Supreme court debate Affodable Care Act

[eran_rathan]

Part of the problem is that that $100 cost to the insurer comes as the result of heavy negotiation that brought the sticker price down from $150. Maybe what we really need is a law requiring providers to charge private and commercial buyers the same amount. (Of course, that would be irrelevant if we start forcing everyone to buy insurance anyway.

But that's generally not what we see at all, providers routinely charge lower amounts to private persons than insurance companies.

This is flat out-wrong.


From http://health.costhelper.com/root-canal.html

A root canal on a bicuspid or premolar tooth (mid-mouth) can cost $400 -$1,800 or more, but typically is about $900 -$1,100. CostHelper readers without insurance report paying $600 -$1,550, or an average cost of $957. CostHelper readers with insurance report out-of-pocket expenses of $290 -$375, or an average cost of $333.

there are plenty more examples out there, this one took me only a few seconds to find.

[Dauric]

Part of the problem is that that $100 cost to the insurer comes as the result of heavy negotiation that brought the sticker price down from $150. Maybe what we really need is a law requiring providers to charge private and commercial buyers the same amount. (Of course, that would be irrelevant if we start forcing everyone to buy insurance anyway.

But that's generally not what we see at all, providers routinely charge lower amounts to private persons than insurance companies.

This is flat out-wrong.

To both claims I offer a hearty [citation needed].

[kiklion]

Part of the problem is that that $100 cost to the insurer comes as the result of heavy negotiation that brought the sticker price down from $150. Maybe what we really need is a law requiring providers to charge private and commercial buyers the same amount. (Of course, that would be irrelevant if we start forcing everyone to buy insurance anyway.

But that's generally not what we see at all, providers routinely charge lower amounts to private persons than insurance companies.

This is flat out-wrong.


From http://health.costhelper.com/root-canal.html

A root canal on a bicuspid or premolar tooth (mid-mouth) can cost $400 -$1,800 or more, but typically is about $900 -$1,100. CostHelper readers without insurance report paying $600 -$1,550, or an average cost of $957. CostHelper readers with insurance report out-of-pocket expenses of $290 -$375, or an average cost of $333.

there are plenty more examples out there, this one took me only a few seconds to find.

While you are defending my point, I believe your example to be incorrect. That example is comparing out of pocket expenses between those with insurance and those without. One would hopefully assume people with insurance pay less out of pocket, else why the hell even have insurance? My original point was that Providers charge insurance companies x+y when they want x, because the insurance company never pays full price. They then go and charge the uninsured x+y, even though they only need x, and the uninsured pays the full total.

Someone else retorted that they were under the impression that a provider would identify that the patient was without insurance and charge them only x, expecting them to pay the full amount.

There is evidence or citations backing neither idea.

[Dark567]

But that's generally not what we see at all, providers routinely charge lower amounts to private persons than insurance companies.

This is flat out-wrong.

I see a lot of conflicting reports on it:


http://www.bills.com/negotiate-your-medical-bills/

Discounts for cash pay patients without health insurance often range between 20 and 50% off of the normal charge.

http://www.myreporter.com/?p=1832
http://answers.yahoo.com/question/index ... 659AA0PI6B

But there hasn't really been any comprehensive studies as far as I can see.

While you are defending my point, I believe your example to be incorrect. That example is comparing out of pocket expenses between those with insurance and those without. One would hopefully assume people with insurance pay less out of pocket, else why the hell even have insurance?

It's definitely incorrect, we are talking about the total a provider charges insurance+out-of-pocket of the insured, compared to the out-of-pocket expenses of the uninsured.

[Griffin]

Discounts for cash pay patients without health insurance often range between 20 and 50% off of the normal charge.

Unfortunately, that makes no reference to how much health insurers pay for the normal charge (and portions of the charge the patient pays definitely don't apply here, but rather count against them).

As I said earlier, uninsured patients who argue it down can often get steep discounts off the "normal" price - but insurance companies can often get even steeper discounts.

Where it really hurts is when you're dealing with insurance companies that don't have enough pull to get those. The whole process destroys marketplace competition. (And yes, different insurance companies DO get charged different amounts, from what my family says)

[Jonesthe Spy]

Bumping this up because I just read a very interesting little article that pretty much demolishes the idea the the individual mandate is inherently unconstitutional, at least in the context of supposed "Originalism" that the right wing justices like to mask their political activism under. To wit:

In 1790, a Congress including 20 Founders passed a law requiring that ship owners buy medical insurance for their seamen. Washington signed it into law.

In 1792, another law signed by Washington required that all able-bodied men buy a firearm. (So much for the argument that Congress can’t force us to participate in commerce.)

And in 1798, a Congress with five framers passed a law requiring that all seamen buy hospital insurance for themselves. Adams signed this legislation.


The article can be seen here http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act, though I first saw it referenced in another essay on Slate.com.

I don't actually like the individual mandate - I think it will end up doing nothing to reduce costs and is far inferior to the abandonded Public Option idea - but there's a big difference between "bad idea" and "what the framers of the Constitution did or didn't intend".

[Wnderer]

The article can be seen here http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act, though I first saw it referenced in another essay on Slate.com.

Here is the rebuttal
http://volokh.com/2012/04/13/still-unpr ... -mandates/

The Gist
The 1790 act requiring shipowners to provide health insurance is just like requiring shipowners to provide life preservers. Congress is regulating an industry.

The 1792 Militia Act falls under Congress's Militia Powers, not the Commerce Clause. I think Congress can draft you and send you to fight and die in wars, too.

The 1798 act requiring seaman to buy health insurance did not actually require seaman to buy health insurance. It taxed them and the government provided health insurance.

Of course then there is the rebuttal to the rebuttal.

http://volokh.com/2012/04/14/einer-elhauge-replies/

And of course the real argument. No matter how stupid you think the Supreme Court and the Justice Department are, they know about this stuff and if they thought it was relevant, they would have brought it up.

[lutzj]

The Supreme Court also hadn't yet established its role in judicial review. If "passed as law in the 1790s" was proof of constitutionality we'd also be saddled with things like the Alien and Sedition Acts.

[bentheimmigrant]

The point of the argument, to me at least, is not the constitutionality of the law, but debunking the "original intent" argument - that is, saying that the founders didn't need to mention restrictions to the commerce clause because they were obvious to them.

[Arrian]

The point of the argument, to me at least, is not the constitutionality of the law, but debunking the "original intent" argument - that is, saying that the founders didn't need to mention restrictions to the commerce clause because they were obvious to them.

Except both of those examples were passed under Congress' military powers: The militia guns thing is pretty obvious to us, but the seamen's (heh heh) hospitals and insurance were also military in nature. The merchant marine _was_ effectively the navy, these were the days of press gangs and privateers, in time of hostilities there weren't any differences between civilian and military sailors. And there were definitely hostilities going on at the time of the 1798 act.

The biggest argument against these being precedent for the ACA mandate is that they have been floating around in legal circles since 2010, yet nobody has cited them in any of the court cases, not the mandate's defenders nor the courts which either upheld or struck it down. Just because we're hearing about it now doesn't make it new news.

[bentheimmigrant]

Were the seamen directly employed by the government? If not it is still an imposition on private citizens, which is the argument that this is about. As for it not being used in the courts, I only know it didn't show up in the Supreme Court debate. I don't know about other courts. But I also don't remember original intent being the cornerstone of the oppositions arguments either, so it would have been superfluous.

[Heisenberg]

It still has nothing to do with commerce. We know that Congress can levy taxes and if they feel like it, provide health care (aka Medicare). They still can't force you to buy insurance.

And on the gripping hand, this wasn't discussed during the hearing, so it probably won't be considered.

[Telchar]

It still has nothing to do with commerce. We know that Congress can levy taxes and if they feel like it, provide health care (aka Medicare). They still can't force you to buy insurance.

And on the gripping hand, this wasn't discussed during the hearing, so it probably won't be considered.

The argument still makes perfect sense regardless of what part of their powers they passed a law under (a ridiculous notion to begin with...).

The government required private citizens to purchase from private individuals Thing X because the government needed the populace to have Thing X in order for Thing Y to function. You're practically defining the Necessary and Proper Clause, which in McCullough v Maryland held that Federal legislation need not be absolutely necessary in order to be necessary and proper.

[Griffin]

The problem being that, constitutionally, the government has significantly more power in military matters than in other matters. It might be possible to argue an act conceived for the purpose of military defense not be so legal if conceived under different conditions.

[bentheimmigrant]

The problem being that, constitutionally, the government has significantly more power in military matters than in other matters.

Congress has the option to wield all its powers to their fullest extent. It just happens that it's historically more willing to when it comes to military issues. The ruling that Telchar was referring to provides that Congress can effectively do whatever it wants as long as it does not violate any specific rights - this applies whether these be for military or domestic issues. So in this case, it has the power to completely regulate interstate commerce.

The protection against bad laws wielding sweeping powers is not found in the delegation of powers, but in regular and free elections.

[Telchar]

A criterion of what is constitutional, and of what is not so ... is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality....

Unless "Right to not have health insurance" is a preexisting right, precedent seems to indicate fairly clearly that this measure is constitutional.

[Heisenberg]

The government required private citizens to purchase from private individuals Thing X because the government needed the populace to have Thing X in order for Thing Y to function.

If you're still on the merchant marines, no they didn't.

The 1798 act requiring seaman to buy health insurance did not actually require seaman to buy health insurance. It taxed them and the government provided health insurance.

You're practically defining the Necessary and Proper Clause, which in McCullough v Maryland held that Federal legislation need not be absolutely necessary in order to be necessary and proper.

First of all, those judges were wrong, and secondly, the Necessary and Proper Clause is irrelevant because this law says on page 1 that it was passed under the interstate commerce clause. Unfortunately for Congress, that clause does not empower them to enact this law, as it goes beyond regulation and affects in-state commerce only, since Congress already outlawed the interstate sale of health insurance. It's been regulated out of existence. It can't be regulated any further.

[bentheimmigrant]

That's really not how clauses work, and those judges opinions have stood for 180 years.

[Telchar]

The government required private citizens to purchase from private individuals Thing X because the government needed the populace to have Thing X in order for Thing Y to function.

If you're still on the merchant marines, no they didn't.

The 1798 act requiring seaman to buy health insurance did not actually require seaman to buy health insurance. It taxed them and the government provided health insurance.

I think the insurance for merchant marines is comparable to having to buy car insurance for your vehicle and isn't really applicable. I was speaking more towards the law requiring men to buy guns but I apologize for not making that clear.

First of all, those judges were wrong, and secondly, the Necessary and Proper Clause is irrelevant because this law says on page 1 that it was passed under the interstate commerce clause. Unfortunately for Congress, that clause does not empower them to enact this law, as it goes beyond regulation and affects in-state commerce only, since Congress already outlawed the interstate sale of health insurance. It's been regulated out of existence. It can't be regulated any further.

1. In comparing not only your body of jurisprudence but judicial education to that of John Marshall, I find you wanting. You may find that strikingly similar to an appeal to authority, but all you gave me to work with is "No" so..../shrug

2. You're conflating "sale" and "commerce". A corporation that operates in multiple states is, of necessity, intrastate commerce. Nobody, not even the plaintiff in this case, disputes the federal governments ability to regulate insurance companies. What the necessary and proper clause outlines is that, if in the process of regulating insurance companies congress has to pass a law that is not directly outlined in the enumerated powers then it can do so as long as that law doesn't infringe on pre-existing rights and, last time I checked, "not having health insurance" wasn't a right until after this controversy got ginned up.

[Silknor]

First of all, those judges were wrong

secondly, the Necessary and Proper Clause is irrelevant because this law says on page 1 that it was passed under the interstate commerce clause.

Unfortunately for Congress, that clause does not empower them to enact this law, as it goes beyond regulation and affects in-state commerce only, since Congress already outlawed the interstate sale of health insurance.

It's been regulated out of existence. It can't be regulated any further.

For the convenience of the reader I've highlighted each assertion in Heisenberg's last post that is inconsistent with the current judicial understanding of the clauses in question. In fact, even if the Supreme Court strikes down the individual mandate, all of those statements will most likely still be wrong!

AFAIK, in the case at question its not disputed by the petitioners that
1. The commerce involved is interstate.
2. The Necessary and Proper Clause applies regardless of if it is explicitly cited in the ACA.
3. That Congress can regulate intrastate transactions of insurance (eg. all the provisions in the bill that regulate what insurers have to cover, or what they can charge, or who they have to cover).
4. That the Necessary and Proper Clause does not require a policy to be necessary in the strict sense of "nothing else could possibly work" in order to cover it.

Their case turns on other objections instead, such as a distinction between activity and inactivity.

[Heisenberg]

The Necessary and Proper clause, according to your interpretation, is entirely meaningless. At least, in that it means whatever Congress wants it to mean, at whatever time is most convenient to them.

If Congress wants to ban milk sales starting Tuesday, they can do so because it's both Necessary and Proper to the regulation of interstate commerce. If they want to reinstate them starting Thursday, they can do so because it's both Necessary and Proper to the regulation of interstate commerce. That clearly goes against the meaning of the word "necessary" in that only one of those can be strictly necessary, though really neither are. So yes, according to McCullough v Maryland, the Necessary and Proper clause is irrelevant, always and everywhere, because it is entirely and utterly devoid of meaning. Everything is necessary and everything is proper, all the time.

[Silknor]

I don't think your example works. You don't need the Necessary and Proper to ban the sale of milk. You could do that on the basis of the Commerce Clause alone (yes, it's a broad power, but the sale of milk is clearly commerce, and a general ban is clearly interstate regulation, with the caveat that you'd need at least a rational basis for the ban, I believe). And you don't need to reference any power to reverse a law that Congress had discretion to enact. This is true even if it was a power which was justified under the Necessary and Proper Clause, so the weakness of your argument isn't contingent of the distinction between an explicit and implied power, rather it's just a categorical error to say repealing a law is based on any specific grant of power.

Obviously McCollough v. Maryland isn't as broad as you claim, but in truth it is pretty broad, which is why the central limiting power on the Commerce Clause is an extra-constitutional one: the people.

[Dark567]

and a general ban is clearly interstate regulation

I am fairly certain the Commerce Clause wasn't about interstate regulation, but interstate trade. "To regulate Commerce with foreign Nations, and among the several States". That's to say its purpose was to regulate trade between states, in much the same way we regulate trades to other countries to promote economic activity. Not something like buying milk from the grocery store which came from a farm a mile away.

That said the Clause is antiquated, I don't think the founders anticipated anything like the modern economy to emerge when they put it in place.

[Silknor]

and a general ban is clearly interstate regulation

I am fairly certain the Commerce Clause wasn't about interstate regulation, but interstate trade. "To regulate Commerce with foreign Nations, and among the several States". That's to say its purpose was to regulate trade between states, in much the same way we regulate trades to other countries to promote economic activity. Not something like buying milk from the grocery store which came from a farm a mile away.

That said the Clause is antiquated, I don't think the founders anticipated anything like the modern economy to emerge when they put it in place.

It is about commerce, not regulation more broadly, yes. Which is why I was combining the two: a general ban (interstate regulation) on a specific type of commerce (selling milk). I was just separating out the means and the target.

The question about buying milk from a farm a mile away though is a question about what commerce is interstate, not about trade versus regulation. Even before Wickard v. Filburn, a broad means of regulating commerce was clearly understood as interstate, even if much of that commerce was done at a local level. Eg. Congress had the power to ban selling adulterated milk, not only shipping it between states, but actually selling it from one farmer to one nearby customer. Or at least, I've never heard of say, a successful as-applied challenge to a broad based law that said our commerce should be exempted because we live near each other.

[folkhero]

2. You're conflating "sale" and "commerce". A corporation that operates in multiple states is, of necessity, intrastate commerce. Nobody, not even the plaintiff in this case, disputes the federal governments ability to regulate insurance companies. What the necessary and proper clause outlines is that, if in the process of regulating insurance companies congress has to pass a law that is not directly outlined in the enumerated powers then it can do so as long as that law doesn't infringe on pre-existing rights and, last time I checked, "not having health insurance" wasn't a right until after this controversy got ginned up.

How about the freedom of association? What if I don't want to associate with an insurance company by filling out their forms and giving them my money.

[Malice]

2. You're conflating "sale" and "commerce". A corporation that operates in multiple states is, of necessity, intrastate commerce. Nobody, not even the plaintiff in this case, disputes the federal governments ability to regulate insurance companies. What the necessary and proper clause outlines is that, if in the process of regulating insurance companies congress has to pass a law that is not directly outlined in the enumerated powers then it can do so as long as that law doesn't infringe on pre-existing rights and, last time I checked, "not having health insurance" wasn't a right until after this controversy got ginned up.

How about the freedom of association? What if I don't want to associate with an insurance company by filling out their forms and giving them my money.

That's freedom to associate, not freedom from association.

[addams]

I was thinking.

The U.S needs Nationalized Health Care.
Sure; The Rich can go to Sweden for extra special care. Like they do now.

[Silknor]

How about the freedom of association? What if I don't want to associate with an insurance company by filling out their forms and giving them my money.

That seems a novel interpretation of freedom of association, which has to do with the ability to effectively use the rights of free speech and petition, see NAACP v. Alabama (1958):

It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.

Also as a matter of freedom, it seems to make no difference whether the government gives you a large tax credit if you have insurance (various plans by Rep. Paul Ryan) or you have to pay a (smaller) fine for not having insurance, with no other penalties imposed for non-compliance (PPACA).

[Dark567]

Sure; The Rich can go to Sweden for extra special care. Like they do now.

Errr.... They do? Generally I've heard the rich stay in the US and pay for our world class health care, that the rest of the US can't afford.

[CorruptUser]

Well, the middle classes sometimes go to places like Viet Nam for cheaper care, but part of the reason it's cheaper is because malpractice laws are different; you get what you pay for.

Really, if you have cash you can't do much better than the US. Though that "if" is so big it might just need a second "f". Sure, in some parts of the world you can bribe your way into a new organ if need be (rumors abound about China's executions), but in the US you can do that too. Steve Jobs managed to get a new liver rather fast for someone in his 50s.

[omgryebread]

So a bit more than half a day until the ruling.

I've heard a lot of speculation. Most seem to think it will be the usual 5/4 split, with Kennedy as the likely swing vote if anyone does cross over. Though I've also heard people speculate on Roberts and Scalia ruling to uphold. I'm not sure at all myself which way the court will rule, though I think the law is constitutional. Either way, I don't think I'm getting sleep tonight from the anticipation/worry.

Thoughts on the constitutionality, or which way the court will rule, or what could happen after?

[Ghostbear]

Thoughts on the constitutionality, or which way the court will rule, or what could happen after?

As someone who wants to see the law upheld, I'm expecting disappointment. I saw some chatter about people thinking it might get upheld because some of the liberal justices have seemed happy lately, while Scalia seemed unhappy.. but I think that's just people reading far too much into things.

I'll be quite pleasantly surprised if I'm wrong.

[buddy431]

So a bit more than half a day until the ruling.

I've heard a lot of speculation. Most seem to think it will be the usual 5/4 split, with Kennedy as the likely swing vote if anyone does cross over. Though I've also heard people speculate on Roberts and Scalia ruling to uphold. I'm not sure at all myself which way the court will rule, though I think the law is constitutional. Either way, I don't think I'm getting sleep tonight from the anticipation/worry.

Thoughts on the constitutionality, or which way the court will rule, or what could happen after?

I think that if Kennedy votes to uphold the individual mandate, then Roberts might go that way too, to make it look like a less fractured decision. If they rule any part of it unconstitutional, I have a hard time seeing it being anything other than a 5-4 split. I think it's pretty likely that even if the individual mandate if struck down, the rest of the law might be upheld (whether such a law can feasibly stand without the individual mandate remains to be seen).

[webzter_again]

Thoughts on the constitutionality, or which way the court will rule, or what could happen after?

Intrade has ruling against individual mandate at 73%

[Ghostbear]

Intrade has ruling against individual mandate at 73%

Professional statistician* thinks intrade is being overconfident.

* Is "professional statistician" the proper term to use here? It seemed the best fit.

[CorruptUser]

The term is "Statistician". Or Mathematician, or Actuary, or Professor of Mathematics specializing in Statistics/Probability, or what have you. Anyone whose job title includes the word "professional" can be ignored. Unless you made them angry, which is easy to do, given the number of professional wrestlers on 'roids.

[Save Point]

First, I think the Court will find that the Anti-Injunction Act doesn't apply and that they can rule on the mandate now, instead of 2014 when it goes into effect. Easy bet is easy, but I will be sad and disappointed if I'm wrong. And then I will make angry prank phone calls to every Justice as revenge for leading me on.

I have a bet that the mandate will be ruled unconstitutional, and I would like it to be ruled as such, but I'm not nearly as confident as Intrade. I don't know about severability. You're supposed to read severability into legislation regardless of whether or not legislators insert such a clause, but that would require the justices to thumb through the entire legislation to decide what stays and what does not. Canons suggest severability, but convenience dictates it gets kicked back. However, doing this would end the question of the new Medicaid provisions, and I don't think the Justices (nor Congress or anyone else) would find that a satisfactory resolution. So, for arguments sake, I'll predict severability.

Alternatively, as a friend of mine pointed out elsewhere, Justices are supposed to exhaust all means of inquiry. This means they could potentially find it Constitutional under the taxing power even if the administration did not push that argument. I don't think that's likely, although it could come up in someone's reasoning even if it's ultimately non-binding.

If they do decide it's severable, then things get especially difficult to predict with regard to the new Medicaid provisions since it's under the Spending Clause, and the Court has rarely nullified what Congress has passed under that. I'm leaning in the direction of it not being struck down, but for no reason other than the fact that the Court rarely deigns to do that when Congress uses its spending authority (and I haven't been paying quite as much attention to that issue.)

[bentheimmigrant]

If Scalia votes to uphold the law, I will change my avatar to him for a week. He's the most overtly political judge on the court.

[jareds]

I have no prediction about the decision. I just wanted to observe that perhaps the military should be taking lessons on secrecy from the Supreme Court. (I know they don't actually face the same difficulties. But it is still kind of impressive.)

[iamspen]

If Scalia votes to uphold the law, I will change my avatar to him for a week. He's the most overtly political judge on the court.

If Scalia votes to uphold, I'll make a tinfoil hat and start preaching the End Times.