Though
Washington, D.C., is a very political place, I find it refreshing to reflect on
the legal arguments underlying some of the major cases to be decided by the
U.S. Supreme Court over the next three weeks. But in doing so, I am not
explicitly endorsing a particular political position. Retired Associate Justice
John Paul Stevens has argued that Obamacare is likely constitutional and should
be upheld under the Supreme Court's precedent case Gonzales v. Raich.
While Justice Stevens wrote the majority opinion in Raich, he is
still quite a crafty nonagenarian.
Questions often
arise, in one form or another, like the following:
“How can Congress
use the commerce clause to compel commerce? If Congress can compel me to
purchase insurance to help cover the government's cost of my healthcare, can it
likewise compel me to walk 30 minutes a day to reduce it? If not, what's the
distinction?”
“What is the
difference between paying a tax penalty for refusing to buy health insurance
(because those fees will be used to lower the Government's costs to cover your
healthcare needs) and having to walk 30 minutes a day (because it will make you
healthier and act as a ‘preventative care,’ thus lowering the government’s
costs to cover you because you will have fewer potential healthcare needs)?”
“Why can the
federal government compel me under the law to purchase a commercial product, or
fine me for noncompliance? If the answer is that the government has a
compelling interest in keeping its costs under Obamacare down, then my next
question is could the federal government compel mandatory calisthenics to
satisfy the same government interest?”
-----------------------------------------------------------------------------------------------------
Below I provide
both a fewer-than-fifty-word response and a longer response.
Fewer-than-fifty-word
Response: read points
numbered 1. and 2. below.
Longer
Response: read the entire
note.
1. The government can't compel you to purchase a
commercial product or pay a fine in this instance because you already pay for
health insurance (I assume).
(If you do
not pay for health insurance, please proceed to number 2.)
2. The government already does compel you to purchase
a commercial product: "retirement insurance," or Social Security.
(If you do
not pay for Social Security, please proceed to number 3.)
3. Analytically, there probably is no distinction
between the “individual mandate” and the “individual calisthenics.”
If Congress can do the former, it should be able to do the
latter (assuming, arguendo, that the goals of both regulations
are to lower the total cost of healthcare and that a rational relationship exists
between calisthenics and lower healthcare costs). But practically, the
difference is that, if given the choice between the two, most Americans
would rather pay for a year’s supply of get-out-of-gym-class notes than
have to go to gym class 365 days a year.
(If this
practical difference is not convincing, please proceed to number 4.)
4. We don't need to seriously pursue the question
of a calisthenics mandate because the individual mandate does not present a
constitutional question that requires strict (or even intermediate) scrutiny.
Seeing as how the Lochner era is far behind us, the right to
contract freely is no longer a heavily protected right. Congress doesn't
need a compelling interest behind its economic regulations, just a
legitimate interest. Congress's chosen regulation of having every citizen
maintain a minimum level of health coverage (or pay a tax) need only
be rationally related to achieving its legitimate interest in lowering the cost
of healthcare for all citizens. We have high healthcare costs in
large part because of the high number of people who choose to
"self-insure" for the cost of healthcare services rather than buy
health insurance. (See quoted passages below for actual numbers). Because the
chosen regulation eliminates the self-insurers, the regulation should decrease
the cost of healthcare. Because the regulation should decrease the cost of
healthcare, the regulation is rationally related to achieving the legitimate
interest in lowering overall healthcare costs.
(If you
think Congress is attempting to “compel commerce/economic activity,” please
proceed to number 5.)
5. Self-insuring for the cost of healthcare
services is an economic activity.
The minimum coverage provision regulates activity that is decidedly economic. In Raich, the Supreme Court explained that “‘[e]conomics’refers to ‘the production, distribution, and consumption of commodities.’” Consumption of health care falls squarely within Raich 's definition of economics, and virtually every individual in this country consumes these services. Individuals must finance the cost of health care by purchasing an insurance policy or by self-insuring, cognizant of the backstop of free services required by law. By requiring individuals to maintain a certain level of coverage, the minimum coverage provision regulates the financing of health care services, and specifically the practice of self-insuring for the cost of care. The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan. Thus, the financing of health care services, and specifically the practice of self-insuring, is economic activity.
Thomas More Law Ctr. v. Obama, 651 F.3d 529, 544 (6th Cir. 2011) (emphasis
added) (citations omitted).
6. The Emergency Medical Treatment and Active
Labor Act (EMTALA) was enacted "to ensure that individuals, regardless of
their ability to pay, receive adequate emergency medical care." Bryant
v. Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir. 2002). Thus,
federal laws (not to mention sound principles of ethics and human decency)
require healthcare providers to treat people who have no ability to pay for
their services. Those unpaid costs end up increasing the cost of healthcare for
everyone who is insured.
Congress had a
rational basis to believe that the practice of self-insuring for the cost of
health care, in the aggregate, substantially affects interstate commerce. An
estimated 18.8% of the non-elderly United States population (about 50
million people) had no form of health insurance for 2009. Virtually
everyone requires health care services at some point, and unlike nearly all
other industries, the health care market is governed by federal and state laws
requiring institutions to provide services regardless of a patient's ability to
pay. The uninsured cannot avoid the need for health care, and they
consume over $100 billion in health care services annually. The high
cost of health care means that those who self-insure, as a class, are unable to
pay for the health care services that they receive. Congress found that the
aggregate cost of providing uncompensated care to the uninsured in 2008 was $43
billion. Congress also determined that the cost of uncompensated care is passed
on from providers “to private insurers, which pass on the cost to
families.” This cost-shifting inflates the premiums that families must pay
for their health insurance “by on average over $1,000 a year.” Rising premiums
push even more individuals out of the health insurance market, further
increasing the cost of health insurance and perpetuating the cycle. Thus,
the practice of self-insuring substantially affects interstate commerce by
driving up the cost of health care as well as by shifting costs to third
parties.
Self-insuring for the cost of health care directly affects the interstate market for health care delivery and health insurance. These effects are not at all attenuated as were the links between the regulated activities and interstate commerce in Lopez and Morrison. Similar to the causal relationship in Wickard, self-insuring individuals are attempting to fulfill their own demand for a commodity rather than resort to the market and are thereby thwarting Congress's efforts to stabilize prices. Therefore, the minimum coverage provision is a valid exercise of the Commerce Power because Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce.
Thomas More Law Ctr. v. Obama, 651 F.3d 529, 544-45 (6th Cir.
2011) (emphasis added) (citations omitted).
7. Generally, the Patient Protection and Affordable
Care Act (PPACA) is a good thing for people who already maintain health
insurance (and for those who cannot afford health insurance). Why are we
concerned about the cost of health insurance decreasing? I suppose the other
rational way to decrease health insurance costs is to deny healthcare services
to every self-insurer who cannot afford to pay for emergency treatment. We
could kill off two laws, EMTALA and PPACA, and it would solve the problem.
Calisthenics,
while very tempting, does not seem tailored to achieve the desired goal.
----------------------------------------------------------------------------------------------------
What other
possibilities are there that could serve the desired goal of reducing
healthcare costs and expanding coverage across the board? Leave a comment
below.
No comments:
Post a Comment