is the “mandate” any different from any of the other numerous incentives that Congress has written into the tax code over the years in order to encourage behavior that it deems socially beneficial?  If you hold a home mortgage loan, if you buy a hybrid car, if you replace your windows, if you donate to charity, even if you are self-employed and buy health insurance, that behavior affects your taxes.  True, in the case of the Affordable Care Act, your failure to behave the way Congress wants you to means that your taxes go up, whereas in the examples I gave your engaging in the favored behavior means they go down.  Is that a difference of constitutional magnitude?  Frankly, I cannot imagine why it should be.

The “individual mandate” in the Affordable Care Act is often compared to a state’s “mandate” that anyone who drives a car must carry car insurance.  But the Massachusetts car insurance law shows us what a real mandate looks like.

Whoever operates or permits to be operated or permits to remain on a public or private way a motor vehicle which is subject to the provisions of section one A during such time as the motor vehicle liability policy or bond or deposit required by the provisions of this chapter has not been provided and maintained in accordance therewith shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than one year in a house of correction, or both such fine and imprisonment….

In other words, driving a car in Massachusetts without carrying car insurance is a crime, and you can go to jail for not complying.  That, friends, is a mandate.  Why the government didn’t hammer home this distinction every chance it had is completely beyond me.

All of this stuff does appear in the government’s briefs, and most of it emerged at one time or another at oral argument.  But it was much, much harder to find than it should have been.  It seems to me that the government got caught up in the other side’s framing of the issues, rather than framing its own case in the most advantageous way.  If the Court strikes down the Affordable Care Act, the government’s presentation of its case may go down as one of the great cock-ups in Supreme Court history.



Discuss

48 Comments . Leave a comment below.
  1. Even before I saw your next paragraph...

    …I was thinking that it sounded like the Chief Justice was almost advocating single-payer. I’ve said all along that single-payer would be easier to defend – legally, politically, ethically, economically – but alas, too many insist on the circular argument that we can’t have single payer because that’s just not how it works in this country.

    • single payer

      I think it’s been obvious all along that if the Supreme Court were to strike down the Affordable Care Act’s mandate, that would be a very clear statement that the only way to have universal health insurance constitutionally is with single payer or something very much like single payer. If Medicare and Social Security are Constitutionally allowed and the ACA isn’t, then that’s the only logical conclusion.

      … which is one of the reasons I think that, if the court strikes down the ACA, while that would be really really bad on a practical level for tens of millions of Americans (which is why I do not want them to strike it down), politically I think this is a win-win. Whether they strike it down or not, it works in our favor politically, just for different reasons.

      • Two-thirds of Americans want Medicare for All

        But many elected Democrats do not, and elected Republicans sure don’t.

        Very, very frustrating that most of our elected politicians are far to the right of their constituents!

  2. This isn't an argument on the merits for most of the justices

    It is an argument about whether President Obama should be re-elected, and the most likely way to improve or diminish the chance of that event.

    It may be an argument on the merits for a few of the justices, or one, and in that case the argument you present is more compelling than that of Mr. Verrilli. Linking the mandate to tax policy is a move of rhetorical genius, and shows the importance of marketing in law and politics. If it had been called a “free market option” or even an “optional government fee” it would have been much harder to argue against in our market-loving society than a “government mandate.”

    David for Solicitor General!

  3. Very thoughtful post, thanks

    It makes sense – I think that you’d have done a better job representing us than the SG did.

    However… I may be off base here, but it seems like the Citizen’s United case demonstrates that there are five Justices trying to get something big done – and that something big is not the job typically done by courts. Rather, they’re trying to advance a political football, to implement a far, far right political agenda.

    Based on this, I was expecting (and still am) that these folks will strike down RomneyObamaCare.

    I sure hope I’m wrong.

  4. SCOTUS Arguments

    If the Court strikes down the Affordable Care Act, the government’s presentation of its case may go down as one of the great cock-ups in Supreme Court history.

    That statement assumes that the justices are particularly concerned about the quality of oral arguments in this case. That is rarely true in most cases; it is even more unlikely in a high-profile case such as this which represents (for the conservatives) a vehicle to challenge the long-standing New Deal consensus concerning government power.

    The fact is that both of your points, while well-stated in this post, are hardly obscure points. The justices can and should know about them (at least if they read the parties’ or various amici’s briefs). However, the important thing for the justices is not the individual mandate, or the health care bill, or any specific policy details at all. What is important is what this case will say more broadly about the nature of federal power.

    This, sadly, is a point lost on progressives hoping that the individual mandate is struck down (because they don’t like it as a policy matter) as well as conservatives who see this primarily as a way to stick it to Obama. This case is a lot bigger than Obamacare.

    • It's not so much about oral argument,

      though those were not great. It’s much more about the briefing, which is confusing and generally sub-par.

      I’m well aware that neither of the points I raised is exactly a revelation. But that’s exactly why it’s so shocking that they basically didn’t come up at oral argument, nor were they particularly emphasized in the briefs. Nor, frankly, did the Justices seem especially aware of them. As for this:

      What is important is what this case will say more broadly about the nature of federal power.

      My basic point is that it should say nothing at all. It’s an easy case about a modest tax incentive that is not materially different from any other tax incentive in the history of the Internal Revenue Code (safe for the fact that the IRS has basically been prohibited from trying to enforce it). Everyone in the case concedes, as they must, that health care and health insurance are enormous interstate markets that Congress clearly has the power to “regulate.” And because the mandate isn’t a mandate at all, the whole interesting philosophical debate about “creating” commerce, and forcing people into a market they don’t want to be in, is irrelevant – a point that, I confess, was lost on me until recently.

      • Right

        Of course I agree with you as to the constitutionality of Obamacare, in part because of the same reasons you raise in your post.

        In many ways, though, it should not be surprising that the justices are so little informed about how things actually work in real life. Judges and justices very frequently have a self-aggrandizing vision of their capabilities to handle complex policy issues, which helps to explain why so many of the courts’ interventions into public policy matters backfire. Depending on what Kennedy does, this could just be more of the same.

        I’d add that the whole “creating commerce” notion indicates how little the justices actually care about the quality of the oral argument or even the briefs in cases like this. To my knowledge, the whole “creating commerce” thing that Kennedy brought up in his now-infamous question was barely discussed in any brief, if at all. If the justices want to ignore legal precedent, practical policy concerns, and solid argumentation in the briefs in favor of Kennedy’s latest thought experiment, they can and quite possibly will in this case.

  5. I agree that healthcare is unique

    But I don’t find the “not a mandate” case persuasive. It hangs on too narrow a peg.

    To me the mandate isn’t that big a deal, in light of other regulations and the mandates they impose.

    • "I don’t find the “not a mandate” case persuasive."

      Why not? A “mandate,” by definition, would seem to have to require you to do something. The ACA doesn’t do that. Not even close. So … it’s not a mandate. End of story, no?

      • Violating it carries a penalty

        Just like — Ahem! — a speed limit does.

        What does that make it, if not mandatory? A guideline?

        But I don’t want to get bogged down in analogies. It’s compulsory commerce, and Kennedy had a point that it’s a new form of it. I’d argue that it’s not a big deal in light of other precedents.

        • Again,

          it’s not “compulsory.” It’s a tax incentive. If you don’t carry health insurance, your taxes go up a bit. Just like if you don’t donate to charity this year, your taxes will be higher than they otherwise would.

          I’ll agree that the wording of the statute suggests a requirement. But it would really elevate form over substance to conclude that the statute as worded is unconstitutional while a provision with precisely identical effect but more soothing wording would be fine.

          • If it's a tax incentive

            … then we should have a public option.

            But I digress.

            If the market is unique (and it is), then none of these analogies really work, no? HCR is a new approach to an old problem, paying for access to healthcare.

      • If it isn't a mandate, then why do supporters care about it so much?

        If the SCOTUS rules against the mandate (and upholds sever-ability) then will Obamacare supporters consider it a win?

        On a related matter… David, since you were a law clerk for Supreme Court Justices Stephen Breyer and Sandra Day O’Connor, how do you feel about the President’s remark…

        Obama said it would be “an unprecedented, extraordinary step” if the court overturned “a law that was passed by a strong majority of a democratically elected Congress.”

        Make believe George Bush had said this while you were clerking… Ignoring the blatant misuse of the word “strong” in his remark since the law passed by the skin of it’s teeth and the majority of Americans are opposed to it, do you think the SCOTUS are suppose to care about ruling a law unconstitutional or not based on if Congress passes it and by how many votes? Isn’t one of the purposes of laws/courts to protect the minority from the majority?

        • Good questions.

          I think the anti-Obamacare crowd’s effort to spin the “mandate” as an actual mandate has been incredibly successful. I fell for it for a while, and so did the government’s lawyers. Fact is, if the Court strikes it down, it will be incredibly easy to rewrite it to have exactly the same effect but not pose any constitutional problem. The difficulty, of course, will be getting it through Congress.

          On Obama’s remarks, it’s perfectly obvious that he misspoke, as he has later conceded by backtracking somewhat. Obviously the Court overturns Acts of Congress all the time, and Obama knows that. His point – and it is correct – is that the Court has not overturned federal economic legislation on Commerce Clause grounds since the Lochner era which ended decades ago. Such a move would, indeed, be unprecedented in modern times.

  6. Power to create such markets...

    What do you say to this counterargument:

    If what makes health care unique is that we have laws requiring treatment for uninsured people who cannot afford it in many circumstances, but we don’t pay for their care directly…

    … can’t Congress then take such a decision and use it to deliberately create other such markets? First they pass some laws requiring some service be rendered in certain circumstances. Then they mandate (I’m leaving aside the “is it really a mandate” issue here) that people buy coverage for that service.

    P.S. I do think health care is special for reasons not limited to what you said, I’m just not sure that particular logical argument is a good one.

    • Yes, actually,

      I think they probably can. That’s more or less exactly what Justice Breyer said when Verrilli couldn’t get himself out of a jam.

      JUSTICE BREYER: … I would have thought that your answer — can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could.

  7. what a great post.

    i learned a lot. is opera really > than con law? :)

  8. Shame...

    SCOTUS voted on the issue already.

  9. Do Emergency Rooms dispense birth control?

    Do they give you a check up and prescribe cholesterol pills, or offer therapy, or anything besides emergency care, like when you are bleeding or very sick? I think there are some things that hospitals aren’t forced to provide for free, so maybe those things can’t be mandated. Seems like people are using the Emergency Rooms excuse to get everyone to contribute to the cost of all the other non-Emergency Room stuff, which should be covered by the government single payer anyway.

    • Which is more expensive ...

      Which is more expensive, the unplanned and unwanted birth (that happens at an Emergency Room) or the contraceptives that prevent it? The multiple trips to the ER for heart attacks, strokes, and all the other consequences of atherosclerosis, or the cholesterol pills that prevent it?

      Emergency care is far more costly than the routine preventative care that avoids it. BOTH should be provided by a government-sponsored single-payer system.

      • But they aren't both provided free at emergency rooms

        David’s argument is that the government requires uncompensated care, so therefore it can require people to buy insurance. But the controversial things of mandated insurance are NOT provided by hospitals, so the argument breaks down.

        • Except that those details

          are not the basis to the objection to the mandate. The objection to the mandate– the one before the USSC– is that the government cannot force one to buy health insurance.

          Birth control is a non sequitor in this context.

        • So What

          Your logic makes no sense here. As centralmassdad notes these details are inconsequential to the underlying constitutional question.

          Moreover, the reality is that the individual mandate is *primarily* about hospital care. The “essential benefits” that must be covered under the ACA are:
          Ambulatory patient services
          Emergency services
          Hospitalization
          Maternity and newborn care
          Mental health and substance use disorder services
          Prescription drugs
          Rehabilitative and habilitative services and devices
          Laboratory services
          Preventive and wellness services and chronic disease management
          Pediatric services, including oral and vision care

          That’s it. And virtually all of those are provided primarily in hospitals as uncompensated care.

          In the ACA, further details of the “essential benefits” are left to the Secretary of HHS. The law directs the Secretary to further define the “specific” benefits within each of the categories (including contraception in the preventive category) and to update the list to address gaps or to respond to changing medical practices. “Controversial” things, then, are added not in the law itself but at the Secretary’s discretion. Virtually all those “specific” benefits – including contraception – are likely to be added as less expensive alternatives to existing “essential” benefits under the ACA itself (seesommervilletom’s comments). They are mostly decisions about money that sometimes are politically “controversial” to those that refuse to listen to health professionals and the actuaries.

          Whether these specific benefits are controversial or for care not usually provided as uncompensated care in hospitals is irrelevant. From a constitutional perspective, it is the mandate to purchase health insurance itself and not the details of the definition of “insurance” that is at issue.

        • you're so cute...

          [new] But they aren’t both provided free at emergency rooms

          Nothing is provided free at emergency rooms. Everything that happens in a hospital ER must be paid for, or it won’t be provided. Someone un-able to shoulder the burden merely shifts the burden elsewhere. But let us not fool ourselves, the care provided isn’t free and the cost isn’t magically washed away.

          But the controversial things of mandated insurance are NOT provided by hospitals, so the argument breaks down.

          Not true. An emergency room can perform an abortion. And the willingness to dispense contraception might be at the behest of local governance. Or not. Certainly the ER doctor can write a prescription for contraception and would certainly do so for someone with uterine cysts. Also, many hospitals have ‘walk-in’ clinics and ‘outpatient wards’ that are one step removed from the ER (physically and budgetarily) in which many such services are provided. Many hospitals will dispense free needles for diabetics and some will also do so for heroin addicts.

  10. Should we now expect a court challenge to mandated, uncompensated care?

    If it is in fact illegal to refuse to treat someone who doesn’t have insurance (what law is that, by the way, and what exactly does it say?), mightn’t that be declared unconstitutional as well? Have hospitals ever attempted such a challenge? This court seems like they’d definitely be receptive to the argument that making hospitals care for people is an unconstitutional interference in the market.

    • Maybe

      It is in fact illegal. The law – signed in 1986 by President Reagan – is here in some detail: http://en.wikipedia.org/wiki/Emergency_Medical_Treatment_and_Active_Labor_Act

      We could definitely see a challenge and probably would. Hospitals, doctors, and libertarians like the folks over at Cato have been arguing against the constitutionality of the EMTALA for many years.

      However, I think it’s clear that the EMTALA is very likely to be upheld as constitutional under the “Taxing and Spending” clause (Article I, Section 8, Clause 1). That’s because the requirement to treat someone applies only to those hospitals who accept Medicare or Medicaid payments. Thus, this isn’t a potentially unconstitutional over-regulation of commerce, merely a condition imposed on government spending (for Medicare/Medicaid reimbursement).

      If the EMTALA is unconstitutional, then so are dozens of federal laws that utilize Congress’ power to spend to encourage favored conduct. But I very much doubt that is the case. See e.g. South Dakota v. Dole, in which the Supreme Court upheld a federal law which withheld highway funds to states that did not raise their legal drinking age to 21.

      • A much simpler way

        I disagree with David’s line of argument, not since the substantial policy questions are not being answered, they are, and his is a much simpler and eloquent way of explaining the necessity of the mandate. I get incensed when conservatives say “I don’t want the government forcing me to buy insurance”-the easiest answer if you don’t buy it we do, all the freeloaders conservatives usually scapegoat will raise the premiums for those of us that do work, etc., hence why the mandate is a conservative think tanks solution to the health care crisis. And David points this out great.

        Where I disagree is that this is not the argument to win over conservative justices. Its a policy argument, the kind that Breyer and the liberals regularly make from the bench completely voiding the idea that these unelected judges are not policy makers but merely as Roberts once put it, umpires calling balls and strikes. That’s what Hugo Black was great at, and while his ‘originalism’ has been distorted and destroyed by the right which uses it to justify judicial activism and policy making for their side, one can use this philosophy to justify the mandate. Simply recognizing, in a conservative way, that judges should not legislate from the bench should lead these judges to let Congress make these policies. Congress regulates all sorts of industries why not this one? State governments mandate auto insurance why not health insurance on a federal level? What is most infuriating about this debate is that neither side is even making Constitutional arguments, liberals are making a policy argument not a legal one. Conservatives are inventing a legal falsehood to justify their preferred policy outcome. Were they to strike this down the intellectual consistency that makes originalism so attractive philosophically becomes just another fancy way of saying ‘the Constitution says what I want it to say’. This is why the opinion of the court is so low right now, we want our Congress to make laws and policies like this, not unelected judges. That should be the debate and Obama should totally run against the Republican Congress and the Court if he loses on this one. Judicial minimalism, applied broadly, would really reduce the courts polarization and conversely reduce its influence significantly.

  11. Maybe we should start thinking/discussing the "what comes after" ObamaCare is struck down.

    I think it goes down in flames this week. AAnd when it does I hope some of these so called experts can admit they were wrong with all of their predictions… although I’m sure what we will probably hear is how the SCOTUS made another mistake (some people just can’t admit they’re wrong as we just discussed when people’s candidates lose and they can’t admit defeat).

    Those discussing Single payer might just as well discuss life on Mars since I don’t think we’ll ever see it in our lifetime. Most Americans don’t like ObamaCare and will be happy when it gets canned. I’m hoping we can get some agreement, rather quickly on a bill to restore some of the features of the healthcare reform which had broad appeal (pre-existing conditions, children up to 26…). I also hope we could begin anew some discussions of broader healthcare reform which we missing from the previous talks (tort reform, Medicare reform, standardized healthcare records…). Romney has a lot of experience devising plans as he did in MA so I’m sure he can figure something out for the country that will be acceptable on a state-by-state basis.

    • States vs. Federal police powers on health care

      How much of the difference is the place for states’ police power vs. that of the federal government to enforce to mandate?

      • States can only give more freedom, never less

        The minimum standard for freedom is set by the Constitution and states can never encroach on that. They can offer more freedom to residents, such as allowing people to gamble or marry their first cousin, but those things are not rights, as evidenced by the fact that not all states allow them and that hasn’t been found to be unconstitutional. If something is declared a right, like abortion in 1973, then no state can completely prohibit it and any limits have to be justified. I think people have a right to choose how to spend their own after-tax money, if we want to buy some kind of insurance products or not, and Massachusetts is violating my rights by making me buy insurance and forcing me to subsidize things I don’t want to subsidize.

  12. johnd contradicting himself and seascraper for once makes a valid point

    Seascraper hit the crux of the constitutionality question by pointing out that the question is the difference between the federal and state government when it comes to police powers, though I personally think ACA is on solid ground here.

    JohnD includes pre-existing conditions as something to restore though many suggest that a mandate is required to back that up. He also points to Romney’s experience in MA, but that experience is creating a plan on which the ACA is modelled, including the dreaded “mandate”. Right now the consensus seems to be SCOTUS will throw out the mandate. I don’t mind admitting when my predictions are wrong as that is a matter of objective fact. I do, however, reserve the right to express my opinion that SCOTUS was mistaken in its constitutional reasoning.

    • Pre-existing conditions and mandates

      Without a mandate, I can wait until I’m very ill and only then buy insurance. Since pre-existing conditions must be ignored, the insurance company has to sell it to me. Taken to its absurd extreme, one could buy insurance when one got sick and then go off it when one got well.

      What do we expect the market to do in response to that? Does the price of insurance rise to $500,000 per month? Do businesses leave that market altogether because it cannot be profitable?

      • With a mandate, you can wait till your very ill.

        The current schema is 2014 – $95 per adult in an uninsured household, increasing to $325 in 2015, then to $695 in 2016. Then it will go to a percentage of a household’s income. Compare that the cost of healthcare and it still makes sense to simply opt out. Taken to its absurd extreme, you can game the system right now and get the same results… WITH Obamacare.

        I would hope each state could develop a plan which would work for their state. It’s worked for MA.

      • I would go further

        Someone with a “pre-existing condition” almost by definition already knows quite a bit about that condition.

        Gee, because of my condition, I know to expect $300/month in prescriptions, plus a lot of medical tests, doctor visits, and maybe an ER trip, so I might spend, on average, $6,000/year. So, if the insurance that “must” be provided to me costs more than $6,000/year, I will skip it. If it costs less, then I will take it. As the premiums and treatment costs move, I will always make the same calculation, as will all of the other people with pre-existing conditions. The result is that the pool of pre-existing insured ALWAYS loses money, no matter what the premiums cost. Even when the premium is $500,000/month.

        Absent a mandate, there can be no coverage of pre-existing conditions. Period. It cannot be done, and certainly not by private carriers that wish to remain in business.

        If the mandate is flipped and the must-cover rule remains, it may be a Pyhrric victory for the GOP, because IT will have to advance the repeal of the must-cover rule, or watch the various “market” players implode.

    • I am not contradicting myself.

      I know it is politically expedient to throw things together and make them the same but I have often heard the expression “false equivalencies” here at BMG. ObamaCare may have gotten it’s idea from Romney Care but that does not make them the same. BMW got their idea from Ford but that doesn’t make a Taurus the same as a 535i.

      As for being wrong, what was your prediction about the Arizona Law in the SCOTUS?

  13. I have heard some suggest they don't absolutely have to be linked.

    If every company were forced into that business model they would find a way to make it work. Besides, when we speak of pre-existing condition horror stories, it’s the person with a chronic disease or something they’ve dealt with their whole lives, often previously been insured albeit with a gap in coverage. There could also be an annual enrollment window so there is not a post-diagnosis rush to purchase. Of course, this should never be a market proposition anyway which is why I favor single-payer.

    • It wouldn't work that way

      Periodic “open enrollment” might only prevent a quick jump into the ranks of the insured for those who have recently discovered acute illnesses. But it is certainly my impression that a lot of the costly treatment is for chronic illnesses, which must be managed by frequent care and pricey cutting edge pharmaceuticals.

      Someone with a chronic condition learns pretty fast how much it costs. Once they know that, then they can make their decision, even during an “open period’ based on that knowledge. In the aggregate, these decisions mean that the previous-condition pool loses money, no matter what the cost of the premium is.

  14. All the arguments in the world mean nothing

    when you have a bench that is made up of people who go into a hearing with their minds made up. The conservative bloc on the Court, especially the Bush I & II, named group, has worked their entire professional careers at defeating issues such as this. This is an opportunity they will not pass up, and I expect the ACA to go down.

  15. johnd

    Romney won’t be figuring “something out for the country that will be acceptable on a state-by-state basis” because he already has – it is called ObamaCare, as much as you, and Romney, want to deny it.
    Most people don’t like PPACA because most people don’t understand it (shame on the WH.)
    The Recovery Act speaks to this somewhat in that it has expanded maedicare recipients by something like 14 million.
    Maybe excepting pre-existing conditions will bring more folks to the market – who knows? Maybe those staying on their parents coverage until 26 must agree to pay for a plan after 26. Not exactly a mandate – but you can’t have it both ways either.
    If the court strike all or part of this legislation it will not change the fact that health care coverage and delivery in this country is an escalating bubble and a broken system.

  16. Health care as it should be...

    “I wondher why ye can always read a doctor’s bill an’ ye niver can read his purscription. F’r all ye know, it may be a short note to th’ dhruggist askin’ him to hit ye on th’ head with a pestle. An’ it’s a good thing ye can’t read it. If ye cud, ye’d say: ‘I’ll not cash this in at no dhrug store. I’ll go over to Dooley’s an’ get th’ rale thing.’”

    – Finley Peter Dunne, 1899.

    Read more: http://www.esquire.com/blogs/politics/#ixzz1ypIlTZKM

  17. Let me be the first to congratulate you.

    on your line of thinking. Nice work.

    I am glad this issue is past us.

  18. I only meant "past" as in the decision

    I was suffering from pundit speculation overload.

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