Are Challenges To ACA’s Medicaid Reforms Founded In Constitutional Principles?

Jim Hufford

First published 6/15/11 on Organon

Read this in Belorussian here.

At oral arguments over the health reform law last week, the Eleventh Circuit panel showed a surprising amount of interest in the other constitutional challenge to the Affordable Care Act (ACA)—the states’ claim that the ACA’s Medicaid provisions are unconstitutionally coercive, effectively commandeering state governments into doing the federal government’s bidding. Brad Joondeph reviews the arguments presented by former Solicitor General Paul Clement on behalf of the states.

First there’s an argument from “sheer volume”: the enormity of federal Medicaid funding unconstitutionally tips the balance of federalism in favor of the feds. The difficulty with this argument is that, if the sheer volume of Medicaid makes new conditions on federal spending unconstitutionally coercive, then every new amendment that has increased states’ program costs in the past several decades must also have been unconstitutional.

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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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Paradox Glossed

Jim Hufford

First published 4/27/11 on Organon

I’ve always been a little unsure about the policy ramifications of regional variations in medical care. The Dartmouth Atlas project’s findings—famously noted in Atul Gawande’s New Yorkerpiece comparing health outcomes and utilization in McAllen and El Paso, Texas—suggest an inverse relationship between the amount of care provided and the quality of health outcomes resulting from that care.

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Private Insurance Is Public, Too

Jim Hufford

First published 4/14/11 on Organon

There are lots of ways to set up a system of health insurance. You can involve the government to varying degrees in regulation and payment, and to the extent that the government takes it upon itself to bear the population’s major health risks, you have a system of public insurance. To the extent you allocate risk through market mechanisms, you have a system of private insurance. But either way, at bottom the concept of insurance is about distributing risk through a population. That’s what gives insurance its social utility, and it’s the reason people buy insurance. And so in an abstract sense, all insurance is public insurance. It is people pooling money through premiums or taxes to cover their collective health risk.

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ACA Turns One

Jim Hufford

First published 3/23/11 on Organon

The good news is that it’s the Affordable Care Act’s first birthday. The bad news is that the ACA is sick and unloved, and its long-term prognosis is grim.

Nobody ever thought the ACA was perfect, and health reformers have by and large defended it on the grounds that it was a good start towards tackling the real problems in our healthcare system. Once the political storm surrounding the legislation subsided, the thinking went, we would be able to get down to the real, technocratic work of crafting evidence-based reforms that addressed the underlying crisis of escalating costs. As Don Taylor has written, we were “obviously wrong about that, and politically, the ACA remains toxic.”

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An Open Question


When Jonathan Cohn looks at the legal challenges to the ACA, he doesn’t see judicial restraint:

What bothers me (well, one of the things that bothers me) is that so many critics of the Affordable Care Act act as if it is the individual mandate itself, not their interpretation of the constitution, that represents a radical break with the past. I just don’t see that and neither, apparently, do a lot of other people who follow the law more closely than I do.

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Logical Bare Necessities


Originally published 2/7/11 on Organon

Andrew Koppelman at Balkinization calls Judge Vinson’s opinion a “bizarre collection of non sequiturs.” I’ve also noticed instances of the opposite: super-sequiturs—conclusions which logically follow from any premise whatsoever because they are necessarily true. Here’s one:

[T]he record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate.

(p. 66-67 of the opinion [pdf])(oomphasis added). I don’t know about the record, but the law of material equivalence strongly indicates that Vinson is right: if Congress had passed the ACAwithout the individual mandate, Congress would not have passed the ACA in its present form—with the individual mandate.

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Why Did The Administration Retreat On Advance Directives?


Originally published 1/17/11 on Organon

MeJust days after taking effect on Jan. 1, 2011, new Medicare regulations authorizing reimbursement to physicians for end-of-life care planning were retracted by the administration. Austin Frakt, pleading for someone to explain the “Medicare end-of-life planning flip-flop,” asks: “Did the Administration follow proper procedure or not?” The stated reason for the retraction was that the rule had been adopted without sufficient notice or opportunity to comment on the issue. I think the legal question, now moot of course, was a close call, but the administration was right to retract. There’s a fairly strong case that notice was inadequate and, therefore, that the rule was procedurally defective.

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