The constitutionality of the Patient Protection and Affordable Care Act (PPACT) (derogatorily called “Obamacare” by Republicans) is now before the U.S. Supreme Court. It is likely that the conservative justices will try to decide this case on the basis of politics rather than a strict adherence to the law. Justices like Scalia and Thomas would have the world believe that they are strict constructionists who follow only the law, but the truth is that they are highly political and they will decide this case on the basis of their political opposition to liberals and Democrats and in the hopes that their decision will hurt the chances of President Obama being reelected.
If Scalia and his political cronies were to decide this case solely on the law, they would be compelled to uphold the constitutionality of the law. In a long list of decisions, the Supreme Court has overwhelmingly upheld the broad power of the federal government to regulate commerce even if it meant regulating private activity which might have some affect on interstate commerce.
The chief question currently before the Supreme Court is whether Congress has the power under the Commerce Clause to mandate that people buy a minimum amount of health insurance under the PPACT. The Commerce Clause of the Constitution, U.S. Const. Art.1, Sec. 8, cl. 3, grants Congress power “to regulate commerce….among the several states.” In the case of Thomas More Law Center v. Obama, the Sixth Circuit Federal Court of Appeals upheld the constitutionality of the PPACT by recognizing that Supreme Court precedents give the federal government great power to legislate individual activity under the Commerce Clause.
The Sixth Circuit started-out by saying that “The minimum coverage provision, like all congressional enactments, is entitled to a ‘presumption of constitutionality.’" The court went on to say that “the presumption that the minimum coverage provision is valid is ‘not a mere polite gesture. It is deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an act is within their delegated power.’ ”
The Appeals Court then went on to find that under the Supreme Court decisions, enactment of the minimum coverage provision was definitely within the power of Congress. The Court noted that in several cases, including Gonzales v. Reich, the Supreme Court has held that Congress may regulate economic activity, even if wholly intrastate, if it substantially affects interstate commerce. For example, in Wickard v. Filburn, the Supreme Court upheld regulations limiting the amount of wheat a farmer could grow, even for non-commercial purposes.
The Sixth Circuit found that the minimum coverage provision is constitutional because Congress had a rational basis for believing that the provision has substantial effects on interstate commerce. The Court also found that Congress had a rational basis for believing that the provision was essential to its larger economic scheme of reforming the interstate markets of health care and health insurance.
The court recognized that 18% of the non-elderly population was uninsured and that most states required hospitals to treat people’s illness regardless of their ability to pay. Such uninsured people consume over $100 billion in health care services every year. Congress found that the cost of providing care to uninsured people was passed-on from providers to private insurers which pass it on to the families they insure. This raises the cost of health insurance and drives more people out of the private health insurance market. It becomes a vicious circle, and has a profound effect on the interstate commerce in healthcare and health insurance.
The Appeals Court held that the minimum care provision is an “essential part of a broader economic regulatory scheme.” Without the individual mandate, the PPACT would result in a terrible spiral: only relatively sick Americans would choose to get insurance, leading premium prices to rise and causing the healthier of even those sick people to drop their insurance, sending prices higher and higher.
Massachusetts, under Governor Mitt Romney, recognized that it could not successfully reform its healthcare system without enacting an individual mandate. The individual mandate has worked just fine in Massachusetts. It has actually lowered the cost of health insurance for consumers, and no court has held that it is beyond the power of the legislature.
It cannot be argued that the government cannot order people to purchase a private produce. They forget that most states require their citizens to purchase automobile insurance. It is considered an important part of the laws controlling the purchase and use of automobiles. Such legislative compulsion has never been struck-down by any court.
As one who practiced law for 37 years, and who took a special interest in Constitutional law, I can say with assurance that if there were no politics involved the upholding of the PPACT would be a slam dunk. I believe that those justices who question the constitutionality of the Act do so out of their political feelings and not out of any concern with the law. I hope that they will come to their senses and uphold this Act. But if they strike it down, I hope that the American People, in their righteous anger, will not only reelect President Obama, but also give strong control of both houses of Congress to liberal Democrats.
Thursday, March 29, 2012
Wednesday, March 28, 2012
Healthcare and Seniors
I suspect that most senior citizens who call themselves Republicans are unaware of the plans that the Republican candidates for President and the Republicans in Congress have for Medicare and health care. I suggest that they find out now so that when the time comes to vote they will know who wants to abolish their right to health care in old age.
The Republicans in both houses of Congress are now on record as having voted for a budget prepared Rep. Paul Ryan (R-Wis.), Chairman of the House Budget Committee, which would abolish Medicare as we know it. Ryan’s plan would save the government billions of dollars by shifting the burden of paying for medical care from the government to the senior citizens who would otherwise be covered by the current program.
The way Medicare works today, the government pays for all approved medical care of senior citizens. Let’s say that you need to have heart-bypass surgery. The surgeon will bill Medicare for the cost of the surgery, which might be in the tens of thousands. Medicare will approve a percentage of that bill and pay the surgeon. Most surgeons will accept as full payment the amount paid by Medicare, but if there is a deductable or amount in excess of the Medicare amount, most seniors are able to pay it by taking-out Medicare-Plus insurance.
Under the Republican plan put forth by Representative Ryan, the government would no longer make Medicare payments for people who are 55 years old and under at the time of the legislation. When those people become eligible for Medicare, there would be no Medicare for them. They would have to purchase private health insurance. Under the Ryan plan the government would assist people earning less than $80 thousand per year by giving them a voucher to help pay for health insurance. For people earning over $80 thousand, the voucher would be half the amount, and even less for people earning over $200 thousand per year. The voucher amount would be pegged to the cost of living.
The basic problem with the Ryan plan is that the cost of health insurance is rising at a rate far higher than the cost of living. The leading economists have asserted that in ten years, when the 55-year-old generation reaches eligibility for Medicare, the cost of health insurance will be more than double the amount provided for in the Ryan budget. That means that those seniors would have to pay an amount equal to, if not more than, the amount they would have to pay for health insurance today if there were no Medicare. Sure, this would save the government billions of dollars, but it would deprive millions of seniors of health care during that period of their lives when they are most in need.
Senior Citizens should also realize that the Republicans want to repeal the healthcare reform law, more properly known as the Patient Protection and Affordable Care Act of 2010 (PPACA). The Republicans in the House of Representatives have already voted overwhelmingly to repeal PPACA (which they derisively call “Obamacare”). Fortunately, that effort could not succeed because of Democratic control of the Senate. But who knows? Perhaps at some later date Republicans will gain the strength to carry out their plan to totally repeal all of the provisions of the law. What would happen then?
Senior citizens who are beneficiaries of the Medicare Part D drug program should be aware that the PPACA provides for the eventual elimination of the “doughnut hole” and has already begun to close it. The “doughnut hole” is the period during which seniors have had to pay the full cost of their prescriptions after they amassed $2,700 in drug costs. After $2,700, Medicare did not resume paying for drug expenses until seniors reached $4,350 in out-of-pocket payments, a figure most seniors never reach in one year. The PPACA has already cut the doughnut hole by $500 and has instituted a 50 percent discount in brand-name drugs. For many seniors who simply cannot afford to buy their essential medications during the doughnut hole, that will be life saving. If the law is repealed, the doughnut hole will remain. Of course, many Republican leaders want also to repeal the whole Medicare Part D drug program and make seniors pay the full cost of all medications.
The PPACA also provides many provisions that will benefit seniors as well as everybody else. Included are provisions that forbid insurance companies from denying coverage on account of preexisting conditions, from placing lifetime or annual caps on coverage, and from rescinding coverage after a patient files a claim. The law creates a long-term-care insurance program, financed by voluntary payroll deductions, to provide benefits to adults who become functionally disable. It eliminates co-payments for preventative services and exempts preventative services from deductibles under the Medicare program. There are many other provisions, too numerous to set forth here, benefiting seniors.
Seniors should be aware of the position of the current Republican candidates on health care. All of the candidates have shown support for the Ryan budget plan that abolishes Medicare. All of the Republican candidates, including Mitt Romney, would repeal PPACA. For example, Michele Bachman, who has called for repealing PPACA, has also called for the phasing-out of Social Security and Medicare. Governor Rick Perry has plainly stated that he considers Medicare and Social Security to be unconstitutional. He calls Social Security a “Ponzi scheme.” Ron Paul has long held that Medicare and Social Security are unconstitutional. Herman Cain wants to totally eliminate Medicare and Social Security. Newt Gingrich has argued that Medicare, Social Security, and other entitlement programs are fiscally unsustainable. He would replace Medicare and Social Security with private accounts so that seniors could save their money and pay for private health insurance. For low income seniors, he would offer vouchers similar to those offered in the Ryan budget plan.
If you are a senior citizen, or somebody who is on the brink of qualifying for Medicare, you have to ask yourself: Do you want to have Medicare abolished as the Republicans have already tried to do? Do you want to go on paying the full cost of medications after reaching the doughnut hole? Do you want the Medicare Part D program abolished? Do you want to restore the practices by insurance companies of denying coverage on account of pre-existing conditions, lifetime or annual caps, and other factors?
I would think that regardless of whether you are a Republican or a Democrat, you would strongly oppose the Republican efforts to eliminate your health benefits. You should remember this when the time comes to vote for the next president and U.S. Congress.
The Republicans in both houses of Congress are now on record as having voted for a budget prepared Rep. Paul Ryan (R-Wis.), Chairman of the House Budget Committee, which would abolish Medicare as we know it. Ryan’s plan would save the government billions of dollars by shifting the burden of paying for medical care from the government to the senior citizens who would otherwise be covered by the current program.
The way Medicare works today, the government pays for all approved medical care of senior citizens. Let’s say that you need to have heart-bypass surgery. The surgeon will bill Medicare for the cost of the surgery, which might be in the tens of thousands. Medicare will approve a percentage of that bill and pay the surgeon. Most surgeons will accept as full payment the amount paid by Medicare, but if there is a deductable or amount in excess of the Medicare amount, most seniors are able to pay it by taking-out Medicare-Plus insurance.
Under the Republican plan put forth by Representative Ryan, the government would no longer make Medicare payments for people who are 55 years old and under at the time of the legislation. When those people become eligible for Medicare, there would be no Medicare for them. They would have to purchase private health insurance. Under the Ryan plan the government would assist people earning less than $80 thousand per year by giving them a voucher to help pay for health insurance. For people earning over $80 thousand, the voucher would be half the amount, and even less for people earning over $200 thousand per year. The voucher amount would be pegged to the cost of living.
The basic problem with the Ryan plan is that the cost of health insurance is rising at a rate far higher than the cost of living. The leading economists have asserted that in ten years, when the 55-year-old generation reaches eligibility for Medicare, the cost of health insurance will be more than double the amount provided for in the Ryan budget. That means that those seniors would have to pay an amount equal to, if not more than, the amount they would have to pay for health insurance today if there were no Medicare. Sure, this would save the government billions of dollars, but it would deprive millions of seniors of health care during that period of their lives when they are most in need.
Senior Citizens should also realize that the Republicans want to repeal the healthcare reform law, more properly known as the Patient Protection and Affordable Care Act of 2010 (PPACA). The Republicans in the House of Representatives have already voted overwhelmingly to repeal PPACA (which they derisively call “Obamacare”). Fortunately, that effort could not succeed because of Democratic control of the Senate. But who knows? Perhaps at some later date Republicans will gain the strength to carry out their plan to totally repeal all of the provisions of the law. What would happen then?
Senior citizens who are beneficiaries of the Medicare Part D drug program should be aware that the PPACA provides for the eventual elimination of the “doughnut hole” and has already begun to close it. The “doughnut hole” is the period during which seniors have had to pay the full cost of their prescriptions after they amassed $2,700 in drug costs. After $2,700, Medicare did not resume paying for drug expenses until seniors reached $4,350 in out-of-pocket payments, a figure most seniors never reach in one year. The PPACA has already cut the doughnut hole by $500 and has instituted a 50 percent discount in brand-name drugs. For many seniors who simply cannot afford to buy their essential medications during the doughnut hole, that will be life saving. If the law is repealed, the doughnut hole will remain. Of course, many Republican leaders want also to repeal the whole Medicare Part D drug program and make seniors pay the full cost of all medications.
The PPACA also provides many provisions that will benefit seniors as well as everybody else. Included are provisions that forbid insurance companies from denying coverage on account of preexisting conditions, from placing lifetime or annual caps on coverage, and from rescinding coverage after a patient files a claim. The law creates a long-term-care insurance program, financed by voluntary payroll deductions, to provide benefits to adults who become functionally disable. It eliminates co-payments for preventative services and exempts preventative services from deductibles under the Medicare program. There are many other provisions, too numerous to set forth here, benefiting seniors.
Seniors should be aware of the position of the current Republican candidates on health care. All of the candidates have shown support for the Ryan budget plan that abolishes Medicare. All of the Republican candidates, including Mitt Romney, would repeal PPACA. For example, Michele Bachman, who has called for repealing PPACA, has also called for the phasing-out of Social Security and Medicare. Governor Rick Perry has plainly stated that he considers Medicare and Social Security to be unconstitutional. He calls Social Security a “Ponzi scheme.” Ron Paul has long held that Medicare and Social Security are unconstitutional. Herman Cain wants to totally eliminate Medicare and Social Security. Newt Gingrich has argued that Medicare, Social Security, and other entitlement programs are fiscally unsustainable. He would replace Medicare and Social Security with private accounts so that seniors could save their money and pay for private health insurance. For low income seniors, he would offer vouchers similar to those offered in the Ryan budget plan.
If you are a senior citizen, or somebody who is on the brink of qualifying for Medicare, you have to ask yourself: Do you want to have Medicare abolished as the Republicans have already tried to do? Do you want to go on paying the full cost of medications after reaching the doughnut hole? Do you want the Medicare Part D program abolished? Do you want to restore the practices by insurance companies of denying coverage on account of pre-existing conditions, lifetime or annual caps, and other factors?
I would think that regardless of whether you are a Republican or a Democrat, you would strongly oppose the Republican efforts to eliminate your health benefits. You should remember this when the time comes to vote for the next president and U.S. Congress.
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