The Health Care Mandate - Waiting For The Shoe To Drop In Florida

The Times braces its readership for the next blow to ObamaCare and the controversial mandate:

Judge Hints He May Rule Against Health Law
By KEVIN SACK

PENSACOLA, Fla. — A federal judge asserted on Thursday that it would be “a giant leap” for the Supreme Court to accept the Obama administration’s defense of a central provision of the new health care law, suggesting he may become the second judge to strike it down as unconstitutional.

In a three-hour hearing, the judge, Roger Vinson of Federal District Court, said the law’s requirement that most Americans obtain insurance, a provision that takes effect in 2014, would constitute “a giant expansion” of the court’s traditional application of the Commerce Clause of the Constitution.

“People have always exercised the freedom to choose whether to buy or not buy a commercial product,” the judge said, noting that he had been uninsured and paid out of pocket when his first son was born.

They duly note that Judge Vinson is a Reagan appointee.

I do like this compelling government argument:

Ian H. Gershengorn, a deputy assistant attorney general who is defending the law, told Judge Vinson that the health care market was unique because getting sick was both unpredictable and potentially bankrupting. The economic consequences of not having insurance — including cost-shifting to others — justify its regulation by Congress, he said.

Uh huh.  Which is why we have a Federal mandate obliging the purchase of fire insurance, since losing one's home can be financially devastating and result in cost-shifting.  Oh, wait - you mean we don't?  Whatever.  Maybe I misunderstood the word "unique". 

But let's soldier on - having a heart atack can be unpredictable, financially devastating (not to mention fatal), and can result in cost shifting.  Hence the Federal mandate for eating vegetabes and exercising regularly.  Similarly, getting AIDS by way of unprotected sex can be unpredictable and devastating, which explains the Federal mandate for condoms.  OK, I can quit anytime...

Well.  Since lightning already struck in Virginia, thereby shifting the range of the comprehensible and respectable, I will be surprised if this judge does not stike down the mandate.  Here is what seems to be up for grabs:

Judge Vinson, a senior judge appointed by President Ronald Reagan, has seemed somewhat more receptive than Judge Hudson to the states’ argument that the entire health care law should fall if the insurance mandate is unconstitutional. He said the act was analogous to a watch with interlocking and interdependent wheels.

“It’s also been compared to a Rube Goldberg invention,” he remarked.

Judge Vinson said he would rule “as quickly as possible.”

In kinda sorta doesn't matter what this judge decides, since eventually the Supreme Court will take this up.  However, the wider the boundaries drawn by the various appeals court the greater the maneuvering room for the Supremes.

Comments

[Tarzan, Man of the Chimpanzees.]

Suspense grips nation.
Malaise meanders the herd.
Judicial immune.
=========

[No, not Blake. He just left on the train.]

Ladykillers.
======

[NK]

A senior district court judge invalidating the mandate would be a wonderful christmas gift to the counry. personally, I hope he shows judicial modesty by not invalidating the entire law, and limiting his constitutional review to the constitutional issue and not the political isssue of what to do without the mandate.

[I R A Darth Aggie]

OK, I can quit anytime...

That's what addicts say...

[Clarice]

I liked the judge;s reminder that the govt's argument would justify a law requiring we eat broccoli.

[Danube of Thought]

NK, I think the legal question of what to do with the rest of the law if he strikes the mandate is properly before him (the severability issue), but it won't surprise me if he exercises a very cautious restraint and doesn't rule on it.

I read elsewhere that he expressed some uncertainty about how to unscramble this omelette that is already partly cooked.

Hell, just do it.

[Army of Davids]

Friends of Angelo

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Gregg Ayres: Fannie Mae Customer Acct Manager
Jeffrey Baker: Fannie Mae Business Analyst
Ingrid Beckles: Freddie Mac VP Default Mgmt
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Sharon Canavan: Fannie Mae Govt Relations/Lobbyist
Delynn Conley: Fannie Mae Underwriter
Carla Corpuz: Fannie Mae Senior Underwriter
Tanguy De Carbonnieres: Fannie Mae Legal Counsel
Bernard Deane: Fannie Mae Director
Mollie Dougherty: Fannie Mae Sr Business Manager
Roy Downey: Fannie Mae Director
Cynthia Fatica: Fannie Mae Legal Counsel
Jamie Gorelick: Fannie Mae Vice Chair
Lizbeth Grant: Fannie Mae Director Tec/Secondary Mkt
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Alan Quirion: Freddie Mac Director
John Radwanski: Freddie Mac Sr Port Direc
Franklin Raines: Fannie Mae Chairman and CEO
Robin Ramsay: Fannie Mae Customer Acct Manager
Rebecca Rosena: Fannie Mae Credit Risk manager
Irwin Rosenstein: Fannie Mae Ass. General Counsel
Robert Sanborn: Fannie Mae Vice President
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David Yoon: Fannie Mae Acct Associate
[edit]

[Danube of Thought]

This is from the WSJ:

Judge Vinson likened the law to a clock when taking one wheel away would prevent the whole from functioning. But he also acknowledged that peeling back certain pieces of the law would be tricky. Already in effect, he said, is a provision of that law that gives nursing mothers lactation areas inside the workplace. "How can you possibly undo some of these things?" he asked.

The article is here.

[NK]

DOT-- I am aware of severability clauses in contracts and statutes, in fact I routinely litigate them. The law is the law, but in constitutional matters, I personaly believe the courts should use prudent restraint and only invalidate unconstitutional elements. My personal take on unscrambled eggs? let Congress figure that out; they are elected and accountable to voters, a lifetime senior judge is the least democratic part of the system.

[Steve C.]

I would not be surprised if Judge Vinson adopted the same limited view as Judge Hudson. Whether or not the health care law stands or falls based on the mandate is a question for Congress and the President to resolve. It's a policy question, not a legal question.

My own humble opinion is that the Supreme Court is more likely to strike down the mandate than not. As a practical matter, the reading of the Commerce Clause is tendentious at best. Do the justices on today's court really want to set a precedent that empowers the government to be the ultimate micromanager? Liberals might say it's necessary and proper to require people to buy health insurance. What will conservatives define as necessary and proper under a Palin administration?

As has been amply demonstrated, the Supreme Court can be just as dull as the average former Senator elected to the Presidency. While I would be inclined to bet on them throwing out the mandate, I would not depend on them as the ultimate defense of my freedom. For that I'll look to my fellow citizens who have more to lose than 9 people in black robes with lifetime employment and guaranteed pensions.

[Lenny Q]

The Libs would love the mandated insurance to be dropped, but the rest of the law to remain. Then insurance companies will still be forced to insure pre-existing conditions with no new policies on the healthy to offset it. The insurance companies will go bankrupt and the government can takeover the entire health care industry. Or they can raise taxes to fund the uninsured.

[Charlie (Colorado)]

But let's soldier on - having a heart atack can be unpredictable, financially devastating (not to mention fatal), and can result in cost shifting. Hence the Federal mandate for eating vegetabes and exercising regularly. Similarly, getting AIDS by way of unprotected sex can be unpredictable and devastating, which explains the Federal mandate for condoms. OK, I can quit anytime...

Ah. The question is, can they?

[NK]

Lenny Q.-- the regulatory mandates are what drive insurance companies out of business. The insurance mandate won't generate revenue for insurance companies because the penalty is set so low, 20 somethings will pay the penalty instead. The whole law is a scam to make the federal government the single-payer.

SteveC-- with stevens retired ginsburg is now the official old fool of the court, she'll vote for any statist nonsense; ditto for the 2 obama nitwits, the 'wise latina' and the bookworm. Breyer, may be thoughtful enough to join kennedy and invalidate this odious mandate.

[Jane (sit on the couch or save your country)]

Just as long as Kagen recuses herself...

[anduril]

Oh my, this is fun: What does it take to get a Wine Spectator Award of Excellence?

My name is Robin Goldstein, and I’m the author of a new book called The Wine Trials (book here; website here). Lately, I’ve become curious about how Wine Spectator magazine determines its Awards of Excellence for the world’s best wine restaurants.

As part of the research for an academic paper I’m currently working on about standards for wine awards, I submitted an application for a Wine Spectator Award of Excellence. I named the restaurant “Osteria L’Intrepido” (a play on the name of a restaurant guide series that I founded, Fearless Critic). I submitted the fee ($250), a cover letter, a copy of the restaurant’s menu (a fun amalgamation of somewhat bumbling nouvelle-Italian recipes), and a wine list.

In order to make the application appear genuine, I also obtained a Milan phone/fax number, as required by the application, and established a small online presence. Aside from creating the menu and wine list, all of this took less than three hours.

Osteria L’Intrepido won the Award of Excellence, as published in print in the August 2008 issue of Wine Spectator.

...

[narciso]

They had that crony and hack (they are not mutually exclusive) Jonathan Gruber of MIT, arguing the government line on the Minitrue
bulletin,

[Clarice]

Steve, as I recall Hudson did not strike down the entire law but he said more than the mandate was unconstitutional-all the provisions related to insurance would have to go as well. He didn't issue such an injunction because the govt agreed to stay those provisions pending a final resolution of the case; he didn't proceed to consider the other provisions because he said there were 400 of them most of which were not argued in the sumarry judgment proceeding in his court.

I expect the more broadly litigated case before Judge Vinson may clarify what else has to go if the mandate does.

Ginsberg certainly is the leftist judge but she's also good on business matters. Perhaps the round about effort to destroy the insurance industry will catch her eye.

[PaulY]

Hudson amd Vinson are quality judges and their opinions will have more impact than say a hack from say the 9th circuit

[Danube of Thought]

The law is the law, but in constitutional matters, I personaly believe the courts should use prudent restraint and only invalidate unconstitutional elements.

The mandate question is plainly a constitutional issue, but the fact that severability is not a constitutional question certainly doesn't mean that it's not properly decided by the courts. I tend to be result-oriented in this instance, and think the better course would be to put a stop to the whole thing. Again, I wouldn't be surprised if Vinson (or any other judge) declined to do so.

[NK]

DOT-- severability is completely within the court's jurisdiction to decide. my only point is it is better for the court to use prudent restraint and not overturn congressional acts that are not constitutionally invalid. no one can claim to be absolutely right here, it's philosophical question, but a real question. let's se what judge vinson does.

[Ignatz]

In an earlier, less addlepated, more lawful time, this entire overreaching odious law would have been laughed out of court in its entirety and never even have been conceived in congress to begin with.
Now we count ourselves lucky if a judge tells us our chains should only shackle our ankles and wrists, but our necks can remain free for the time being.

[Clarice]

In an earlier, less addlepated time most of Congress and a far larger portion of the population actually knew what was in the Constitution.

[Danube of Thought]

I'm with you, NK. I think our philosophies on this general subject are identical. But this is an instance where if my view was not followed it would not break my heart.

[NK]

DOT-- ah you are a Scalia/Roberts judicial conservative, I am more Thomas/Alito judicial conservative. The difference? Scalia/Roberts will put their thumb on the scales of constitutional justice when necessary to get the right result. Thomas/Alito have more philosphical discipline.

[mikey]

I often hear the argument, as stated above , that liberals want the mandate to be deemed unconstitutional so the insurance would go bankrupt leading the for a single-payer system. Isn't more likely that public outrage would lead to a collapse of Obamacare and a replacement with a market oriented system. What congress is going a pass a law instituting a single payer system when this congress couldn't pass a public option?

[Cecil Turner]

Well, if the decider is who appointed 'em, this case is easy. Scalia, Kennedy, Thomas, Roberts, and Alito will say it's unconstitutional, so it is.

[jimmyk]

I blogged the point I was raising the other day about this, at AT. The editor changed the title, though. I don't think it's "inevitable"; it's something to be on guard against.

[cathyf]

I am rather intrigued by the WH's statement earlier in the week explaining the the mandate was crucial to law's functioning. Are they setting the groundwork for a bipartisan repeal of the law? The argument "we tried to reform the system, but the courts broke the reform; we have to repeal the whole thing and start over" would put the democrats on the same side as the voters on this thing.

These guys are mostly politicians not ideologues -- who wants to go down in flames defending a half-crippled law?

[Clarice]

Jimmy and Cathy, both interesting points.

I think the Republicans already have a plan to repeal it and replace it with a simple bill that addresses some concerns like a high risk insurance pool and tort reform.

[Danube of Thought]

JimmyK, all of what you said at AT is possible for a congress to do, and always has been. But I think it's going to be a month of Sundays (or thousands of business days) before any congress does it, particularly in the lingering stench of this brewing fiasco.

[centralcal]

AT work and unable to keep up with all the threads here today, but this is just fabulous:

The food safety bill is almost certainly dead. Why? Don’t blame it on GOP obstructionism — while Sen. Tom Coburn (R., Okla.) robustly opposed the bill, citing its unpaid for $1.4 billion price tag, and its new (and ineffective, he argued) regulations, that didn’t stop plenty of Republican senators from backing it.

Instead, it’s because Senate majority leader Harry Reid forgot about that pesky constitutional requirement that all taxes originate in the House.

Here’s the background: the Food Safety bill passed the House in 2009. It had stalled in the Senate, to many Democrats’ dismay, and so Reid spent valuable days during the Lame Duck session on debating and voting on the bill. In the end, the bill passed by a comfortable margin, 73 to 25. The White House issued a jubilant statement and urged the House to act quickly to reconcile the Senate and House versions.

And then they discovered that because the Senate bill raised revenues it was unconstitutional. So, the solution became to pass a constitutional food safety bill — as part of the omnibus spending bill.

Since that failed last night, it looks like the food safety legislation is dead. While Democrats are hoping to include the legislation in the continuing resolution, a GOP senate aide told The Hill that won’t be happening.

source: The Corner/National Review Online

[jimmyk]

it's going to be a month of Sundays (or thousands of business days) before any congress does it

I agree, that's why I said 10 or 20 years. Hillary crashed and burned in '93, and we thought we'd killed the monster once and for all, and 17 years later it woke up from its coma.

[Lenny Q]

"the regulatory mandates are what drive insurance companies out of business. The insurance mandate won't generate revenue for insurance companies because the penalty is set so low..."

What? The insurance company lobbied to get the bill passed. As long as the government has a blank check, mandate or not, Obamacare will go forward unless the entire bill is tossed either by repeal or the courts.

On a side note, looks like Dream act will be debated tomorrow and passed no later than Monday. Now that's a lot of new unhealthy folks that will be going on Obamacare.

[peter]

I agree, that's why I said 10 or 20 years. Hillary crashed and burned in '93, and we thought we'd killed the monster once and for all, and 17 years later it woke up from its coma.

With commies, they never give up. The long march, you know.

[Specter]

WOW...BO thanked the Republicans before he thanked his own party at the signing of the tax bill...

[Danube of Thought]

Are we all certain that congress has the power to compel insurance companies to insure people against events that have already occurred?

[cathyf]

What? The insurance company lobbied to get the bill passed. As long as the government has a blank check, mandate or not, Obamacare will go forward unless the entire bill is tossed either by repeal or the courts.

Yeah, don't look to the insurance companies to point out that the bill makes it impossible for insurance to exist as a product. They would WAY prefer the fat happy life of administering the government's single payer system as contractors over the hardscrabble existence of selling insurance in a competitive market. They won't even mind being called "insurance" companies even when there is no insurance product left in anything that they do.

Kind of like how the Teamsters Union sees no need to change its name just because their members drive trucks not teams of horses drawing freight wagons. And they are all in favor of laws that keep horses and oxen off of public highways.

[Clarice]

Sounds like unlawful taking to me, DoT.

[cathyf]

Are we all certain that congress has the power to compel insurance companies to insure people against events that have already occurred?

Short answer, yes. In 1997 Congress passed health insurance portability, which means that insurance companies have to insure people against events that have already occurred as long as those events happened when the people were insured by another insurance company. This law actually creates value by making insurance plans more valuable without increasing their costs, which is why it is broadly supported by insurance companies and their customers.

[Clarice]

Taranto cites to a Reason article abut yet another claim of unconstitutionality, that the requirement to buy insurance is but another tax. If the mandate is deemed unconstitutional because requiring the purchase of insurance is in effect a tax collected by a non govt entity (which I don't think it will be) it will have the same effect on any privatized retirement insurance plan.

[cathyf]

One of the basic problems with Obamacare even if the mandate were large enough is that the penalty money goes to the government, not to the insurance company to fund claims. This, I think, is a feature not a bug -- killing off health insurance will go much faster if the government keeps the money.

[jimmyk]

Cathyf, maybe that's why they didn't go the route of my constitutional alternative of taxing everyone for government-provided insurance and giving a rebate if you go private. Then the 'penalty' in effect is the premium for GovIns. The contrast between crappy GovIns and what the private sector can provide would end up looking like the Post Office versus FedEx.

[Extraneus]

In an earlier, less addlepated time, the SC affirmed Willard v. Filburn. But as for events that have already occurred, would they affirm a law requiring insurance companies to write life insurance policies after the person dies? I'd like to retroactively insure a few lost relatives, if they wouldn't mind.

[Extraneus]

Wickard v. Filburn. (Rats.)

[Janet]

This cartoon was at Newsbusters -

[Danube of Thought]

This law actually creates value by making insurance plans more valuable without increasing their costs

I'm not sure I understand. If an insurer knows that its premiums will need to cover the expenses of persons with existing conditions who are not yet in its pool, it will necessarily have to raise its premiums in anticipation of those expenses, won't it?

[Danube of Thought]

Prof. Jason Mazzone:

Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate “activity,” as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress’s power under the Constitution’s interstate commerce clause have involved Congress regulating some kind of activity that is already occurring. . . .

In addition, parsing the distinction between activity and inactivity provides a way for the justices to strike down the individual mandate without having to overturn any precedent. . . .

[Minimalist Poster]

I dealt with tort refom from the provider side back in the time of HillaryCare. At that time a lot (perhaps even most) of the groups representing healthcare providers did not want federal tort reform as they preferred existing state laws to what they thought they could get on a federal level.

Personally, I'm not convinced tort reform reduces healthcare costs significantly. It does make providers happier as they are concerned about malpractice claims. I once heard from a state medical society that they'd done a survey & found that physicians who had claims and had gone through the legal system thought that the legal system worked. The physicians who had never had a claim and therefore never gone through the legal system felt that the legal system did not work. That survey was buried, for obvious reasons. Providers did not like Enterprise Liability at all. They thought they would lose their day in court and that decisions about the quality of their practice would be made by MBAs & CPAs.

One of the key drivers for physician complaints about the legal system is liability premiums. There was a medical malpractice crisis around 1975, another around 1985,one brewing around 1995 (but it was pretty much set aside due to concerns about HillaryCare) and another around 2005. National Association of Underwriters had a great article in the early 1990s about premium cycles and he effects on medical liability premiums. At least one state published a similar article in the early 2000s. Those articles concluded that there is a premium cycle lasting about 10 years. New insurers come into the market and reduce their rates to attract business. Existing carriers reduce rates to compete. On average it's 5 years from the time a claim is made until the claim is paid. Somewhere around the 5th year of the cycle the new carriers begin to pay on their claims. They realize they've been underpricing and raise their rates. Rates continue rising. Some carriers quit writing medical malpractice liability insurance altogether or withdraw from states that are not profitable. Eventually you have the next crisis.

[Clarice]

I think that may not take into consideration the number of unnecessary procedures doctors engage in as defensive masuresm MP.

DoT from the summary of today's tax Act here's the AMT provision;

"Two-year AMT patch. Currently, a taxpayer receives an exemption of $33,750 (individuals) and $45,000 (married filing jointly) under the AMT. Current law also does not allow nonrefundable personal credits against the AMT. The proposal increases the exemption amounts for 2010 to $47,450 (individuals) and $72,450 (married filing jointly) and for 2011 to $48,450 (individuals) and $74,450 (married filing jointly). The proposal also allows the nonrefundable personal credits against the AMT. The proposal is effective for taxable years beginning after December 31, 2009."

[MarkO]

Obama’s national health insurance was passed, not as a new entitlement paid for by taxes, but as a deficit reducing measure, financed by the insureds paying ever more reduced premiums for universal coverage.

None of it was true. Now, those who talk about Obamacare by suggesting that the policies have greater value with reduced premiums and broader coverage are either lying or have absolutely no understanding of the business of insurance. The words are meaningless drivel that would make any seasoned economist or an actual policy holder realize the writer is a fool.

This is magical realism adapted to economics. But, I will say that anyone who could believe the tripe mouthed by BHO in his campaign would accept these runes on their face and even repeat them to innocents.

To the rest of us, it is fraud. It is illegal for many reasons, not just the wrongful incantation of Commerce Clause superiority.

[Pofarmer]

This thing needs to be halted, and struck down yesterday. It is already costing the citizens of the United states Billions. Our HSA coverage is increasing? Why? Well, probably because of the free STD screening, the free depression screening, the free obesity screening and counseling, and on and on, none of which we had before Obamacare. Apparently, there's a provision in there, that is tying Medicare reimbursement rates to patient satisfaction surveys. I shit you not. When the patient leaves the hospital, they must fill out a survey. The results of that survey will determine the level of compensation the hospital receives. How many happy folks have you ever seen leave the hospital? This is madness. It must be shut down, rolled back, stopped, ceased and desisted.

[cathyf]

DoT, the point about the 1997 law was health insurance portability. The problem before that was that if someone in your family got an expensive chronic disease when you were covered under your employer's insurance, then you could never leave that employer because the insurance at the new employer would turn down your family member. If you were a company that wanted to hire someone with a chronically ill family member you simply couldn't, or you would have to find some way to pay for the expenses by paying the person way more money.

If only one insurance company allowed for coverage of people with pre-exisiting conditions, then the sick people would flow IN to that company, but since no other companies would cover them, no one would ever leave. So the idea is that you pass a law that forces every company to take people as long as they were covered by a different company. In that scenario, people with chronic conditions who already have health insurance would move from company to company, and by the law of averages, as many people would leave as would join up any single insurance company.

But notice these are not the free riders who didn't pay premiums before they got sick. These are people who were paying SOME insurance company all along. From the insurance companies' side, it's a wash -- 100 people for an average of 20 years each, vs 400 people for an average of 5 years each comes out to the same total premiums and the same total claims. For employers able to get that employee they want even though that person has a sick kid, it's a big gain. For employees able to go to a better job at better pay and not lose their health insurance, it's a big gain.

The 1997 law was the rare case where the situation was such that there were no losers and only winners as a result of the law. Usually there are winners and losers when laws are passed, and their competing claims must be weighed. So what you have is a clear legal precedent that Congress can pass a law forcing insurance companies to provide coverage to people who have pre-existing conditions. Because they have already done so, by passing the law that everyone -- insurance companies and their customers -- wanted them to pass.

[jimmyk]

Cathyf is right about the portability. But it solves a problem that is only their because of the idiotic system we have in which insurance is tied to employment because of the tax break. That tax break is also responsible for the proliferation of pre-paid health plans that cover everything imaginable, as opposed to genuine insurance, and therefore partly responsible for the huge runup of health care expenditures. It would have been far preferable to solve the portability problem by eliminating the source.

[rejuv by caci]

Your chances look pretty good, espeicially with the Ripley's portraits and all the volunteer work you've done. Have you been a president or leader of any of those? Also, you might consider retaking the SATs to try and get a higher score.