SECOND Federal Judge says Health Care Reform Law Unconstitutional

See here:

http://www.nytimes.com/2011/02/01/us/01ruling.html?partner=rss&emc=rss

Ideology or just plain dispassionate law?

I tend toward the latter. In a way, I don't think this is a matter of opinion. It IS unconstitutional. But that has rarely mattered before of matters of murkiness where judges who were so inclined would work backwards from a what they felt was an important or needed law and then twist the constitution to underpin it.

We can argue all we want on whether the details of the law make any sense or are necessary, economically speaking, to reach a desired goal. That's another matter. But where that archaic and stubborn document is concerned, I think it's pretty airtight on this matter. But like I said, we will see judges look for justification where there is little to none because they like the law.

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He had some over-reach though

This from Klein:

The full ruling has a very Bush v. Gore feeling, as Vinson concedes that his position is activist in the extreme and a break from the court's usual preference for limited rulings, but says, in effect, that he's going to do it just this once. "This conclusion is reached with full appreciation for the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute," Vinson writes, "but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated." Italics Klein's.

The Supreme Court (and by Supreme Court, I mean Anthony Kennedy) probably won't go that far.  But I don't think it's all that bad. You get rid of the individual mandate as written, then Congress can form an alternative: have a small open enrollment period or decrease the subsidy available the longer people wait to get insurance once they're eligible. Or withdraw the new protections people get if they opt-out of the system (or choose not to opt-in).

 

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"over-reach?"

That expression doesn't seem to be justified by Klein's remarks. The "facts of this case" *are* "unique," aren't they?

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links to some reactions

http://www.independent.org/blog/index.php?p=9256

"It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."

"Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system."

http://reason.com/blog/2011/01/31/obama-administration-says-heal

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I am almost leaning towards

having a government administered healthcare system in our country... We need to find ways to cut costs while at the same time insuring everyone. To be fair, mandate is a decent way of dealing with the problem, constitutional or not, and I give Romney props for trying it, but it will not stop the growth rate of the healthcare costs...

Sure we have a high quality healthcare system, but it's one of the most wasteful, and definitely the most expensive in the world. It is unsustainable. Also I think everyone should be covered. How do other countries manage to provide decent healthcare while covering everyone, while also spending a whole lot less money on it than we do?

Why do republicans pretend not to notice the facts while talking about how great our healthcare is.

And I am not saying all this because I am uninsured. I am fully insured and if, god forbid, I would get some debilitating disease - I'd rather have the highest quality care that we have here, than anywhere else.

"To discuss evil in a manner implying neutrality, is to sanction it." AR

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Ender?

Well, the sig def belongs to Ender...but the thoughts above it seem awfully un-Ender like. But I guess I can't talk since I haven't posted here in what..almost a year? I'm kinda glad to see the site still stands. I'll try to post more. Good topic, BTW John. Do you think the Supremes will uphold the decision?

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heya Charles!

Good to see you here. I haven't participated here in a long time myself.

As for un-Ender like thoughts :) Well, I've become a lot less partisan and ideologically pure. Not that I've ever been "pure".

When I look at healthcare I ask myself a couple of core questions and based on my answers I cannot support the status quo.

1. Should a sick person ever be turned away by a doctor due to inability to pay? My answer is no.

2. Should it be possible to go bankrupt trying to pay for your healthcare? My answer is no.

I still support a fully for profit system for both hospitals and doctors. I am however open on the question of existence of the private insurance companies, depending on the plan that is devised to satisfactorily handle my 2 questions. If the insurance companies can handle it within those parameters, more power to them. If they can't, then I can no longer support a system that answers yes.

"To discuss evil in a manner implying neutrality, is to sanction it." AR

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Utlilitarian argument

At least it's an honest argument.

But the "ends justify the means" argument is the root of a lot of harm in the evolution of laws in this country. Just saying.

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to some degree

I would still prefer that we accomplish those goals in a fair way, through the private sector if possible. If someone can come up with a way to cover every American, regardless of their ability to pay, through a free market solution, I would be all for it. But the Right is not even trying.

"To discuss evil in a manner implying neutrality, is to sanction it." AR

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Not to be pedantic

but I don't consider the Right to be very "free market" in their approach. Favoring the private sector? Yes, perhaps but that is not a synonym for "Free Market".

We're not going to get a free market solution in Health Care...ever. It's just not going to happen. Special Interest regulation has become so ubiquitous in the health care industry that I don't think most people even realize how much of it there is and how much these layers upon layers upon layers of regulation and twisted incentives have wrought layers upon layers new realities borne from these layers of regulations.

So, we are left with the incremental approach with NOW as the starting point. And NOW is a snap shot of how things work now...with all the business models and expectations from all sides that come with it. All movements from NOW are going to rock somebody's boat in transition to something that is better. But politics makes that all very difficult.

People take evolved economic institutions for granted. And where barriers haven't existed ((for the most part) we arrive at how many things just "work" over time without appreciating the process. The Internet is great tool to privately study the evolution of something that has evolved with little impediment. AND, we also see the problems with awkward "special interest" government regulation "for the common good" as we go along. We see, at once, how google has evolved from its birth in terms of how it operates as a business in terms of making money AND ALSO how it goes about trying to influence legislation to make its model work better going forward.

In this Google example, we see two unknowns:

1. We had no way of knowing back in the day how Google would operate in 2010 and how it would evolve and innovate its business model to find new profit centers...particularly in business to business terms. Even they didn't know. But that's free market.

2. Going forward we have no way of knowing how they will look in 2020 or 2030...on two levels

a. if things like Net Neutrality or other regulations come to pass.

b. if they don't.

And what if Net Neutrality already existed? What would look different? And what if legislation was in the works to get rid of it? What would the predictions be? And would the end result be what we have now or something different?

Apply this to health care and it boggles the mind.

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Hmmm.

1. Should a sick person ever be turned away by a doctor due to inability to pay? My answer is no.

I can certainly sympathize with the good intention here but this stance actually opens a can of worms as far as I can tell.

First, look at it from the Doctor's perspective.  They are trying to run a business and how much out of pocket are they expected to absorb just to be in that business?  10% gross income?  50% gross income?  All the way to backruptcy?

You are saying that an individual Doctor is required to take on a potentially unlimited amount of charity work.  No?

This is sort of like asking the question whether grocery stores should be able to turn away hungry people who can't afford to pay.  Right?  Are you also willing to ask the grocers of the world to give away food for free in a similar fashion?

Second, what are the legal implications for standards of care you would place on this Doctor when caring for those who are unable to pay?  Are the donwtrodden able to sue the Doctor for not providing the best available care even if they couldn't pay?

For example.  Someone who cannot pay shows up in the Doctor's office with a broken arm.  The modern standard of care for the insured presumably calls for at least X-Rays (and maybe even more expensive tests depending on the particular case), a state of the art cast, additional X-rays and follow-up appointments.

Is this Doctor expected to pay for all of that out of their own pocket just because someone walked into their office?  Or is it acceptable for said Doctor to simply make a physical examination only and apply a simple splint to the best of their ability to properly set the broken limb?  In this case the Doctor has not refused care but they have not provided the best possible care so are they then liable if the limb doesn't heal properly?

Personally I can't see how anyone can be expexted to cover an unlimited amount of expense simply because someone chooses their door to walk into.

Now, as far as I am concerned this same analogy scales up to hospitals as well.  The economics are the same.

2. Should it be possible to go bankrupt trying to pay for your healthcare? My answer is no.

I can also sympathize with the good intentions here as well.  To a large extent this issue can be covered amongst the insured by the insurance companies spreading the costs across a large enough pool of people such that the premiums are set high enough to cover the catastrophic cases without raising the premiums.  That is, after all, what insurance is supposed to be doing for us.  It will mean higher premiums for all of us who buy insurance but only incrementally so.

The problem always comes back to the uninsured and what to do with them.  You can't simply let them start buying insurance for the same premiums as everyone else has been for years the minute they discover they have cancer or whatever.  To do so only invites people to avoid buying insurance until the last minute thereby passing the true costs on to those who have been all along (since they will have had to pay higher premiums all along in order to cover the costs for the people who don't buy in until they are already sick).

I don't see how making a government run program solves any of this with the possible exception that extracting taxes from people is constitutional whereas requiring them to buy insurance is not.  But as soon as you cross that line you are forced into a position where you are either rationing of care beaurocratically (as opposed to via a free market) OR you have an out of control spending monster that you can never shut down.

I still think that the private system is better because the people having their care rationed are, at least to some extent, self-selecting by virtue of having made the decision to not buy insurance.

I'm the Bugs Bunny of Swords Crossed!
-4 Strongly Disagree - 0 Meh - Strongly Agree +4

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lets see

When I said that no sick person should ever be turned away, you misinterpreted my intentions possibly due to that sentence being unclear.

First, look at it from the Doctor's perspective. They are trying to run a business and how much out of pocket are they expected to absorb just to be in that business? 10% gross income? 50% gross income? All the way to backruptcy?
You are saying that an individual Doctor is required to take on a potentially unlimited amount of charity work. No?

I am not saying that doctors should accept charity cases. I am saying that there should be no people with inability to pay. Meaning everyone should be covered. That takes care of most of your comment, since I fully agree that all doctors should be faithfully compensated for their work and should never have to work for nothing. I just think it's absurd that in our society some people should forgo medical treatment due to inability to pay.

The problem always comes back to the uninsured and what to do with them. You can't simply let them start buying insurance for the same premiums as everyone else has been for years the minute they discover they have cancer or whatever. To do so only invites people to avoid buying insurance until the last minute thereby passing the true costs on to those who have been all along (since they will have had to pay higher premiums all along in order to cover the costs for the people who don't buy in until they are already sick).

Yes, which is why I don't think it should be up to an individual. If you make it voluntary, some people will wait and then everyone else will pay through the nose once they decide to go to the doctor at the last possible moment. To deal with it, either insurance has to be mandated for all, or we create a new healthcare tax that everyone has to pay and everyone is automatically covered out of that fund ala medicare. Why is medicare style insurance for all so unappealing, if medicare works quite well (sure it has fraud but what doesn't). The real problem would still remain costs and how to slow them down, but it's a problem with private or government insurance.

I don't see how making a government run program solves any of this with the possible exception that extracting taxes from people is constitutional whereas requiring them to buy insurance is not. But as soon as you cross that line you are forced into a position where you are either rationing of care beaurocratically (as opposed to via a free market) OR you have an out of control spending monster that you can never shut down.

I don't think it has to involve rationing. The pool of money that will include taxes from all the healthy young people, should be more than enough to cover everyone to the same degree that we currently do, while paying similar rates to the doctors. The free market solutions don't look like they will happen, especially due to the nature of the beast as John points out. I am just interested in whatever is practical and cost effective for all, including the taxpayers, as opposed to the most ideologically ideal solution.

"To discuss evil in a manner implying neutrality, is to sanction it." AR

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Agree philosophically, but

I think both of you are failing to think outside the box. Why must any action taken to fix the obvious holes in our system necessarily function as the current system does? And we all tend to lump "healthcare" under one label as if the mechanics and costs are the same for a child's ear infection as for late stage cancer treatment.
Why should for-profit doctors be forced to see patients who cannot pay? Why not establish a completely separate path for them? Clinics, a loosening of the rules/expectations for those who diagnose and treat non-complex medical issues, leveraging technology to provide cheap tools that would allow more effective use of OTC medications, local lab test offices where bloodwork and other tests to monitor chronic conditions and medication status, etc can be performed cheaply.

If such actions impinge on the profits of the current medical/pharmaceutical complex, well, isn't that the point? The current system has failed to find a market based solution on their own. Perhaps if the regulatory environment allowed for more options, the marketplace might deign to fill this less-lucrative but still undoubtedly proftable niche. These are the kinds of ideas I expected from this "smart" Administration. That new ideas and creative problem solving skills seem to be missing is a large part of my disappointment with Obama's leadership.

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Pardon the formatting issues

I'm using my new iPad and it seems to be a little tempermental. I love it though. A very amazing little machine.

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Separate but Equal

 Why should for-profit doctors be forced to see patients who cannot pay? Why not establish a completely separate path for them?

I think this would lead to another "separate, but equal" styled healthcare system, because the primary users of such a system would be the sick and the walk-ins who refuse to buy insurance until they get sick. This would definitely cause an undue burden on the clinic and costs would skyrocket.

I  don't care one way or another about the mandate right now, but if I were to lose my job, you bet I'd be worried about getting adequate coverage outside the heavily overpriced COBRA system. I'd be OK if the mandate passed--they should have called it the "No Free Rider" fee or something (since "tax" is apparently a very bad word these days). 

I actually like the ideas being put forth in the Wyden-Bennet plan which decouples Health insurance from your job and makes it "portable." I even think the "open-enrollment" plan put forth by some in Congress and the decrease in potential subsidies the longer qualified individuals wait to insure would work just as well as the mandate--and there would no longer be any dispute about the bill's constitutionality. It's only really the mandate people dislike. Most are OK with all the rest of the other major parts. 

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the SCOTUS?

No. They won't.

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I agree.

There is no way in hell that the federal government can mandate that citizens buy anything.  I think that the folks from South Dakota have illustrated that quite well:

http://www.cbsnews.com/8301-503544_162-20030246-503544.html

If the federal government can mandate the purchase of health insurance then there is no reason that the government can't mandate that everyone purchase a gun.  If the healthcare mandate survives judicial scrutiny then I think we should start a serious movement to also mandate gun owenrship.

I am against government run healthcare.  I am against government run anything except for the absolute essentials including things like roads and national defense.

That doesn't mean that I am totally against all forms of oversight and regulation though.  So I can accept, for example, insurance regulations which make it illegal to sell insurance that disallows pre-existing conditions or lifetime caps.  I can support the need for addressing those issues.  But merely outlawing such constraints within the insurance industry does not put the federal government in charge of the programs.  We would still have competition between the companies to help drive the costs as low as possible.  The net effect of these provisions is that the cost thereof would necessarily be spread across the entire insurance base which is the best way of distributing the costs fairly IMHO.

Eliminating denial based on pre-existing conditions always leads to the question of what to do about the guy who doesn't' buy insurance until they are sick.  After all, if the insurance companies cannot deny your application because you are sick, the personal incentive to buy insurance early is also eliminated.  So what to do?

Well we could allow the insurance companies to set their rates based on current helath status at the start of the policy coupled with past insurance coverage history prior to that point.  People who have been carrying coverage all along get a lower rate than people who havent' and now show up when they are sick.  You snooze you loose on the premium front.

I am thinking of something along the lines of computing the amount of premiums the individual has avoided assuming they had purchased the same policy when they were say 18 years old and then allowing the inusrance companies to recoup that amount over the course of a couple of years by raising the premium for that individual accordingly until they have caught back up.  The longer you wait to buy in the more you have to pay once you do to get the same amount of coverage.

This could all be smoothed out across the entire insured base.

Maybe there are better schemes than this.  I don't know.  But certainly something could be done.

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-4 Strongly Disagree - 0 Meh - Strongly Agree +4

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