ObamaCare Update

Prediction: after today’s oral arguments over the Patient Protection Act, the individual mandate is in very deep trouble and quite probably as good as gone. While Paul Clement’s argument probably did not swing any wavering justices, it likely settled whatever doubts they may have entertained. In any event, it was absolutely brilliant. Personal favorite: a polite but firm dressing-down of Justice Breyer, in one of his increasingly frequent demagogic moments (pages 60-64 of the transcript).

The mandate’s impending demise lends additional interest to tomorrow’s argument over (1) the mandate’s “severability” from the remainder of the statute and (2) the question of whether the statute’s Medicaid expansion is unduly and unconstitutionally “coercive” under South Dakota v. Dole.

The Federalist Society has a podcast debate on the Medicaid issue featuring Richard Epstein and yours truly. (Richard’s amicus brief on the matter appears here.)  Friends and occasional co-authors, we agree that the states’ challenge, as presented, is a sure loser; that Dole’s “coercion” inquiry is hopelessly incoherent;  and that Medicaid (with or without Obamacare expansion) is a menace to a free society. We disagree as to the nature and scope of constitutional constraints on conditional funding programs

Medicaid hangs together with the severability question and, in particular, the plaintiffs’ rather bold position that if the mandate falls, the entire Patient Protection Act must fall with it. The Supreme Court is not going to sustain the Medicaid expansion on a separate challenge and then mow it down on a non-severability analysis. It remains to be seen, then, what (if anything) will fall with the mandate. For a quick riff on that issue, endorsing a CEI/Tom Miller/Tom Christina amicus brief to the effect that Title I of the PPACA (including health insurance exchanges and coverage requirements) should fall with the mandate, go here.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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Comments

  1. says

    Several points;One, I was inlatiily simply making a true statement that some companies that provide health insurance coverage are dropping that portion of their business, as Obamacare makes it harder for them to do profitable business in the market. That never is a good thing, as more choices to the consumer always benefit the consumer, and vice versa. Whether or not some companies drop the benefit of health care coverage to their employees remains to be seen, however, one has to look at companies like McD’s, who requested a waiver, and wonder why they did so, if it wasn’t for the reason of continued coverage for their employees(those that rate it). My guess is that there will be some companies that drop that benefit, and the result will be an increasing burden upon everyone to provide them with coverage. Don’t you ever wonder why the progressives have stated that their end goal is a single-payer, government provided healthcare system? Tell me how that is a good thing.Two, as Mata pointed out above, one really has to stretch the commerce clause , or look at it with extraordinarily wide latitude, in order to convince themselves that Obamacare falls under the purview of powers granted to Congress, and by extension, the federal government. I really hate repeating myself, as I have commented on this clause in previous topics, and the expansion of federal government power under it, in complete disregard to the original intent, as outlined within the Federalist Papers. You may choose to disregard those writings, however, it doesn’t change the fact that they were written in defense of the Constitution, as written, and supplied the original intent of nearly every questionable, or as you put it, ambiguous language, contained therein. The continued disregard for the original intent of the clauses, phrases, sections and articles within the Constitution by politicians is responsible for the overreach of the federal government over the course of our country’s history. The Constitution is supposed to be the supreme law of the land, correct?Article IV;This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;However, it cannot be held as a standard to which all other laws and regulations are compared to when the meanings of it’s contained clauses, phrases, paragraphs, etc., continue to be stretched to include items not meant within the original intent of them. At that point, there is no standard to compare to, and every law or regulation simply becomes the whims of men, and rule by law, which our nation was founded upon, dies.Furthermore, the Constitution itself provides for changes to itself, and has been used over the years in a handful of cases, one even to correct the change. Why is this not done? It would be perfectly within the rights of congress, and the states, to enact an Amendment in order to expand the federal government’s powers, even to include such things as Obamacare. Why isn’t it done that way? Instead, congress, and the presidents, have continued to expand those powers by the continued disregard of the original intent of the clauses, phrases, paragraphs, etc., and argue, based on ever changing stated definitions of those clauses and such, in order to progress our country. UnConstitutional is unConstitutional, no matter how you look at it. As an exercise, why don’t you explain to the readers here exactly how a mandate to engage in commerce, no matter if one wishes to or not, is allowed by the commerce clause . I will wait patiently for the explanation.Reply

    • says

      Larry: Since I am so dumb, could either you or Mata exilapn to me what she meant by “administering health care,” if she is not talking about health care administration? Administer as in to bring into use or operation, to minister remedially, to furnish the benefit of, or to make application of. I used it in the sentence as a verb, not an adjective (as in administration department), Larry.The cost of administering, or providing, health care as a hospital, clinic, doctor etal encompass all that comprises their base line overhead cost of supplies, equipment, professionals, insurance, facilities, utilities, bureaucracy/accounting, etc. Some of the ways to reduce the costs have been addressed in O’healthcare, tho I find it offensive that companies need to be mandated by the federal government to go to digital records by an x date. I also find it even more offensive that, within that same mandate, is included their rights for sundry agencies to access to that privacy database. But that’s another story altogether When you bring down the cost of goods/service, you can bring down realistic premium prices, or the cost of paying for those goods/services, without it being detrimental to the quality of that service down line. Simple concept, really. Don’t care about the popularity of RomneyCare. I care about Congress overstepping their Constitutional boundaries using the Commerce Clause, and their cheap bandaid over a problem that masks a cut well, but does nothing for disinfecting the wound. Price fixing premiums and simply making lower payouts for government adminstered/controlled healthcare while the costs of providing/administering that service continue to skyrocket does nothing to solve the problem. I’ve used the same analogy before to you, and evidently will have to again. If it costs me $20K to manufacture a car, and the government tells me I can only sell that car for $21K when they are paying for it out of taxpayer collected funds, I will not continue in business for long. Not unless I either cut out the government business clientele, or charge others (i.e. cost shifting) others more to make up the difference.If I can lower my costs of production to $17K, than I may be able to subsist on that mandated high price I’m allowed to charge.Conversely, if my costs to manufacture that car go up to $25K the next year, and the government tells me I can’t raise the price to accommodate for my increased overhead and, instead, cuts the payment to me, I’ll be out of business almost instantly. Or I will cease to have the government as a client in business self defense.It’s the same fiscal reason that you decided not to offer your services to those on Medicare . as have other doctors. Price fixing is illegal except, I guess, when the government engages in that practice. But there is no instance I can think of where government should be able to mandate prices on services or goods provided by the private sector. Which is the prime reason they are trying to do a slow changeover to making it a public sector perk.Reply

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