The Core of this challenge is whether the Mandate that everyone have health insurance is constitutional. There are secondary issues, but this is the heart of the matter.

If the Court upholds the mandate, the ACA goes forward as planned to the continued objections of many conservatives. Getting everyone into the pool sharing the costs of the entire system is seen as the only way to keep costs down and maintain the insurance system. Jurists across the country are leaning slightly in favor of this as the likely outcome based on previous efforts to regulate commerce.

If the Court finds the mandate unconstitutional, do they find it severable from the rest of the law? If not, that will strike the whole ACA down. This according to the jurists seems like the least likely outcome.

If, on the other hand, they do invoke severability, the ball is back in the White House’s court. At that point the White House will have to answer this question: Can health care reform be successful without the individual mandate?

Why is the Mandate essential? First, if we don’t require everyone to buy insurance, then insurance will be disproportionately purchased by those who need it, the likely sick, making it more expensive/unaffordable. This would lead many to discontinue coverage in a continuous cycle that drives the price higher and higher until no one but the very rich can afford insurance any more and the system collapses.

Second, if a person is not covered by health insurance then any bills he/she accrues must be paid by the individual. If he/she cannot pay the bills, then civil suits are one remedy. If there are insufficient assets for a suit to be successful, then the cost is either covered by the care giver (as a loss) or by the government (in direct aid to care givers).

However, if the entire system is under-financed then the ability to continue bearing losses or covering expenses via government subsidy is at risk.

So….What happens if the Supreme Court strikes down the individual mandate but rules that severability applies? Two options. The Obama administration washes its hands of health reform, proclaiming that it can’t be done without the individual mandate because costs will rise too rapidly and the insurance system will collapse. Or the Obama Administration forges onward with a modified system.

Option one is terrible politics with the President and his Democratic allies admitting defeat on one of the defining aspects of the Obama presidency. Moreover, it would have tremendous negative implications for the future of health reform initiatives generally.

Option two looks good politically but it could destroy the health insurance market and hurt Americans in the process. If it shapes up that way it would be an example of very bad leadership and be incredibly painful.

But, could it be done in a way that demonstrates sound leadership and minimizes the pain. New evidence suggests that the pain might not be as great as many fear. Simulation models from the Kaiser Foundation and John Sheils and Randall Haught of the Lewin Group have found that health reform without the individual mandate would result in fewer people being covered and insurance premiums increasing, but things would still be better than if we did nothing at all.

According to their findings, without reform 51.6 million remain uninsured. With mandate based reform 20.7 million remain uninsured. Without the mandate but with reform continuing 28.5 million remain uninsured. Premiums without reform rise by 15.9%. Premiums with reform (but without the mandate) rise by 12.6%.

However. the CBO is not nearly as optimistic with many more uninsured and the costs much higher but there would still be some improvement. The CBO expects that axing the individual mandate will mean 44 millon insured persons and a premium increase between 14 and 16%

If the Court finds the individual mandate unconstitutional, the White House will have more actuaries and health economists crunching numbers than you can imagine and the political pressure on the GOP will increase tremendously.

How so?

If the Supreme Court finds the ACA unconstitutional in any way THEN the Obama campaign will launch an Information Campaign that will feature all the features immediately endangered by the decision. The following, the campaign would say, are now on the chopping block—-

1) …insurance companies are prohibited from imposing annual and lifetime dollar limits on essential coverage.

2) …job-based health plans and new individual plans aren’t allowed to deny or exclude coverage for children (under age 19) based on a pre-existing condition including a disability.

3) …children under age 26, covered by their parent’s insurance if it covers dependent children at all.

3) …if income is less than the equivalent of about $88,000 for a family of four today, and employment doesn’t offer affordable coverage, families may get tax credits to help pay for insurance. (THIS IS 28.6 MILLION AMERICANS, by the way)

4) …pregnancy and newborn care, along with vision and dental coverage for children, is covered in all exchange plans and new plans sold to individuals and small businesses.

ALL OF THAT GONE?

DONE AWAY WITH BY A SUPREME COURT DECISION?

And then the White House will push what WOULD HAVE BEEN IN PLACE by 2014 when public exchanges and subsidies would have expanded the number of insured tremendously, health insurance premium oversight would increase and the protections now applied to children would be expanded to cover everyone. NONE OF THAT HAPPENS IF THE LAW IS STRUCK DOWN.

IT WILL EMPHASIZE THE IMPORTANCE OF HAVING APPOINTMENTS TO THE COURT WHO ARE NOT FIRST AND FOREMOST AGENTS OF THE GOP. IT WILL EMPHASIZE THAT THE GOP HAS NO PLAN TO DEAL WITH HEALTH CARE NEEDS.

Two likely results? If that info campaign is successful, the Obama campaign will be lifted as Americans suddenly realize ALL they have lost and turn on the GOP in large numbers. The White House, buoyed by public response will push ahead with reform without the mandate demanding that Congress find a way to fund the program fully. And the Health Care Reform debates begins again.

Sources:
http://www.kevinmd.com/blog/2011/11/supreme-court-strikes-individual-mandate.html
http://www.huffingtonpost.com/2012/03/26/supreme-court-health-care-reform-affordable-care-act-obamacare_n_1379805.html
http://www.washingtonpost.com/business/affordable-care-act-provisions-get-historic-review-by-supreme-court/2012/03/26/gIQAVKNBcS_story.html
http://www.nytimes.com/2012/03/25/opinion/sunday/a-moment-of-truth-for-health-care-reform.html?_r=1&ref=affordablecareact

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KQµårk 死神
Member

Another right wing justice argument debunked from an anonymous blogger.

Why not mandate burial insurance, too, as Justice Alito asked? The burial counter-argument is the strongest criticism I’ve heard. Its strength helps uncover why health care is special:

Burial Insurance vs. Health Insurance
One-time expense v. Open-ended, uncertain expense
Small cost for minimum service v. Potentially enormous costs

Nature of minimum service is simple and commonly replicated v. Nature of basic services are complex and highly individualized

Political branches have not identified unpaid burial expenses as major social problem v. Political branches have been debating solutions to this huge social problem for decades

There really is no market like health care. Its unique status justifies the unprecedented individual mandate prior to point of sale.

Based on the ‘limiting principle’ (admitting that the HC market is indeed unique) and the commerce clause, it should be a no brainer that the ACA is constitutional.

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funksands
Member

KQ, that’s a good comment. Righties seem to have no trouble cooking up and eating these comparisons. My favorite is the hysterical “The US is an eyelash away from being Greece!!”

Yes, other than being completely different, you are absolutely right.

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Nirek
Member

I wonder how many people will be affected by this law? Most of us already have insurance through our employer or the government or some other source. The very people who need insurance are the ones who will have to get it. This will save money (tax dollars) because the sick or injured will be covered by insurance so the cost won’t be passed on to us covered folks.

Seems to me it is a win win to have everybody covered by insurance.

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KQµårk 死神
Member

Spot on.

Add the lose-lose we have now that people with private insurance pay at least $1,000 more in HC premiums to cover the uninsured that have to go to ERs.

There are many other cost inefficiencies that can’t even start to be addressed until we have at least near universal coverage as well so that $1,000 probably has a multiplier.

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Nirek
Member

KQ, too bad more people don’t think along the same lines as we do. I think we make sense while the “right” is going after cents ($).

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choicelady
Member

You have nailed the essential point!

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Nirek
Member

Thank you CL, to me it is common sense (all too uncommon on the “right”).

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SallyT
Member
KQµårk 死神
Member

Cheers Sally great source.

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SallyT
Member
funksands
Member

Wow, lot of very smart people posting very smart things on this story. Now for a change of pace…

The wild verbal gesticulation by some of the conservative justices about where the limits of Congressional power to compel activity might be a good thing?

If they don’t really have an idea of whether or not Congress has the power to compel this, don’t they have to fall back on EVERY court’s supposed default position?

Doesn’t ever court have the default assumption that EVERY law passed by Congress is constitutional unless it is blatantly NOT so?

Or has the Roberts Court evolved beyond that?

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KillgoreTrout
Member

Funk, the Commerce Clause in the Constitution really does settle this whole argument. It clearly states that Congress has the power to regulate commerce in some situations. I would think that the ACA is one of those situations.

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choicelady
Member

I agree, KT. Since this, a noted above, is a unique “consumption” issue, and since we all of us are on the hook at both state and federal levels for uncompensated care, there is reason to think the Commerce Clause holds sway.

I was VERY heartened by Kennedy’s summation. And wouldn’t ya know – hardly ANY of the media reports mentioned it.

Sigh.

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funksands
Member

KT, I think it does too. Today really feels like the the conservative justices harrumphing and showing how displeased they are about this law…before they allow it anyway. At least that’s what I tell myself.

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escribacat
Member

All these negative predictions are literally making me sick to my stomach. What about those of us who need the damn legislation to get insurance? Screw us then, eh, rightwing justices?

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Chernynkaya
Member

E’cat, today is a good day to stay away from the media. They are turning this into another horse race and ginning up preemptive outrage. I just watched as TPM started the day with headlines like “Tough Questions from Justices” and now shriek “DISASTER for the Left!!!!”

I can always find reasons why things will turn out badly–that’s my nature. But I can also see when I’m being manipulated. For all I know this SCOTUS hearing is in no small part political theater. The 5 RW Justices know everyone is watching and may be playing to the Repubs. They may be asking tough questions to appear “very serious” but they may also be actual jurists who understand precedent and the Constitution. Thomas aside, I think they are–even Scalia. Anyway, that’s my take for the moment.

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choicelady
Member

I agree, Cher. Es-cat – I think you’re OK. Really.

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escribacat
Member

Thanks for talking me down, Cher. I’ve tried to get over the habit of getting emotional about political events (and this IS a political event, not a legal event). I will avoid the news because this one hits too close to home and it’s extremely upsetting. I need a dumb movie to watch this evening — how about “Gidget” or “The Ghost and Mr. Chicken.”

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choicelady
Member

Go for it, Es-cat!

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SallyT
Member

Escrib, well, stay off of TCM (Turner Class) tonight. They aren’t helping because tonight they are playing “Cape Fear” followed by “River of No Return” that is then followed by “The Night of the Hunter” and ending the night programming with the movie “Rampage”. Talk about living my life in the movies in one night!!!! 😯 Yes, Gidget sounds much better!

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KillgoreTrout
Member

Sally, the film “Being There,” with Peter Sellars and Shirley McClain would be a nice touch. 😉

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SallyT
Member

Cher, I do think a lot of this is theatrical. I have heard the Justices ask questions in the past that would lead you to think they are going to vote one way and they turn around and vote the opposite. You can call me Sarah Palin for now because I can’t name an exact case to point to for an example but I do recall my thinking at the time that lead me to think this now. 🙄

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Khirad
Member

Ditto that. I remember the last time (what was that?!) I heard Kagen challenging someone who she ended up siding with. Sometimes it’s Devil’s Advocate to strengthen the case. I’m not sure that’s what Roberts was doing and I’m not banking on him, but he’s the only one apart from Kennedy that’s even remotely possible.

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SallyT
Member

Khirad, I can’t remember those damn cases today! And, today I can see Russia from my house! 🙂

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KQµårk 死神
Member

My favorite meme is this will look bad for Obama because he’s a constitutional scholar if they find the law unconstitutional. Sure technically it will be unconstitutional because ideological right wing judges say it is but that does not mean another court would have ruled in favor.

I mean we all know the Citizen United ruling was unconstitutional.

I saw someone bring up the point that the SCOTUS of the 20’s would have called SS unconstitutional so it’s all relative to the court you have.

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escribacat
Member

I read somewhere that Ginsberg or Sotomayor brought up Social Security but got shouted down. Maybe I made up the shouted down part.

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choicelady
Member

One site, The People’s View, assesses the likely outcome at 7-2 in support of ACA. It’s worth taking a look http://www.thepeoplesview.net/2012/03/why-individual-mandate-is-probably-safe.html

The other fallback is expansion of the existing “public option”, the High Risk Pool. It is unarguable that the government can mandate enrollment in a public plan. We did it with Medicare. By making that broader and more comprehensive – eliminating the waiting time without insurance and expanding the base – it would serve everyone well as a non-private commodity requirement. Purchasing something in the private market by mandate is the crux of the “if they can insist we buy insurance they can force us to buy broccoli” anger. That would go. Already the large numbers of people taking up the High Risk Pool has reduced premiums in CA from $500 per month in San Francisco down to $400. With millions more, it might well drop further and make a flat assessment percentage possible as we have done with Medicare.

In other words – all is not lost, IMHO even if the justices provide a political rather than legal ruling. And they might – think of who they are and what they did on Citizens United and Gore v Bush. And the latter was not even THIS court. But there are reasons to believe they won’t, that since the mandate originated with the (ugh) Heritage Foundation, that they won’t overturn it even for their best buds. Scalia and Thomas – oh sure. The others? Not so likely since killing the private market mandate could very readily push us into a form of single payer. Conservatives would like that not at all.

So we will have to see what they say, but there are reasons to understand that with the public option already in place, all might not be so bad.

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KQµårk 死神
Member

The big problem with that CL is the HRP PO would become a huge money pit. For one thing even $400/month is an individual rate and is too high for that huge group of people that would get more generous subsidies in the exchanges so to make it work the government would have to fund the HRP to a much greater extent. So every budget period you have to beg the House for more money whereas the tax subsidies for the exchanges are written into the law. I forget where I saw the study but the whole HRP concept would actually make cost increase faster that no HCR under some models.

The worst part is destroying the mandate destroys the ability of the exchanges to have lower premiums beyond the subsidies because you don’t have an adequately expanded risk pool.

The way Kennedy is attacking the ACA mandate I see it being struck down. To be honest he has not been a true swing vote for quite a while and has sided with the conservatives much more often than not. Right now it looks like Roberts is the only possible swing vote and he’s attacking the mandate as well.

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AdLib
Admin

Hey CL, I agree and am not as concerned that the SCOTUS would overturn any section of the ACA including the mandate. They could but it would be such a radical turn for some of the 5, even though they are Republicans, I doubt they can find enough justification for their own satisfaction to set such a destructive precedent that would substantially weaken our federal government’s ability to govern.

For me, the argument against the mandate seems terribly weak. The proposition is that government should not be able to force a citizen to buy something. The premise is that someone who chooses not to buy insurance is not participating in commerce and thus is not subject to Congress’ ability to regulate commerce.

They complain that government shouldn’t be able to regulate what a citizen does just by being alive.

By saying that however, they would seem to hand the argument over to Obama.

By being alive, out of necessity, one IS participating in the health care industry because every living person, at some time, will need medical care. By necessity, to just be alive is to participate in the business of health care.

Their flawed argument would be akin to saying, just because I own a car, doesn’t mean I’ll ever have to pay for maintenance or repairs. It’s just plain wrong, of course you’ll have to change the oil, have a tune up, replace a tire or battery if you own a car.

So, if I choose not to pay for my repairs and if the law required repair shops to service my car in an emergency, my not paying means that the repair shop has to charge everyone else more to make up for that loss.

So for these alleged “personal responsibility” frauds, that term means just the opposite, “Personal irresponsibility” and in essence, stealing from others.

The fact is clear that those who claim not to be participating in commerce, are in fact not only participating in it but greatly affecting it and causing the price of goods and services to keep rising.

My question is, if these people insist on making the rest of Americans’ health care costs go up, how can they say they’re not involved in commerce?

Scalia and Thomas could justify opposing a cure for cancer, they are lost causes but would Kennedy, Alito and Roberts be able to delude themselves so enormously and destroy whatever remains of their reputations and legacies by denying a fact as plain as this one? And destroy the balance of power between the branches of government?

I don’t think all of them could or would so I agree with the potential of a 7-2 decision and am even prepared for a 5-4 decision, with Kennedy being the most likely swing vote.

If the mandate was overturned and the SCOTUS essentially stated that it would now be superior to the reasonable decisions of elected government, our democracy will be seriously wounded and will stagger from this point forward until the balance of the SCOTUS is changed and has a moderate to Progressive majority that could undo such damage.

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KQµårk 死神
Member

IDK from what I’ve read today it’s definitely going down 5-4 because conservatives simply cannot put the Constitution before ideology. They have been attacking the mandate as limiting personal freedom sounding just like a teabagger pol. 🙄

Of course these are the same people that want to control woman’s bodies.

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KillgoreTrout
Member

That’s it. The only “personal freedom,” the GOPers want is for themselves, the hell with everybody else.

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lowskiesgirl
Member
lowskiesgirl

While I can agree that the mandate is necessary to keep premiums low, why is everyone forgetting regulation of healthcare costs? If an MRI in the Netherlands costs 1500eur without insurance, there is no reason the same MRI in Kansas should cost $6,000.

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Chernynkaya
Member

The ACA only addresses costs for Medicare and those in the insurance exchanges. It is not in the scope of the program to regulate private doctors fees or hospital costs for privately insured patients. It is not the same system as Europe’s. We are not there yet–not universal health care. All it can do is reduce the costs of care for people who sign up for the program.

The ACA contains measures to encourage health
care providers to band together in accountable care
organizations (ACOs) to better coordinate services
for a group of patients, resulting in higher-quality
care at lower costs.

It also controls waste and fraud, but again, only in Medicare and Medicaid and for those who sign up for the program.

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lowskiesgirl
Member
lowskiesgirl

Which is absurd. Please don’t lump healthcare in Europe into one system. There is no ‘European health care system’. There is the Dutch program, the UK program, the French program, and so on.

I live in the Netherlands, which is a lovely marriage of govt. regulation and private enterprise. Having lived under both systems, I’m acutely disappointed at the total lack of pricing regulation for the general population. Huge mistake.

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Chernynkaya
Member

I realize there are several forms of health insurance in Europe. I wish we had something like them. I also wish a lot of things. This discussion, however, is about what we have here, now. And yes, it’s ridiculous that we don’t have a better system. Was that your whole point? If so, you’re correct. But that hardly matters at this point. Since you live in the Netherlands, you might not be aware of the monumental battle that took place to get merely this far.

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lowskiesgirl
Member
lowskiesgirl

I said I lived in the Netherlands, not that I was Dutch. I’m American actually, so yes, I’m well aware of what is, has been, and is not available in the US.

And since I have lots of family and friends in the US, I’m well aware of what’s at stake in this case. I just wish my family and friends were.

I still see it as a significant failure to have left out the regulation. I’m not a fan of single-payer, but there you go.

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SallyT
Member

Hello lowskiesgirl, I understand your frustrations in living in a different country and how things there are compared to here. It lets you see how narrow our own country can be on certain issues. I have never lived outside of the US but I can relate with you in just wishing some of my friends would move out of the MidWest for awhile here. They would see that life can be more open and appealing along with certainly less racists in different sections of this country as well. Sometimes you just want to yell, “WAKE UP! 🙂

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AdLib
Admin

Hi lowskiesgirl and welcome to The Planet!

Keeping in mind how plutocratic our Congress has become, it is surprising to me that the regulation was passed which mandates insurance companies use 80%-85% of premiums on healthcare or they have to refund the overage.

The pay per service model that currently exists in the US, encourages over usage of services and promotion of costlier medical care. With a system focused more on preventative medicine, as the ACA supports, those costs should decline.

As for regulating the cost of services nationally, I don’t see how that can be done Constitutionally without a single payer system. Of course, for example, Medicare could limit what they pay for a service but the provider can still keep the price where it is and the burden shifts to the patient, if Part B doesn’t cover it in full.

It’s a Catch 22 in a way, corporate providers have a service that is critically needed and have a legal directive to make as much money as possible from it while the cost of health care is becoming unaffordable.

The problem is of course the profit motive in health care and single payer could neutralize that by changing the game so that there is no alternative but to provide a service for a consistent and fair price.

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Chernynkaya
Member

In states that tried market reforms without a mandate, premiums increased significantly and enrollment declined. By contrast, the Massachusetts health reform law enacted in 2006 included a mandate with the result that coverage is now near universal. Independent analyses of the Affordable Care Act indicate that the mandate will be instrumental in achieving near-universal coverage, and that it will reduce premiums. Significantly, there is no evidence
that any alternatives to the mandate would be nearly as effective.

Center for American Progress
http://www.americanprogress.org/issues/2012/02/individual_mandate.html

So, yes, it’s possible to have HCR without the mandate, it just would suck. Only the oldest and sickest would enroll for the most part and everyone else’s premiums would rise. And then the program would be declared a failure.

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KQµårk 死神
Member

If it’s struck down this really could be our last shot at Federal level universal healthcare reform.

Of course we have loons like AOLHP Reich implying that if the ACA is struck down then it could be a good thing and Dems can go for for Medicare for all.

What fucking planet do these progressive ideologues live on?

Every iteration of HCR reform has gotten more and more conservative when each Dem attempt fails. This is the kind of ridiculous progressive expectation/disappointment machine that got us the teabaggers in 2010.

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Chernynkaya
Member

Tell me about it. These pudnuts comment WAY over their level of expertise too. Robert Reich–WTF does he really know about politics? (I read his Wiki entry recently, and he’s an expert in labor law basically). Yet he’s always at the ready to opine stridently about anything and everything. Of course, that’s what pudnuts DO, but Reich has a patina of gravitas because he was Clinton’s Sec of Labor. I’ve noticed the same with Nate Silver and Chuck Todd: They were essentially statisticians and pollsters. What do they know about politics any more than you and I do. Peter Principle.

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KQµårk 死神
Member

You’re preaching to my choir as well Cher.

Reich is the worst type of pundit in my mind because when he actually held office and he did not do anything to promote the progressive causes he espouses now. I mean where were all the labor protections in the free trade agreements Reich?

Even though I wish the trade agreements had more protections for labor under Obama at least they have some.

Reich is the epitome of what I call a reborn progressive since he did nothing progressive when it mattered but criticizes Dems in office who are responsible for much more progress than he ever realized.

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Chernynkaya
Member

Oh, I know. I’m venting! But as to Reich, spot on.

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KQµårk 死神
Member

Not picking on anyone but one pet peeve is when people talk about the size of the legislation in terms of documentation. Well duh the ACA covers covers 1/7 of the entire economy including changes in Medicare and Medicaid. I understand people just don’t like things they don’t understand, that’s human nature but really. The fact that people actually applauded Cain for saying he would limit all bills to three pages showed this mentality to the extreme.

I guess because I come from the high tech field I understand that you just can’t dumb down complex matters but so much. For example you can’t put how to build an aircraft carrier or paper mill (my expertise) on three pages. I know there is allot of legalese in the ACA but the majority of the language was necessary.

Romney talks about how his MA law was only 70 pages well that was one state. Multiply it by 50 and you get 3500 pages. I know it’s not a linear multiplier but just trying to make a point.

Sorry for the rant.

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Chernynkaya
Member

Same here, KQ. I never understood that line of attack. As you say, this is an ambitious project. Think of the complexity of health care. I took a class in medical coding a few years ago, and the code book alone is thousands of pages. That’s just the billing codes!

Conversely, some very bad legislation is overly simplistic, such as that Stand Your Ground law. Lazy lawmakers couldn’t be bothered to think it through; couldn’t be bothered to imagine how such a simpleton law could play out. And that’s also why ALEC is successful: they know legislatures are lazy and unintelligent. They provide ready-made legislation for states to sign on to.

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KQµårk 死神
Member

Absolutely think of the personhood bills the GOP tried to pass on ballots. Not only was the whole concept stupid but they basically could have been used to put people in jail for using contraception because they were so vague.

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Chernynkaya
Member

That contraception bill reminded me: They don’t even freaking read the bills they pass. Gov MacDonald was (feigning?) surprise that the ultrasound bill VA passed was invasive. GAH! What maroons!

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KQµårk 死神
Member

I’ve come to the conclusion the GOP hates government so much that they love being terrible at it. Look at the way the GOP is running their clown show of a presidential primary. They can’t count the votes, refuse to count the votes, take away delegates at random, etc. I mean look at how badly Romney is running his own campaign and he’s suppose to be the competent one. Yet we are suppose to believe they can run the country.

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Chernynkaya
Member

It’s become a badge of honor to be ignorant and inept, as if they can display their contempt for government (and IMO by extension, for American values) by saying, “Fuck it, we’re white and privileged. Competence is for the Little People.”

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bito
Member

KQ, as I wrote in TO/OT 60+% of people don’t even understand how the law effects their lives. 80% of all people already have Health Insurance so the ACA Mandate wouldn’t effect them at all, however it, the ACA, would vastly improve their coverage.

I completely understand and agree with your rant having watched most of the mark-ups.

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KQµårk 死神
Member

Exactly Bito. I just came past an article that said the mandate would only affect 2% of the population. That was my point when the so-called PO died. It too only affected a very small percent of the population in it’s last iteration. The real PO died six months before when they said it would not be available for people who had insurance, so it really was never an option for the vast majority of the population. People don’t have the intellectual curiosity or to be fair the time to study these issues.

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BourneID
Member

Impressive and necessary. You’ve taken a 2000 page monster and condensed it into a comprehensible selection of facts that connect cause to effect. I have never been able to sort through the “jumbalya” the press has made of this issue. Your selection of related subjects is excellent, particularly the stats from the Project for Excellence in Journalism, which pretty much uncovers the dismal truth about the loss of journalistic integrity in every media. We know nothing about the bill but we do know all about the fights.

What if? Excellent premise. What if you hadn’t written this.

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SallyT
Member

Murph, thank you for all this information. Very helpful. I personally think that some of the problem with all this is because so much of the benefits don’t kick in until 2014 and people haven’t experienced them yet. I have read that even people that say they are against the ACA and want it overturned still want Congress to keep the parts that have kicked in like keeping children on parents insurance plans until 26 and the pre-existing clause. These they have experience and like them. If they had have more of it and lived with it, I think there would be many more for it in its entirety. Not everyone was for Medicare when it was introduced but you will play hell in trying to get it away now. Yes, they are trying but that is a fight to be had and I don’t think they can even imagine the fight they will face!

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funksands
Member

Murph, good summary indeed. The answer to your main question: “Can the ACA survive without a mandate?” is the answer I was scanning around for this morning on the inter-tubes.

I ran across an article by Aaron Carroll. He is a Dr. and Vice-chair of health policy and outcomes at the University of Indiana Pediatrics Dept.

He also writes for the Incidental Economist (my fav. healthcare blog)

His piece talks specifically about the mandate and whether or not the ACA could survive. His take? Sure!

“We don’t need the mandate. What we need is something that helps us avoid adverse selection and the death spiral.

That could have been accomplished with a tax credit. Instead of penalizing those who don’t buy insurance, the government could have raised everyone’s taxes a bit and then returned a credit to those who bought insurance. This is totally constitutional and isn’t much different than the tax deduction many of us already enjoy by purchasing insurance.

The government could also set a waiting period for those who choose to opt out of the system. If they can’t get in until a number of years later, many people won’t want to take the chance they might get sick in the interim. They would be more likely to buy insurance.
The government could charge a penalty for those who choose to wait before buying insurance. This is how Medicare Part D works. It also incentivizes people to buy in right away, and it’s also perfectly legal.

Why weren’t these plans enacted instead? Well, for one reason, the mandate works better than penalties or waiting periods. The other reason is political. It was hard enough to pass the law without attaching a “tax.” So Congress went another way, and now it potentially pays the price.”

He goes on to say that all of this doesn’t matter anyway, because if it was the mandate that people actually cared about we could fix it. Instead the mandate is merely the portal to argue about the entire law.

Personally I think the SCOTUS will uphold the provision. I think some of Scalia and Alito’s past rulings are favorable to it, and I think Roberts is really worried about the taint of what Citizens United has meant for his court and will bend over backwards for a make-up call (as cynical as that sounds).

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KQµårk 死神
Member

Funk the law does that already. There are provisions to raise $1 trillion in the law half with taxes and half with Medicare inefficiencies. Those taxes will go directly to tax credits to buy insurance for millions of families.

I do agree you can skin the mandate cat other ways and still get the same results but a tax credit alone won’t do it. Otherwise people will only buy insurance when they need it like Murph said.

I view it this way you have a horizontal tube and if you don’t close both ends all the good stuff inside the tube spills out. That’s exactly why you have to make as many people as possible pay into the system with personal and employee mandates. Otherwise you can’t effectively cover people with preexisting conditions or offset people who game the system and still expect ER treatment when they know they are not going to pay their doctor bills.

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SallyT
Member

I thought that the ACA does not give anything on how to enforce a penalty, therefore, there really is no penalty. I thought that was a problem also for the SCOTUS to rule on because there is no penalty.

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funksands
Member

Sally, I’ve heard that wordsmithing before and quite honestly I don’t know if there is anything to it. All I know is that the Act specifically calls for a tax penalty of the greater of $95 in 2014 or 1% of income, with several exceptions for Native Americans, incarcerated individuals, religious objections, financial hardship, etc etc etc.

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SallyT
Member

Well, Funk, I guess they talked a little about this “penalty” today. I don’t know if anything was answered yet, tho. Is it a tax or is it not????

“The justices saw this seeming incongruity coming.”

Justice Samuel Alito Jr
“Today you are arguing that the penalty is not a tax,” Justice Samuel Alito Jr said. “Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”

Verrilli replied that he could not point to a case, but added that the Supreme Court has held in other cases that “something can be a constitutional exercise of the taxing power whether or not it is called a tax.”

http://www.medscape.com/viewarticle/760921?sssdmh=dm1.770736

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KQµårk 死神
Member

Excellent Summary Murph.

Getting everyone into the pool sharing the costs of the entire system is seen as the only way to keep costs down and maintain the insurance system.

Spreading the risk pool as much as possible is the ONLY way to start lowering healthcare costs and cover people with preexisting conditions. If there is not universal coverage even in a patchwork fashion there simply is no healthcare system at all.

Why is the Mandate essential? First, if we don’t require everyone to buy insurance, then insurance will be disproportionately purchased by those who need it, the likely sick, making it more expensive/unaffordable. This would lead many to discontinue coverage in a continuous cycle that drives the price higher and higher until no one but the very rich can afford insurance any more and the system collapses.
Second, if a person is not covered by health insurance then any bills he/she accrues must be paid by the individual. If he/she cannot pay the bills, then civil suits are one remedy. If there are insufficient assets for a suit to be successful, then the cost is either covered by the care giver (as a loss) or by the government (in direct aid to care givers).

Brilliant summary I wish Dems would explain this to the American public better. But then again it can’t be put in a bumper sticker.

The first reason you gave is why a high risk pool insurance is not a long term option either. It will soon become a money pit that will make Medicare look like chicken feed.

Along the lines of what you said in the second part of your explanation some kind of universal mandate is not severable for practical reasons. The big problem we have right now is we have a big part of the system mandated (even though it’s far from optimal), hospitals are mandated to provide healthcare regardless of insurance or ability to pay. This obviously is what led to our system being the most expensive system in the western world and the system with the poorest access.

If the law is struck down honestly the what ifs make my head ache. I think the implications would mean that we fall quicker to becoming a confederation of states instead of a union of states. Republicans have already proven they can stifle progress when they have some power. Now this means the GOP can stifle progress that has already been made by a Dem congress. Seriously especially if the GOP ever gets a 6-3 SCOTUS, SS and Medicare are next on their agenda to take down. Of course the biggest irony is the GOP’s medicare plan is to give coupons to seniors to buy private insurance. So for all practical purposes since EVERY senior needs medical coverage it’s a de facto mandate to buy private insurance stronger than the mandate in the ACA.

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