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Thread: Health Care Law

  1. #1
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    Health Care Law

    Supreme court will be hearing the case this coming week.
    In the meantime:

    FRI MAR 23, 2012 AT 02:30 PM PDT
    Health care anniversary: the Affordable Care Act begins its third year
    byJoan McCarter

    President Obama's signature on the Affordable Care Act
    The Affordable Care is two years old as of Friday, making it a good time to take stock of what it's done so far, and how its implementation is proceeding.
    Among the biggest accomplishments:

    Twenty million women have received preventive services like mammograms and Pap smears without having to pony up co-pays.
    Expand that to the whole population, and 54 million Americans got preventative services without copays, services that do save lives.
    More than 2.5 million young people have insurance, by being able to stay on their parents' plans until they are 26.
    Nearly four million seniors saved almost $2.16 billion through discounts for their prescription medications in 2011.
    The pre-existing insurance plan (PCIP) has extended insurance to 50,000 formerly uninsured and uninsurable people with pre-existing conditions.
    Actually, that last one is both an accomplishment and a disappointment. For those it has helped, like Marlys Lenz Cox, it has been a "life-line." But, largely because of state interference in some instances, as well as barriers of cost and a 6-month waiting period mandated by Congress in the law, the program has drastically underperformed expectations.

    Encouragingly, every state in the union but one are actively implementing laws and rules to make sure that insurance companies in their states provide preventative services without co-pays, and extend insurance to young people on their parents' plan. The one state that's not? Crazy Jan Brewer's Arizona.

    Implementation of the state exchanges, which will be law beginning in 2014, is less encouraging with nearly half of states either continuing to explore their options in creating exchanges (many waiting for the outcome of the Supreme Court challenge to the law) or doing nothing.

    Despite the states' resistance to begin setting up the exchanges pre-SCOTUS decision, the fact that 49 of them are actually implementing the market reforms expanding insurance coverage and preventative services without co-pays means that, at the very least, some of the provisions of the Affordable Care Act will remain in effect, even if the Court strikes down the individual mandate. Having implemented these popular programs, it will be very hard for states to backtrack.

  2. #2
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    The justices called on the lawyers for the White House and the Republicans to make the case that the Supreme Court has the requisite jurisdiction. Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy were less vocal than the liberal-leaning justices. Justice Clarence Thomas, as expected, did not speak.

    Notably, Roberts — who some court watchers believe may want to punt the ruling beyond an election year, to shield the Supreme Court from political attacks — only asked a handful of questions and did not seem to indicate that he believes the mandate is a tax.

    “It’s a command,” Roberts said at one point. “A mandate is a command.”
    Last edited by Havakasha; 03-26-2012 at 09:00 PM.

  3. #3
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    Wonkbook: Absolutely everything you need to know about health reform’s Supreme Court debut
    Posted by Ezra Klein at 06:49 AM ET, 03/26/2012

    Today's the day. The Supreme Court will begin hearing oral arguments as to the constitutionality of various provisions of the Affordable Care Act. Note that phrase: "Various provisions." The Supreme Court is not looking at the act as a whole. Rather, it’s considering four separate questions related to separate parts of the law. Here's my colleague Sarah Kliff with a primer of what they are, and why they matter. And after that, a special round-up of news, analysis, and opinion on the subject. And after that, your regularly scheduled Wonkbook:

    As joggers pass, David Lebam, center, and Lucas Feurst take a smoking break at the Supreme Court. They are from Sweden where there is universal heath care. Earlier in the day several religious groups rallied near the steps of the Supreme Court to express their opposition to President Obama’s health care plan. (Michael S. Williamson - WASHINGTON POST) On Monday morning, at 10 a.m., the Supreme Court of the United States will open oral arguments on the health reform law. The hearing will last six hours and stretch over three days, the longest arguments in 45 years.

    One reason these oral arguments will last so long has to do with the variety of the topics that the justices will address. The Court won’t consider the Affordable Care Act as one single issue, but rather has broken the case into four, separate issues. Here’s a Wonkblog guide to what those issues are, how each side will argue, when it happens, and why it matters. One quick programming note: While the Supreme Court’s arguments will not be broadcast live, C-Span has said it will make them available within a few hours of their conclusion each day here.

    Anti-Injunction Act

    What it is: The Court opens its oral arguments with a debate over whether it can even issue a ruling on the Affordable Care Act since its penalties for not carrying insurance have not come into effect yet. Under a law passed in 1867, the Anti-Injunction Act, a tax cannot be challenged until someone has actually had to pay it. Health reform’s penalties don’t start until 2015.

    What they’ll argue: One weird quirk of this provision is that neither the defendants or plaintiffs think it applies: Both sides think the Court should be able to rule right now . So the court appointed an outside lawyer, Robert Long, to argue on their behalf. Long will likely look to the Fourth Circuit Court of Appeals for precedent. It ruled, in September, that the Anti-Injunction Act prevented it from issuing a ruling on the health law.

    When it happens: Monday, March 26, 10-11:30 a.m.

    Why it matters: The Anti-Injunction Act gives the Supreme Court an opportunity to put off its decision for at least three years, potentially diffusing the law slightly as a 2012 election year issue. This could be a mixed-bag for health care supporters: On the one hand, it gives the law three more years to be implemented. On the other, it would still make the law’s fate seem uncertain, and likely extend the national debate around the Affordable Care Act.

    The individual mandate

    What it is: The most-contested part of the health reform law, the Affordable Care Act’s individual mandate requires nearly all Americans to carry health insurance. The legal question centers on whether such a regulation is permissible under the Commerce Clause, which allows the federal government to regulate interstate activity.

    What they’ll argue: Health reform opponents contend that the decision not to do something — namely, not buy health insurance — is economic inactivity, rather than activity, and therefore not a behavior the federal government can regulate. Health reform supporters argue that the decision to not purchase health insurance has an economic effect. An individual without coverage, for example, may not have the money to pay for an emergency room visit, sticking hospitals or taxpayers with the bill.

    When it happens: Tuesday, March 27, 10 a.m. - 12 p.m.

    Why it matters: With no penalty for not purchasing health insurance, but a requirement for insurers to accept anyone still standing, many expect the costs of insurance would skyrocket. Congress could, theoretically, replace the individual mandate with another policy that doesn’t run afoul of the activity-inactivity distinction but it is unlikely that congressional Republicans would permit such a fix, at least in the near term.


    What it is: The question of whether the health reform law can stand without the individual mandate — in legal parlance, whether the individual mandate is “severable” — is a pretty crucial one. The Supreme Court will hear arguments on if it could strike down that part of the law, while letting the rest of it stand.

    What they’ll argue: The Department of Justice says that if the court strikes down the mandate, it should also repeal the health reform law’s guaranteed issue provision, which requires insurers to accept all customers regardless of their health-care status. The argument there is that the mandate is so integral to making insurance work - by getting the healthy people to sign up - that, without it, insurance markets could no longer accept all applicants. Opponents of the law go even further. They contend that because of how the law was written - without a clause that specifically noted that individual provisions could be severable - that the whole thing should fall with the mandate.

    The Eleventh Circuit Court of Appeals came to an opposition conclusion: It overturned the mandate, but allowed the rest of the law to stand, even the parts that the Justice Department says should have fallen.

    When it happens: Wednesday, March 28, 10 - 11:30 a.m.
    Last edited by Havakasha; 03-26-2012 at 09:18 PM.

  4. #4
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    Why it matters: If the Court finds the individual mandate unconstitutional, then severability will become a key issue in determining how much of the law falls with it. It could decide that just the mandate falls, leaving the insurance industry with a pretty big challenge. Or it could rule that the mandated purchase of health insurance is so critical to the health reform law that if it goes down, it takes other key parts of the Affordable Care Act with it.

    Medicaid Expansion

    What it is: The health reform law expands Medicaid to cover everyone under 133 percent of the federal poverty line (about $14,000 for an individual) in 2014. Medicaid is run as a state-federal partnership and, right now, states are only required to cover specific demographics, groups like low-income, pregnant women and the blind or disabled.

    What they’ll argue: The states contend that this provision is too onerous: They’ll be responsible for footing part of the Medicaid expansion’s bill, and say they can’t afford the costs. The federal government, for its part, has centered its argument on the fact that states voluntarily participate in Medicaid. If they don’t like the new expansion, they could pull out of the program.

    When it happens: Wednesday, March 28, 1-2 p.m.

    Why it matters: Since states’ participation in Medicaid is voluntary, Supreme Court watchers widely expect the justices to find this part of the law constitutional. There is worry though, that if they were to strike down this part of the law, it could set sweeping new precedent for how state-federal partnership programs function.

    Wonkbook's SCOTUS Obamacare Primer

    Barnes previews: "The Supreme Court on Monday joins the nation’s vitriolic debate over the landmark health-care law and the limits of federal power. And though thousands of pages of legal arguments about the Constitution’s history and the court’s precedents have landed on justices’ desks, the outcome may also hinge on less tangible factors. Public opinion. The nation’s volatile political climate. The court’s self-consciousness about its own partisan divide. And the pivotal role it plays in deciding the nation’s thorniest social issues." Robert Barnes in The Washington Post.

    This may be one of the most important cases in history. "American constitutional history has not moved in a straight line, from the Founding to the 21st Century. Its development is a wavering line, with twists and turns that were far from predictable. The amendment process under Article V has followed a meandering path -- in fact, the latest amendment, the 27th, dealing with congressional salaries and ratified in 1992, was actually one of the first proposed, in 1789. Meandering, too, have been the Supreme Court’s interpretations of what the Constitution ultimately means -- for any given day and time...By week’s end, America will have witnessed -- for most people, from afar, because only a couple of hundred seats are available for those who will see it actually happen -- a deeply serious and probably quite revealing conversation about the Constitution and what it might mean 225 years after it was written." Lyle Denniston in SCOTUSblog.

    @chucktodd: This spin I'm hearing from both sides about how losing in Supreme Court on health care could be good for them politically I think is bunk

    @conncarroll: if Court strikes down Ocare, Romney has easy line to separate himself from Obama: "My law is constitutional. Yours was not."

    The story of how the legal challenge to Obamacare went mainstream. "When President Barack Obama signed the health care bill two years ago, the legal challenges to the law were widely belittled as long shots -- at best. But as the cases head to the Supreme Court this week, what looked to many like far-out legal arguments to undo 'Obamacare' don’t seem so zany anymore...Many legal scholars, including respected conservatives, pooh-poohed the idea that the courts might actually strike down the law or the individual mandate requiring most Americans to get health insurance or pay a fine. Yet on Monday, three days of oral arguments about the law begin at the high court -- the most time justices have devoted to a single law since 1966. The challengers’ journey from the near-fringe of legal thought to coming within striking distance of knocking out Obama’s signature legislative achievement has coupled an intense legal assault with a communications drive to convince elites and the public that the law violates the Constitution." Josh Gerstein in Politico.

    @BuzzFeedAndrew: Imagine a 2008 debate between Obama and Romney with Romney arguing for a mandate and Obama arguing against one. Parallel Universe.

  5. #5
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    MEET THE SOLICITORS: Donald Verrilli and Paul Clement.

    SYMPOSIUMS: The New York Times and The National Review.

    CHART: What happens if the individual mandate falls, in one chart.

    PROFILE: Meet Justice Anthony Kennedy, the Supreme Court's swing vote.

    Five myths about the health-care law: .

    Many lined up for a chance to attend the arguments. "Heading into the first of three days of Supreme Court arguments on Monday, the pavement occupied by the approximately 15 people in line Sunday morning was among the most coveted real estate in Washington. Tickets are scarce even for those connected to the case. And for everyone else, there’s the line. It started with two people who were in line by 9:30 a.m. on Friday, waiting to score one of at least 60 seats made available to the general public for each day of arguments, said Kathy Arberg, a Supreme Court spokeswoman...In Washington, anyone who wants to attend a judicial or Congressional hearing and can afford to spend $36 to $50 an hour can hire professional 'line standers' through companies like Washington Express to do the waiting for them., which had people waiting outside the court over the weekend, lets customers choose how early they want their surrogate to arrive, including an option labeled 'please put us at the front of the line.'" Emmarie Huetteman in The New York Times.

    GREENHOUSE: The legal question is clear. "Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you...The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there." Linda Greenhouse in the New York Times.

    SOMIN: The individual mandate is unconstitutional. "The federal government claims that this is a special case because everyone eventually uses health care. But this argument relies on shifting the focus from health insurance to health care. A similar ploy can justify any other mandate, including even the much-discussed 'broccoli purchase mandate.' Not everyone eats broccoli. But everyone surely participates in the market for food. Many also argue that health insurance is special because producers are sometimes required to give free services to the uninsured. But why is this fact relevant to Congress’ commerce power? The usual answer is that failure to purchase insurance thereby has adverse economic effects on producers. But any time someone fails to purchase any product, producer profits are lower than they would be otherwise. The government’s other justifications for the mandate are also essentially rationales for unlimited federal power." Ilya Somin in The New York Times.

    BLOOMBERG VIEW: Health care is not broccoli. "Here is where they invoke broccoli. If Congress can force me to buy health insurance, they ask -- and this analogy has actually appeared in a federal judicial opinion -- can’t it also force me to eat broccoli?
    In a word (or two): Yes and no. Congress could certainly pass a law requiring the consumption of broccoli. And the courts would certainly invalidate it. Without disputing the point that the Constitution grants the U.S. government only limited powers, it is easy to conclude that Congress is well within its authority to enact the individual mandate. Every American, by virtue of his or her existence, is a consumer of health care. The same, sadly, cannot be said for broccoli. Health care accounts for about 18 percent of the economy, and an even larger share of the federal budget. Hospitals and insurance companies and their affiliates operate and treat patients on a national scale and across state lines. Precise figures are unavailable, but broccoli’s role in the U.S. economy is considerably smaller." The editors at Bloomberg View .

    LITHWICK: This is about politics, not law. "The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument. So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments." Dahlia Lithwick in Slate .

    EMANUEL: Even if the Court strikes down the mandate, it won't be the end of health care reform. "What if the Supreme Court declares unconstitutional the Affordable Care Act’s requirement that everyone buy health insurance? What if it strikes down all the act’s insurance provisions, including the requirement that insurance companies cover everyone, regardless of pre-existing illnesses? Would this totally put an end to the health care reforms we have passed in the last three years? Absolutely not. The essence of the case the Supreme Court will begin hearing on Monday is whether, invoking its powers in the commerce clause of the Constitution, Congress can require individuals to purchase health insurance or pay a penalty. I believe the mandate is constitutional, but no matter how the court rules, many health care reforms that were approved by Congress through the Affordable Care Act and other recent bills -- like those to promote electronic health records, encourage coordinated care, reduce medical errors and cut costs -- will proceed." Ezekiel Emanuel in The New York Times.

    @sarahkliff: Even puppies want to hear SCOTUS argue health reform.

  6. #6
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    This may be one of the most important cases in history. "American constitutional history has not moved in a straight line, from the Founding to the 21st Century. Its development is a wavering line, with twists and turns that were far from predictable. The amendment process under Article V has followed a meandering path -- in fact, the latest amendment, the 27th, dealing with congressional salaries and ratified in 1992, was actually one of the first proposed, in 1789. Meandering, too, have been the Supreme Court’s interpretations of what the Constitution ultimately means -- for any given day and time...By week’s end, America will have witnessed -- for most people, from afar, because only a couple of hundred seats are available for those who will see it actually happen -- a deeply serious and probably quite revealing conversation about the Constitution and what it might mean 225 years after it was written." Lyle Denniston in SCOTUSblog.

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    Obama’s health law proving successful
    By Juan Williams - 03/26/12 05:00 AM ET
    Just in time for the two-year anniversary of the passage of the Patient Protection and Affordable Care Act, the Supreme Court will hear oral arguments on the law’s constitutionality this week.

    This is a political column. So let’s leave the litigation and questions of constitutionality to the lawyers.

    In my world of people and politics there are two relevant issues. First, does the law provide better medical care for Americans? And is it reducing the cost of healthcare?
    While the new law will not be fully implemented until 2014, the parts that have been enacted show that the indisputable, factual answer to both questions is “yes.” But at the moment, the facts do not seem to matter in the court of public opinion. Republican opposition remains as solid today as the day the act was signed into law.

    Overall, a March 11 Bloomberg poll found that 37 percent of Americans say it should be repealed, 46 percent want to wait to see how it works and 11 percent think it should be left just the way it is.

    The Wall Street Journal reported last week that 50.5 percent of all Americans oppose the law. That is almost exactly the same level of opposition as there was in 2010. One aspect of that opposition that needs to be highlighted is that more than 20 percent of Americans are opposed because they want the law to do more. Specifically, they want it to include a public option for insurance coverage to put more pressure on insurance companies to lower their rates and requirements for coverage.

  8. #8
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    Health-care provision at center of Supreme Court debate was a Republican idea

    By N.C. Aizenman, Monday, March 26, 6:41 PM

    As the Supreme Court moves Tuesday to the heart of the challenge to President Obama’s signature health-care law, there is a curious twist: The case largely rests on the constitutionality of a provision that originated deep in Republican circles.

    The individual insurance mandate, which requires virtually all Americans to obtain health coverage or pay a fine, was the brainchild of conservative economists and embraced by some of the nation’s most prominent Republicans for nearly two decades. Yet today many of those champions — including presidential hopefuls Mitt Romney and Newt Gingrich — are among the mandate’s most vocal critics.

    A guide to health-care law challenges by day:
    10 AM MONDAY | Is it premature for the Supreme Court to rule on the challenge to the law's insurance requirement? View details »
    10 AM TUESDAY | Is the law's insurance requirement constitutional? View details »
    10 AM WEDNESDAY | If the insurance requirement is ruled unconstitutional, should the rest of the health care law stand? View details »
    1 PM WEDNESDAY | Is the law's expansion of Medicaid to cover a greater share of the poor constitutional? View details »

    Meanwhile, even as Democratic stalwarts warmed to the idea in recent years, one of the last holdouts was the man whose political fate is now most closely intertwined with the mandate: President Obama.

    “The ironies to this story are endless and everywhere,” said John McDonough, a professor at the Harvard University School of Public Health who, as a Senate Democratic staffer, played a key role in drafting the law.

    The tale begins in the late 1980s, when conservative economists such as Mark Pauly, a professor at the University of Pennsylvania’s Wharton School of business, were searching for ways to counter liberal calls for government-sponsored universal health coverage.

    “We wanted to find an alternative that was more consistent with market-oriented economic ideas and would involve less government intervention,” Pauly said.

    His solution: a system of tax credits to ensure that all Americans could purchase at least bare-bones “catastrophic” coverage.

    Pauly then proposed a mandate requiring everyone to obtain this minimum coverage, thus guarding against free-riders: people who refuse to buy insurance and then, in a crisis, receive care whose costs are absorbed by hospitals, the government and other consumers.

    Heath policy analysts at the conservative Heritage Foundation, led by Stuart Butler, picked up the idea and began developing it for lawmakers in Congress.

    By 1993, when President Bill Clinton was readying his major health-care overhaul bill, the Heritage approach — subsidizing and facilitating the purchase of private health plans, while using the individual mandate to maximize participation — had gelled as the natural Republican alternative.

    Then-Sen. John H. Chafee (R-R.I.) formally proposed it in a bill that attracted 20 Republican co-sponsors; the bill foundered once Clinton’s effort unraveled. But the idea of the mandate gained currency in the ensuing years as Democrats chastened by the failure of the Clinton plan began considering new solutions more likely to attract bipartisan support.

    The Massachusetts plan

    That process came to a head in 2004 when Mitt Romney, then governor of Massachusetts, turned to then-Sen. Edward M. Kennedy (D-Mass.) for help adopting a health-care overhaul for the state that was largely based on providing residents with government subsidies to buy private insurance.

    The plan, signed into law in 2006, regulated insurance companies to a degree beyond anything Pauly had envisioned: For instance, they were barred from excluding or charging higher premiums to people with preexisting health conditions.

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    Irony at the Supreme Court
    First Read: "Yesterday's oral arguments were simply the opening act in the Supreme Court's consideration of President Obama's signature health-care law. But today's discussion -- over whether or not the individual mandate to purchase health insurance is constitutional -- is the main event. And there's plenty of irony (and even hypocrisy) on this issue. After all, it was then-candidate Barack Obama who railed against the individual mandate, which was supported by Hillary Clinton. What's more, the individual mandate was once a conservative-leaning idea (championed by the Heritage Foundation, Newt Gingrich and, yes, Mitt Romney)."

    "The final bit of irony: Only a small percentage of the public would even be subject to the individual mandate, if it's found to be constitutional. A new Urban Institute study finds, per Huffington Post, that 98% of Americans 'would either be exempt from the mandate -- because of employer coverage, public health insurance or low income -- or given subsidies to comply.' So there you have it, folks: The central issue before the Supreme Court was once opposed by Obama, supported by conservatives and Republicans, and won't even affect most Americans."

  10. #10
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    "If the government can do this, what is left? What else can it not do?" asked Scalia. "All bets are off," Roberts agreed.

    Supreme Court justices challenge Obama administration over health care law

    Liberals would love this to pass as they can then use the all powerful federal government to move their statist agenda forward agaisnt the will of the people.

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