The Administration Decides That Sooner Is Better

Roger Collier

First posted 9/28/11 on Health Care Reform Update

Hot on the heels of Monday’s news that the Obama administration had decided not to ask for a re-hearing of the Eleventh Circuit Court’s ruling that the individual mandate is unconstitutional, came today’s announcement that the Justice Department had asked the Supreme Court to hear the case.

Given that other Appeals Court decisions may also be forwarded to the Supreme Court, it is not certain which case or cases the Court will decide to hear. However, a request by the administration is almost sure to be granted.

While the rationale for the Justice Department decision cannot be known, it seems that the administration believes that it has a better than evens chance of prevailing.

The critical issue now is timing, with a hearing most likely in the spring, and a decision—in the middle of the presidential election campaign—in June 2012.

Plan B: If The Mandate Is Overturned

Roger Collier

First posted 9/12/11 on Health Care Reform Update

Kaiser Health News has an interesting piece in which it quotes the answers of six health care system “experts” to what happens if the Affordable Care Act’s individual mandate is found unconstitutional. (The GAO posed a similar question to a wider group earlier this year, and published its much more extensive findings in a February 25 letter to a Senate Appropriations subcommittee.)

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And What Happens If The Individual Mandate is Struck Down

Roger Collier

First posted 8/22/11 on Health Care Reform Update

An alarming article in looks at what could happen if the Supreme Court determines that the Affordable Care Act’s individual mandate provision is unconstitutional—something that the current conservative leaning of the Court seems to indicate is somewhat more likely than not.

Assuming that such a possible decision by the Court follows that of the Eleventh Circuit Court of Appeals in ruling that the mandate is unconstitutional but the remainder of the ACA may stand, the article anticipates some potentially disastrous consequences.

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Obama Administration Wins First ACA Appeals Round

Roger Collier

First posted 6/30/11 on Health Care Reform Update.

The first of three anticipated federal Courts of Appeals decisions on the constitutionality of the Affordable Care Act was handed down yesterday by a Sixth Circuit panel in Cincinnati—and it was a win for the Obama administration.

The three judge panel ruled two to one against an appeal by the conservative Thomas More Law Center of an earlier federal District Court finding that the ACA does not violate the Constitution. The ruling was especially notable as the first in which a Republican judicial appointee supported the constitutionality of the ACA’s individual mandate.
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The Appeals Court’s Decision

Allen Bradford

From the start, I have believed and have said, publicly and privately, that the U.S. Supreme Court’s eventual ruling on the constitutionality of the Affordable Care Act’s individual mandate could be forecast with an eye on political leanings at least as much as legal analyses.  Specifically, I have predicted that because 5 members of the 9 member Supreme Court were Republican appointees, it is more likely than not that the individual mandate would be nullified as an unconstitutional exercise of Congressional power.

The 6th Circuit U.S. Court of Appeals yesterday issued a decision that throws my presumption and therefore my prediction into serious doubt. Not only because 2 or the 3 Appellate judges upheld the individual mandate.  But because of the powerful concurring opinion written by Judge Jeffrey Sutton, a once controversial appointee of President George W. Bush.

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Another Day in Court for the Individual Mandate

Jonathan Cohn

First published 6/8/11 on Kaiser Health News

Opponents of the Affordable Care Act had another day in court on Wednesday, this time before federal judges in Georgia, representing the 11th Circuit Court of Appeals. These opponents want the judges to uphold a ruling, made by a lower federal judge in Florida, that the law is unconstitutional. It’s the third such appeal to go before a Circuit Court — and perhaps a prelude to consideration before the Supreme Court.

As you probably know, the primary focus of the plaintiffs in these lawsuits is the “individual mandate” — the requirement that all people with economic means contribute toward the cost of their health care by obtaining insurance or paying a tax penalty. The constitutional objections to this scheme are varied and complicated. But one argument by the plaintiffs deserves extra scrutiny, because it suggests the plaintiffs misunderstand health care policy, are misapplying a crucial court precedent, or some combination of the two.

The argument is about Article I, Section 8 of the Constitution, which empowers the federal government “to regulate commerce … among the several states.” The Commerce Clause, as it is known, is one of three constitutional provisions that the government has cited as justification for imposing the individual mandate. And its origins should be familiar to anybody with even rudimentary knowledge of American history. In the first years after independence, the country’s governing charter was the Articles of Confederation, in which state autonomy hindered security and hobbled prosperity.

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Another Legal Round – With A Major Mis-Step?

Roger Collier

First published 6/13/11 on Health Care Reform Update

The past week’s appellate court hearing in Atlanta on the constitutionality of the Affordable Care Act, one of a series along the inevitable road to the Supreme Court, showed that the opposing legal arguments are beginning to be firmly established—with each seeming to confuse the purchase of health insurance with the purchase of health care.

The Atlanta panel of three judges, with both Republican and Democratic appointees, heard arguments for and against the earlier ruling by Judge Roger Vinson in Pensacola that the individual mandate was unconstitutional and so central to the ACA that the entire act should be invalidated, and specifically that while the Commerce Clause of the Constitution gave the government authority to regulate interstate commerce, it did not allow Congress to penalize people for the “inactivity” of declining to buy a commercial product.

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Is the Mandate Penalty a Penalty?

Jim Hufford

First published 5/26/11 on Organon

Neal KatyalArguments for the constitutionality of the individual mandate as an exercise of the taxing power often start by noting that the penalty is reported on income tax returns, calculated as a percentage of income (with a flat minimum and a cap), and codified in the Internal Revenue Code. They go on to detail the ways the ACA’s penalty differs from typical penalties: there is no scienter requirement (one’s state of mind is irrelevant to assessment of the penalty); criminal punishments are not available to enforce payment; the amount of the penalty is reasonable, not exorbitant, and limited to the actual cost of qualifying coverage; and it is imposed in proportion to the frequency of noncompliance, month by month. These points have been fixtures of the United States’ briefs throughout the ACA litigation.

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GAO Report Outlines Alternatives To Individual Mandate

Merrill Goozner

First published 3/29/11 on Gooz News

Democratic Senator Ben Nelson of Nebraska, who faces a tough re-election battle in 2012, raised hackles among health care reform supporters in early February when he told Chris Matthews on MSNBC’s “Hardball” that “we need to find an alternative” to the individual mandate, which requires that the uninsured buy coverage once the state-based health insurance exchanges are up and running after 2014. With that mandate under legal assault by governors, state attorneys general and conservative activists at least 20 states, including Nebraska, it appeared the Blue Dog Democrat, who voted for reform, was moving to his right in an effort to shore up his electoral base.

See here.

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Wyden-Brown And The Health Law: A Match Made In Heaven Or Limbo?

John McDonough

First published 3/8/11 on Kaiser Health News

There is one certainty in the era of the new federal health law — nothing in U.S. health policy will ever be the same.

Every week events take place — regulations are issued, grants are awarded and provisions, such as the 1099 reporting requirement that raised revenue to pay for the measure, face congressional challenges. Each development marks one more step in the continuing transformation of the health system — changes now put in motion by the sweeping overhaul. In this vein, President Barack Obama’s surprise signal last week to governors that he was willing to give states some extra flexibility in implementing the law is particularly noteworthy because it offers a useful window into the health law’s evolving politics and the future bargaining that will likely take place.

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The Individual Mandate: Another Look At The Penalty Trade-Off

Roger Collier
First published 2/16/11 on Health Care Reform Update
Most of the recent attention on the 2010 health care reform legislation has focused on the individual mandate. After two federal court rulings upholding the mandate, a third federal judge—in Virginia—ruled that the Constitution does not allow the government to require the purchase of insurance as part of regulating an interstate commerce market. Simultaneously, Congressional Republicans have reiterated their intention of preventing the individual mandate from being implemented, regardless of the constitutionality of the provision.

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Is The Individual Mandate Really A Lynchpin In The New Health Law?


Originally published here on 12/15 on Kaiser Health News.

If the Supreme Court does rule the individual mandate unconstitutional will it really bring down the whole law?

I don’t see it.

Continue reading “Is The Individual Mandate Really A Lynchpin In The New Health Law?”