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Entries in individual mandate (2)

Monday
Jul092012

Is Health Mandate Liberal or Conservative? 

Following the U.S. Supreme Court's somewhat surprising ruling to uphold the Affordable Care Act, discussion now centers on a political verdict this November. Presumptive GOP presidential nominee Mitt Romney says he will recommend repeal on his first day in office.

If Romney has Republican majorities in the U.S. House and Senate, he may get his wish. The GOP majority in the House is voting today for the 31st time to repeal the act, which is a non-starter in the Democratically controlled Senate.

The venom over ObamaCare voiced in talk show commentary, letters to the editor and Republican speeches seems oddly out of touch with the history of the Act's most controversial provision — the individual health insurance mandate.

The idea emerged from the Heritage Foundation in 1989, which linked the mandate to its conservative political philosophy of individual responsibility. Early supporters included Utah Senator Orrin Hatch and then-Massachusetts Governor Mitt Romney. The 2006 Massachusetts universal health care law includes an individual health insurance mandate.

San Francisco Chronicle writer Debbie Saunders commented, "Mitt Romney, the former Massachusetts governor, the party’s all-but-certain nominee, is the only Republican in the country who imposed a health care plan with an individual mandate on his state. Romney used to call the provision 'the ultimate conservative idea,' as it told citizens that they’d get government help only if they couldn’t afford to take care of themselves. Team Obama is so smitten with Romney’s past that White House aides often credit Romney with coming up with the template for ObamaCare."

So how did an idea with such strong conservative appeal turn into anathema among conservatives? Ezra Klein, writing in The New Yorker, attributed it to politics. Republicans hated to see Obama score a major political victory.

However, a deeper analysis suggests many Republicans — and a fair number of Democrats — grew worried that achieving universal access without significant health care cost controls would push the price of health care up, not down. The Los Angeles Times reported in 2009 that the individual health care mandate without cost controls would "add up to higher costs for taxpayers and consumers."

The cost of health care is a concern shared widely over the political spectrum. It is likely to become the next battleground, regardless of whether the Affordable Care Act remains in place or not.

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Friday
Mar232012

Retired Law School Dean Reflects on Ruling

Symeon Symeonides pondered a moment, then said he had no idea how the U.S. Supreme Court would rule on the constitutionality of the Obama health care law, especially the individual mandate requiring every citizen to have health insurance. The high court will hear arguments in the case next week.

An internationally renowned constitutional law scholar, as well as one of Salem's best-kept secrets, Symeonides said it might be easier for states like Oregon to impose a health insurance buying mandate than for the federal government to do so. After all, he said, Massachusetts passed a mandate a few years ago and it appears to be working — though Republican presidential candidate and former Massachusetts governor Mitt Romney would rather kick the issue to the background. 

Symeonides and I, along with Willamette Law School's development director, Mike Bennett, sat down for a drink last week to reflect on the Supreme Court case, which stands to be one of the most significant in years, perhaps even rivaling the abortion or desegregation decisions. It was only about a week before Symeonides headed off to Brussels, where he will be working for several months to advise the European Union on how to draft a new constitution.

If states found the political wherewithal to impose an individual mandate — and Symeonides, ever an astute observer of political winds, thinks that could be a tall order — it might be easier legally because it wouldn't run up against the U.S. Constitution's commerce clause. Under Article 1, the clause gives Congress "the power to regulate commerce with foreign nations and among the several states, as well as Indian tribes."  The outcome of the court case rests, at least in part, on how current justices interpret the commerce clause and whether regulating commerce "among the several states" allows for an individual health insurance mandate.

The New York Times published an article last week, with the headline,  "At Heart of Health Law Clash, a 1942 Case of a Farmer's Wheat."

"If the Obama Administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn."

Seems that Mr. Filburn sued to overturn a 1938 law that told him how much wheat he could grow on his property and imposed a penalty on him if he grew too much. The Court ruled against Mr. Filburn, and that ruling serves as the pivot for what the justices will begin considering next week. The Times says interpretations of the Filburn case may form the basis for decisions by the two current-day justices who are considered the swing votes in this case, Anthony Kennedy and Antonin Scalia.

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