Health care

Adams’ Congress Would Have Passed the Affordable Care Act

And Chief Justice Marshall’s Court would have sustained it.

Last week, Forbes “discovered” the Act for the Relief of Sick and Disabled Seamen, 1 Stat 605 (1798) (pdf). Scare quotes because, Eugene Volokh’s blog beat them to it by about eight months, but the comparative circulation being what it is, the Act, which demonstrates originalist support for the notion of “socialized medicine,” has only gained prominence now.

The Act originated what would become the first federally-managed health care system, for marine workers and longshoremen, and funded it by an employer mandate, by which ship captains would find their vessels unable to leave port, unless their employees were documented, and the exaction paid on each. The system also originated a corps of doctors and health administrators under the supervision of the President — which is to say, the Executive Branch — creating America’s first substantial health bureaucracy, and thereby, our very first “death panels.” All together, powerful proof that the Founders intended their new government to be capable of taxing and spending, under the Commerce Clause, for the care of its citizens.

Careful readers will note several points of distinction. First, the care of seamen and longshoremen falls within a narrower definition of Congress’ Commerce Clause powers than, say, health care writ large. But the modern Commerce Clause adequately supports the regulation of the insurance industry, making this, at least, a non-starter. And second, the Act contains no individual mandate, which is, after all, what all the fuss is about. But the presence of an employer mandate, approved by the very men who wrote the Constitution, shows a willingness to deploy the commerce power in a tax-like, socially coercive manner. And for the narrow goal of improving the well-being of the merchant marine, no individual mandate was needed, since a seaman only encounters his profession’s perils through his employer.

There is nothing new in today’s health care debate: neither the problems nor the solutions were beyond the imagination of the founding generation. Removing the perception of novelty that surrounds the individual mandate is half the battle, both with the public and the courts; and this Act is adequate to that challenge.

Taking the New Property Too Far: Frivolous Arguments Against ACA Repeal

A rare moment of constitutional accuracy from conservative pundits, and absurd legal arguments from a Democratic congresswoman, arguing that the quixotic repeal of the Affordable Care Act, if it ever materialized, would be unconstitutional for effecting a taking of entitlement rights:

The Fifth Amendment speaks specifically to denying someone their life and liberty without due process. That is what H.R. 2 does and I rise in opposition to it. And I rise in opposition because it is important that we preserve lives and we recognize that 40 million-plus are uninsured.

That’s… way wrong. Although entitlement programs do vest their recipients with a quasiproperty right in their continuance, such that the denial of an entitlement right (say, a Social Security check) without notice and a hearing does violate the Fifth Amendment’s due process clause, it’s settled law that the extinguishment of a statutory right by way of a law of general application is not a taking (subject to external limits, like the Bill of Attainder clause). The contrary conclusion resulted in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), which held the repeal of land sale act unconstitutional, only because of one of those external limits attached. Namely, the Contract Clause. Otherwise, the general rule applies:

The principle asserted is, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted.

Fletcher, 10 U.S. (6 Cranch) at 135. We should vigilantly police pretensions to constitutionalism, on both sides of the aisle. Because Congresswoman Lee is so clearly wrong, but in an interesting way, this instance especially is worth note.

That said, the comments to the post are hilariously, and predictably, racist.

“ObamaCare” Already Working

No further commentary needed, but don’t miss Forbes’ — yes, Forbes! — coverage of the jump in small business insurance coverage:

Private market insurance companies are experiencing significant growth because of a tax break provided by the PPACA. I may have missed the day this was discussed in economics class, but I’m pretty sure this is not a socialistic result of federal legislation.

When data like this appears, we have the opportunity to really find out who is talking smack for political benefit and who actually cares about getting affordable and available health care to America’s workers. Certainly, there will be elements of the new law that will not work out exactly as planned. That’s simply reality when it comes to any new piece of landmark legislation. But if you cannot celebrate what appears to be an important early success, you really should give some thought as to where your true interests and intents lie.

If you’re all about beating up on President Obama, you can conveniently forget this bit of data as if it never really happened. However, if your interest is to make health care available to more Americans, this should be a happy day for you – no matter what your ideological beliefs.

Of course, good policy is just step one. Step two is keying the politics of this issue to results, rather than to rhetoric.

Well, That Didn’t Take Long: NRO Spins GOP’s Deficit Increase Plan

Daniel Foster for the National Review Online spins the news that the “Obamacare” repeal would cost in excess of $200 billion (CBO preliminaries place it at -$770b, +$540b):

Reduction in revenue is reduction in the “size of government,” even when not met with concomitant spending cuts, in blatant violation of several promises. Brilliant spin, terrible policies, lies all the way down. Ladies and gentlemen, your Republican Party.

Health Care Repeal Docketed: Why?

We’re one day from the opening of the new Congress, with its Republican-dominated lower House, and Boehner’s caucus has already docketed a January 12th vote on a resolution supporting the repeal of the President’s key healthcare reform bill. Don’t miss the official, campy title: ”Instructing certain committees to report legislation replacing the job-killing health care law.” How many unrelated, unexplained negative descriptors can you fit into a title?

As Senate Democrats have pointed out, the repeal push could not possibly be more of a waste of time. Repeal would not net even a majority in the upper house, and even if it did, the President’s veto still remains. There’s something to be said for letting your constituents know where you stand, but Republicans have saturated the airwaves with endless lies about the reform act for months. Who could possibly benefit, or learn something, from the vote? Already, we’re facing political theater at its worst.

The repeal resolution’s text also manages to highlight the most painful irony of the entire health care debate: Republicans don’t even dislike the Act. They just think they do. Here, the House would direct committees to report out drafts to “repeal-and-replace,” provided the replacement bill would (among other goals),

(3) preserve a patient’s ability to keep his or her health plan if he or she likes it;

(4) provide people with pre-existing conditions access to affordable health coverage;

(9) expand incentives to encourage personal responsibility for health care coverage and costs;

(12) do not accelerate the insolvency of entitlement programs or increase the tax burden on Americans.

All of which, of course, is accomplished under the current Act.

I for one can’t wait to see the Republican drafts. Lord knows it’ll be the first time they’ve put policy on the table since early 2008: from the uninspired writing in this resolution, I guess the bill drafters are out of practice. In the meantime, the clock is ticking: once the American people, with gentle reminders from our side, notice the parts of the reform act already in place, repeal will die, and so will Republican support among seniors.

The Limits of the Commerce Clause: What’s at Stake?

For such a simple question, the answer seems to elude more than a few. Megan McArdle:

On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?

This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck.  And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system.  If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers.  I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.

Emphasis ours. On the contrary, the question is intensely interesting to progressives, and the answer not as terrifying as you’d think. A libertarian friend of mine — brilliant guy, excellent lawyer — posed the question to me more directly, and the answer, I think, is probative of the limits Megan misses. His question: if the government can force you to buy insurance, can it force you to buy a book? Say, Going Rogue? (That little detail is his personal touch to the hypothetical. Haha.)

No. If constitutional, the individual mandate doesn’t read the Commerce Clause to permit Congress to direct consumer decisions: it reads the Clause to permit Congress to direct consumer decisions, where necessary (1) as an incident (2) to uphold a larger regulatory framework (3) already under congressional authority. Insurance is a regulated market, and so, I guess, is the book business; but the relationship between bookseller and reader is not subject to meaningful congressional scrutiny. On the other hand, the relationship between insurer and insured is.

Admittedly, this is a doctrine that could grow to consume everything around it. Like some kind of… well… malevolent goldfish? Yes, let’s go with that. But it’s also the way things are, and the way things have been for some time. The more important question to ask is, if the individual mandate is unconstitutional… what else is, too? Medicare?

The Central Error in Judge Hudson’s Ruling

Right-wing delight over Judge Henry Hudson’s (E.D.-Va.) ruling, holding unconstitutional the “individual mandate” provision of the Patient Protection & Affordable Care Act (pdf), ought to be short-lived. Aside from the obvious point that the Act is now only 2 for 3, Judge Hudson’s ruling is at odds with applicable law and ought to be reversed. In fact, higher courts will have no choice but to do just that.

Ken Cuccinelli’s case proceeded on the simple theory that Congress may regulate commercial action, but not commercial inaction. The latter, the theory goes, is non-economic activity, social behavior, of the sort held non-regulable in Lopez and Morrison.

This analysis is flawed. First, if we buy the action/inaction distinction, Lopez and Morrison are inapposite. These cases do not discuss how much or how little economic participation is required to make such conduct regulable; rather, they hold that non-economic activity with secondary economic effects is non-regulable. This doctrinal line is interesting, and favors conservatives, but does nothing to answer the question of how much, or how little, economic participation is required before Congress may intervene.

That question is answered squarely by the Raich and Wickard cases. In both, defendants sought to avoid the interstate commercial network, and thereby avoid congressional regulation, by containing their conduct within state borders. In Raich, defendants sought to avoid the ban on the sale of medicinal marijuana by selling it only within state borders; in Wickard, the defendants tried to avoid laws governing the production of wheat, by growing wheat only for home use. In both cases, the defendants’ intra-state commerce was held regulable for its effects on inter-state commerce.

Judge Hudson distinguishes the cases by noting that, in both, the defendants engaged in affirmative acts (page 21 of the PDF opinion):

In Wickard and Gonzales, the Supreme Court staked out the outer boundaries of Commerce Clause power. In both cases, the activity under review was the product of a self-directed affirmative move to cultivate and consume wheat or marijuana. This self-initialed change of position voluntarily placed the subject within the stream of commerce. Absent that step, governmental regulation could have been avoided.

This action/inaction distinct, however, is illusory, because Judge Hudson is looking at the wrong type of action. The cases do not take intra-state activity and generalize its effects. Rather, the rule in Raich and Wickard is that a decision with implications on interstate commerce is regulable, even if it results in no affirmative interstate act. Intrastate action or inaction is strictly irrelevant. All that matters is the decision to not participate in interstate commerce.

Appellate courts should be sensitive to the distinction; and in any event, the likelihood that the Supreme Court will strike down a major, economically based, controversial piece of legislation, something they haven’t done in seventy years, is slim. But depending on how risk averse we are, we could, and probably should, look at ways to retool the legislation, and thus moot the debate. One option is the state-by-state opt-out being debated by Congress, whereby, if a state has similar provisions for quality care, citizens may avoid the mandate. Other creative solutions exist. One judge’s decision will not be the end of this Act.

Simplifying Healthcare Litigation: a Syllogism and a Question

On Tuesday, Judge Norman Moon of the Western District of Virginia delivered the most recent rebuke to the dozens of private actors and states seeking to roll back President Obama’s seminal Patient Protection & Affordable Care Act. Judge Moon’s opinion (pdf/discussion) is also a model of simplicity, which cuts through the sillier arguments leveled by both sides (e.g., the Obama administration’s ripeness argument is unsurprising, but so is its failure to convince any judge to date), to get to, and summarily dispose of, the heart of the matter.

We can reduce the central argument in the healthcare lawsuits to, as noted above, one syllogism and one follow-up question. First the syllogism.

1. Congress may regulate economic activity by the Commerce Clause; but it may not regulate social policy with incidental economic effects.
2. Insurance is an economic activity with incidental social ramifications.
3. Therefore its regulation lies squarely within Congress’ power.

Objections to the Act premised on the Lopez/Morrison/Raich line, which together animate the first point, border on the frivolous. As Judge Moon notes, Congress correctly asserts, in the statute, that it has held the power to regulate the insurance industry, unchallenged, for more than sixty years.

Opponents of healthcare reform find their best argument when pushing on the second point, to ask whether the regulation of an omission with economic ramifications is so unique as to take us out of this familiar framework. Although plaintiffs will correctly point out that the regulation of inactivity is novel in Commerce Clause jurisprudence, the activity/inactivity distinction, which did not persuade Judge Moon, is not one likely to persuade other federal judges either, for the simple reason that the law regularly treats omissions as affirmative acts. In the law of securities and torts, just to name a few, it is recognized that conscious omissions carry consequences. Since Congress is allowed to (and should) recognize economic realities, Judge Moon’s handling of the case is what we should continue to expect.

Stinging Judicial Rebuke of the Day

Judge Vinson (N.D. Fla.), a Reagan appointee who in 1985 sentenced three serial abortion clinic bombers to ten years, to be eligible for parole “as soon as possible,” threw a piece of red meat to conservative voters yesterday, by denying the government’s motion to dismiss Florida’s doomed-to-fail, quixotic, wasteful suit to enjoin the Affordable Care Act. Unfortunately, Vinson also does seem to be siding with plaintiffs, at least on the merits. This means that we’re likely headed for a trial loss, and a nasty appellate fight before the unpredictable Eleventh Circuit.

Unless, of course, Dan Gelber reverses his opponent’s narrow lead to become the next Florida AG, and voluntarily dismisses the suit.

Let’s assume that won’t happen. One remarkable point in Judge Vinson’s ruling upbraids the government for claiming, in the political sector, that the individual mandate isn’t a tax, while litigating on the basis that it is one. Apparently this is bad form:

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.

That’s a curious thing to say. It’s fairly common for legal terms to have one meaning in debate, and another, technical meaning in litigation. Democrats were quite right that the mandate isn’t a “tax on the middle class,” but they’re also right that it fits the legal definition of a tax, and should be treated as such. Even if Vinson disagrees, the disconnect between terminology isn’t deliberate mendacity. It’s a product of the peculiar meanings terms acquire at law.

Perhaps more importantly, especially if one believes in strict separation (as Republicans purport to), judges shouldn’t be in the business of questioning legislators’ motives, except in the civil rights context. This was the Republican response to Judge Walker’s exegesis of the motives behind Prop. 8 (although governing law required that type of analysis, in that case).

Lewis Carroll, by the way, is a regular go-to for annoyed jurists.

The Commerce Clause & Desegregation

Unless you’ve been living on the moon, under a rock, with your eyes shut and your fingers in your ears, you’ll have heard that conservative activists nationwide have sued the government to enjoin, and therefore destroy, the carefully-balanced and carefully-wrought Affordable Care Act. As it turns out, judicial activism is more about result than process: who would’ve thought?!

They’re not doing so hot. The first suit was tossed out last Thursday. We can expect many more such dismissals to follow. Still, even if the constitutionality question is one that the Courts are quite equipped to handle, conservatives like to tease those of our ideological brethren who can’t quite explain why the Act is or should be constitutional. Truly, that’s kind of unfair. Tea partiers can quote constitutional chapter and verse, but that’s rather an empty talent, set against their patent inability to understand what they’re saying, or conceptualize the document as something more than a way of enshrining a foregone, glorious past that never was. We might compare your average amateur constitutional scholar cum tea partier to a particularly smart parrot, with a particularly media-savvy owner.

Unfortunately, sometimes, that last bit is all that matters. Which is why it’s worth noting that Rep. Schakowsky (D-Ill.) was right when she drew an analogy between the Congress’ power to regulate healthcare, and its ability to mandate desegregation. The Supreme Court has previously commented, in dicta, that desegregation would be sustainable under the Enforcement Clause of the Fourteenth Amendment (the Thirteenth and Fifteenth have their own clauses, but are inapposite). But it has previously held that Congress could end mandatory desegregation, separately and independently, on the basis of the Commerce Clause, in any public establishment that engages, even loosely, in interstate commerce. Take a Georgia restaurant that ships in lettuce to make its patented Jeff Davis-burgers. The lettuce is from Alabama, you say? Boom, regulable.

Admittedly, this is a bit of a stretch, and the result probably only obtains because desegregation occupies a very unique place in American law. The rules bent to accommodate a very necessary result. Healthcare is actually a much easier call. Unlike desegregation, the Act is aimed squarely, not indirectly, at the regulation of economic behavior. But if Schakowsky was looking for an example of just how broadly the Commerce Clause runs, she could hardly have picked a better one.