The Supreme Court may strike down the Affordable Care Act’s individual mandate but appears poised to uphold most of the law against a constitutional challenge from a coalition of red states backed by the Trump administration.
A majority of justices were skeptical that a 2017 Republican tax bill endangered the entire statute. While that law created doubts about the continued legality of the controversial mandate to buy health insurance, other popular provisions, such as coverage for preexisting conditions, do not appear to be in danger.
The High Court’s new composition seemed to have little effect on the fate of Tuesday’s challenge. Justice Brett Kavanaugh telegraphed that he thinks the bulk of the health care law should stand even if the individual mandate is struck down. Justice Amy Coney Barrett raised doubts that one set of plaintiffs even had a right to be in court. Those developments follow dire warnings from Senate Democrats that Barrett’s confirmation would endanger health care coverage for millions of Americans.
The Court’s apparent direction greatly simplifies the health care agenda for President-elect Joe Biden. A decision striking down the ACA would send the new administration back to the drawing board on health care, while it faces the likely prospect of a GOP-controlled Senate. Biden favors a plan that would make government-funded health care available alongside private plans.
The case arose in December 2017 when congressional Republicans passed the Tax Cuts and Jobs Act. The law effectively zeroed out the individual mandate, setting the financial penalty for failing to purchase health insurance at zero dollars. The Supreme Court said in 2012 that the ACA’s requirement to buy health insurance could be upheld as a tax. In turn, a group of red states and a few individuals brought a fresh legal challenge. They reasoned that because the mandate is no longer generating revenue, it cannot be legitimated on tax grounds.
In a highly unusual move, the Trump Justice Department declined to defend Obamacare in court, so a group of blue states led by California intervened to do so.
The biggest issue in Tuesday’s case is the question of what happens if the mandate is unconstitutional. The answer turns on a legal doctrine called “severability,” or a general preference for preserving as much of Congress’s work as possible when courts find particular parts of a statute unlawful. Two conservative members of the Court, Justice Brett Kavanaugh and Chief Justice John Roberts, plainly indicated that they think the mandate can be severed from the ACA if it has been rendered unconstitutional by the tax law.
“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place, the provisions regarding preexisting conditions and the rest,” Kavanaugh said in a key exchange.ADVERTISING
Roberts had even more pointed words for Texas solicitor general Kyle Hawkins, who argued for the red states. The chief justice said the Court shouldn’t step in to scuttle Obamacare when the Republican Congress itself did not repeal the law, even as it zeroed out the mandate.
“I think, frankly, that they wanted the Court to do that,” Roberts said. “But that’s not our job.”
“Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question,” he added.
Critically, however, the chief justice did not give away his thinking on the continued legality of the mandate. He asked only about severability and whether the plaintiffs had a basis for being in court.
Donald Verrilli, the former solicitor general who defended the ACA in court for the Obama administration, appeared before the justices again Tuesday, this time on behalf of congressional Democrats. He noted that millions of people are covered under the ACA and that the entire health insurance sector has operated for years in compliance with its requirements.
“To assume that Congress put all of that at risk when it amended the law in 2017 is to attribute to Congress a recklessness that is both without foundation in reality and jurisprudentially inappropriate,” Verrilli said.
As to the legality of the mandate itself, the red states say it cannot be sustained as a tax if it doesn’t raise money for the government.
“The mandate as it exists today is unconstitutional. It is a naked command to purchase health insurance, and, as such, it falls outside Congress’s enumerated powers,” said Hawkins.
The liberal justices sparred with Republican lawyers on this point. Justice Elena Kagan questioned how a toothless mandate could amount to unlawful strong-arming.
“How does it make sense to say that what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?” Kagan asked.
Justice Samuel Alito later countered that there aren’t other examples of a zero-dollar tax penalty in federal law, making the mandate suspect in its current form.
“Are you aware of any provisions in the [U.S. Code] in which Congress has purported to use its taxing power to say you must do this, and we’re going to tax it and we’re going to set the tax at zero?” he asked acting solicitor general Jeff Wall, who argued for the Trump administration.
Another issue is whether the plaintiffs even had a legal basis, called standing, for getting to court. In court papers, the blue states said that harm is a necessary prerequisite for a lawsuit, but a mandate penalty of zero dollars isn’t harming anybody.
“It is legally clear that absolutely nothing will happen to them if they choose to go without coverage,” the blue states wrote of the individual plaintiffs in court papers. Even if the individual plaintiffs don’t have standing, the red states say they do because the mandate effectively requires them to spend more on health care.
A decision in the case, No. 19-840 California v. Texas, is expected in the spring or early summer.
Under our current law, federal charges can be brought for arson when a person willfully and maliciously sets fire to a building, structure or vessel. Federal bank robbery charges must include evidence that a person, by force or intimidation, takes or attempts to take something of value belonging to a bank, credit union, or any savings and loan association. And if a new bipartisan bill from two senators were to be enacted, a prima facie case for “unfair or deceptive” conduct would require the government to show that a person…filed for a patent.
Yes, we’ve somehow reached the point where inventing something is only OK if you don’t plan to protect that invention with a patent. Maybe the next step will be to outlaw invention altogether, but I suppose we can be thankful we’re not there yet. For now, Senators John Cornyn (R-TX) and Richard Blumenthal (D-CT) have proposed a new law where if you have discovered a way to help some sick patients and then invest capital in new research that may have the effect of helping additional sick patients, you are presumed liable under the antitrust laws if that new investment leads to a patentable invention.
To ground us in reality — sometimes you have a medicine that helps a group of people get better. In those cases, it should not only be legal, it should be encouraged to pursue additional research to see if that medicine can be improved further, or help people fight other diseases.
After making such an investment, can you hope to argue your way out against the government antitrust enforcers? Good luck with that, since you are starting with presumed guilt. But perhaps it would be wiser, before you undertake resource-intensive research, to check in with the newly installed innovation czars at the Federal Trade Commission. In this way, the FTC will decide who lives and who dies. It’s a reincarnation of the Obamacare death panels, only with FTC bureaucrats instead of bureaucrats appointed by the Department of Health and Human Services.
Companies would also be well advised to study what disease areas are most likely to elicit the sympathy or personal interest of FTC commissioners or their immediate family members and tailor their R&D budgets accordingly. If your research turns out to be insufficient to meet the FTC standards for a substantial benefit, you may not only have wasted your money, you may have committed an antitrust violation.
But what about the Constitution? Well you see, our nation’s founding fathers clearly were unaware of the all-knowing powers of the Federal Trade Commission when they specified a right to one’s own inventions (your Intellectual Property) as the only individual right described in the text of the Constitution. And the icing on this big-government cake is that the FTC can bring this new charge in their kangaroo court of FTC administrative litigation, where the FTC acts as prosecutor, judge and jury.
This bill claims to be about prescription affordability (it is titled the Affordable Prescriptions for Patients Act, or APP Act), but nothing in it makes prescriptions more affordable. The most likely direct effect on pricing will be the cost of parking near the FTC, while diminishing the property rights of American innovators. Antitrust lawyers will certainly derive some benefit, but that could increase their hourly rates if demand for their services goes up. So maybe the APP acronym is really for the Antitrust Practitioners Paradise created by this legislation.
By Fred Lucas • Fox News
Texas AG Ken Paxton and Wisconsin AG Brad Schimel on the lawsuit to end ObamaCare and the future of DACA.
Idaho has become ground zero in a new ObamaCare fight, with officials pursuing major changes that could serve as a national model for other states looking to expand insurance options in defiance of the law – even as Democrats warn of higher costs for vulnerable customers.
As soon as April, Blue Cross of Idaho is planning to make new options available.
That’s after Gov. Butch Otter and Lt. Gov. Brad Little co-signed an executive order asking the Department of Insurance to seek creative ways to make health coverage more affordable. The move opened the door for plans that don’t adhere to ObamaCare coverage requirements – though with the Trump administration testing similar ideas, the state may be unlikely to face much resistance from the White House.
The state’s insurance department now aims to let insurers sell cheaper, less comprehensive plans that officials project Continue reading
The Trump administration moved Tuesday to allow health insurers to sell lower-cost, less-comprehensive medical plans as an alternative to those required under ObamaCare – in a plan that drew swift protest from congressional Democrats.
The proposed regulations would allow insurers to sell individual consumers “short-term” policies that can last up to 12 months, have fewer benefits, and come with lower premiums.
The plans also would come with a disclaimer that they don’t meet the Affordable Care Act’s consumer protection requirements, such as guaranteed coverage. Insurers could also charge consumers more if an individual’s medical history discloses health problems.
But at a time of rising premiums, Trump administration officials touted the option as a boost for those who need coverage but don’t qualify for the Affordable Care Act’s subsidies and would otherwise face paying the full premium cost.
by Ali Meyer • The Free Beacon
Waiting times for medically necessary health care services under Canada’s single-payer system have hit a record high, according to a report from the Fraser Institute.
Sen. Bernie Sanders (I., Vt.) has touted Canada’s single-payer system, saying it is a model the United States should follow. He introduced a “Medicare for All” plan this past September.
“The issue that has got to be studied is how does it happen that here in Canada they provide quality care to all people, and I don’t think there is any debate that the quality of care here is as good or better than the United States, and they do it for half the cost,” Sanders said.
Sen. Elizabeth Warren (D., Mass.) cosponsored Sanders’s bill, saying she believes the measure will bring high-quality and low-cost care to Americans. Sen. Kirsten Gillibrand (D., N.Y.) wrote a provision in Sanders’s bill allowing Americans to buy into a public plan during the transition to single-payer.
The Fraser Institute found that patients under Canada’s single-payer system this year waited an average of 10.9 weeks—roughly two-and-a-half months—from the time they had a consultation with a specialist to the time at which they received treatment. Physicians consider 7.2 weeks to be a clinically reasonable wait time. Continue reading
By Christopher Jacobs • The Federalist
How many individuals would knowingly want to enroll in a form of health coverage with “persistently inferior” outcomes? It’s a good question, as a new study released last week suggests that Medicaid provides those persistently inferior outcomes in the nation’s largest state, raising more questions about the program that represents the bulk of the coverage expansion under Obamacare.
What This Study Looked Into
The study, published in the Journal of the American Medical Association Oncology, used a California data registry to compare cancer survival outcomes across multiple forms of insurance and nearly two decades (1997-2014). The study classified patients based on four forms of insurance: Private coverage; Medicare; other public coverage, about three-quarters (74 percent) of whom were Medicaid patients; and the uninsured. Continue reading
By Ali Meyer • Washington Free Beacon
Repealing the Affordable Care Act’s individual mandate would reduce the federal deficit by $338 billion in the next decade, according to a projection from the Congressional Budget Office.
The individual mandate requires that Americans purchase health insurance or pay a penalty to the Internal Revenue Service for not having coverage. A recent Taxpayer Advocate Service report found that roughly 4 million Americans paid an average penalty of about $708 this year for a total of $2.8 billion.
The budget office predicts that eliminating the mandate would reduce the deficit by $338 billion from 2018 to 2027 and would decrease the number of those with health insurance by 4 million in 2019 and by 13 million in 2027. Even with this loss, the report says that markets would remain stable in almost all areas of the United States over the next decade. Continue reading
by Ali Meyer • Washington Free Beacon
Out-of-pocket costs for specialty drugs under the Affordable Care Act increased 16 percent from 2016 to 2017, according to a report from HealthPocket.
While prescription drug coverage comes standard with Obamacare plans, not all medications prescribed to individuals will be paid for.
“For a plan to help pay for a drug, the drug must first be included on the health plan’s formulary,” the report states. “Drugs that are off-formulary are not only paid for completely out-of-pocket by the enrollee but those expenses do not count towards the annual cap on out-of-pocket spending.” Continue reading
By Stephen Moore • Washington Post
The danger of a Republican bailout of Obamacare is mounting with every passing day. A group of “moderate” Republicans calling themselves the Problem Solvers Caucus is quietly negotiating with Democratic leaders Nancy Pelosi and Chuck Schumer to throw a multi-billion dollar life line to the Obamacare insurance exchanges.
This bailout, of course, would be an epic betrayal by a Republican Party which has promised to repeal and replace the financially crumbling Obama health law.
Republicans who are “negotiating” this bipartisan deal, such as Sen. Lamar Alexander of Tennessee, object to the term “bailout” for this rescue package. The left prefers the euphemism “stabilizing the insurance market.” Continue reading
by Scott Erhlich • The Federalist
Why do single-payer health care supporters treat it like an unassailable good? Even if you can point to a place like Denmark, with 5 million people and little ethnic diversity, why do people think we can transport that into a country of 330 million ethnically diverse individuals with the same results? After all, we couldn’t even get Americans to buy into the infinitely easier metric system, but they are going to enjoy higher taxes to pay for rationed health care?
I’m not here to bash single-payer because it’s European. I’m also not a fan of socialism in principle, but if there is a way to provide better care at a cheaper price, then I’d be all for it, even if that would make me an awful libertarian. But the arguments I hear for single-payer nationwide are full of ridiculous extrapolations, economically illiterate assumptions, and pie in the sky dreams of willing, abundant, qualified providers to treat these hundreds of millions of patients. I’m willing to listen, but the arguments need to be better.
I recently debated a very accomplished doctor and single-payer supporter. Single-payer is more efficient because it doesn’t have to take into account profits, she said. It reduces administrative costs, there’s less waste, fraud, and abuse, and therefore even conservatives would be stupid not to jump on this opportunity. Continue reading
By Scott Ehrlich • The Federalist
On the day the American Health Care Act passed the Republican-controlled House of Representatives, the hashtag #IAmAPreExistingCondition was trending on Twitter. At the time I saw it, there were about 65,000 tweets on it.
Earlier that day, I had read in a different article that at its peak only 115,000 were members of the Pre-Existing Condition Insurance Plan (PCIP), a high-risk insurance program established as a bridge between pre-Obamacare coverage and the establishment of its exchanges. This brought to mind two key realizations: people care very much about those with pre-existing conditions and want to see them taken care of, but it’s also not a huge number of people and it’s very hard and expensive to insure them no matter what mechanism Americans use.
How People with Pre-Existing Conditions Get Insurance Continue reading
Barack Obama emerged from his short-lived political retirement on Sunday to call on Members of Congress to show the “political courage” to preserve ObamaCare. But wait. That plea doesn’t square with the deluge of recent stories predicting that Republicans have doomed their majority in 2018 by voting last week to repeal ObamaCare. How does it take “political courage” to oppose something that everyone claims is politically suicidal?
Perhaps because the predictors of Republican doom could be wrong. The midterm election is still 18 months away, and many events will intervene that could influence the result. But even if the campaign does turn on repealing ObamaCare, we’d argue that the politics are better for Republicans if they pass their reform and fulfill a campaign promise than if they fail and then duck and cover.
Start with the safe assumption that the Democratic base will be highly motivated to vote next November no matter what Republicans in Congress do. The left will be eager to repudiate President Trump, and that means trying to retake the House and Senate. House Republicans can’t do much to deflate that liberal enthusiasm, any more than Democrats could deter the tea party in 2010. Continue reading
By Ali Meyer • Washington Free Beacon
Aetna, one of the nation’s largest health insurers, has announced that it will exit all Affordable Care Act exchanges in 2018 after experiencing massive losses in 2016 and 2017.
Aetna announced in August of last year that it would scale back its participation in the Obamacare exchanges in 2017—from operating in 778 counties to 242—citing losses of more than $430 million since January 2014. At that time, the company said it would still operate in four states: Delaware, Iowa, Nebraska, and Virginia.
Earlier this month, the company said it would exit the exchanges in both Iowa and Virginia, saying the insurer has continued to face profitability headwinds from individual commercial products. The company even went so far as to set aside a fund to buffer it from projected losses. Continue reading
By Brian Frankie • The Federalist
The Patient Protection and Affordable Care Act (PPACA, a.k.a. Obamacare) has been an utter mess. From passage in 2010 with procedural gimmicks to implementation in 2013 with unworkable software, from the loss of doctors and health plans millions wanted to keep to escalating premiums and insurers dropping out of the market, Obamacare has fallen short of nearly every conceivable goal of health-care reform.
There’s one single exception: Obamacare has dramatically expanded health insurance coverage. This single remaining reason explains why it retains the support of progressives and a significant chunk of the electorate. All other considerations are secondary, if not irrelevant. More people have health insurance, so more people are benefitting from improved health outcomes and access to care.
There is only one simple flaw in this reasoning. It does not appear to be true. Continue reading
By Christopher Jacobs • The Federalist
Last week, Vox ran a story featuring individuals covered by Obamacare, who live in fear about what the future holds for them. They included people who opened small businesses because of Obamacare’s coverage portability, and worry that the “career freedom” provided by the law will soon disappear.
Unfortunately, but perhaps unsurprisingly, Vox didn’t ask this small business owner—who also happens to be an Obamacare enrollee—for his opinions on the matter. Like the enrollees in the Vox profile, I’m also incredibly worried about what the future holds, but for a slightly different reason: I’m worried for our nation about what will happen if Obamacare ISN’T repealed.
What Obamacare Hasn’t Done For Me
Unlike many of the individuals in the Vox story, I am a reluctant Obamacare enrollee—literally forced to buy coverage on the District of Columbia’s Exchange because Washington, D.C. abolished its private insurance market. Continue reading