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Entries in ObamaCare (2)

Monday
Apr022012

The Possibility of a Nuanced Ruling

Most media focused last week on oral arguments before the U.S. Supreme Court on the controversial federal health insurance mandate for individual Americans. However, justices also heard arguments on other aspects of the legal challenge to what has become known as ObamaCare that could lead to a more nuanced decision and perhaps even more complexity for states.

Justices listened to arguments on whether the constitutional challenge of the individual mandate is ripe because it hasn't gone into effect yet. Commentators expressed doubt the court would effectively punt a big decision for this reason. They also considered the severability of the federal health care reform act. They wanted to know if voiding the individual mandate would void the popular ban on excluding health insurance because of pre-existing conditions. 

A ruling isn't expected until late June, which will allow for a lot of media speculation, political bombast and unease by state officials who will play a key role in implementing health care reform in whatever form it survives from the court case.

Based on the intense questioning by justices and the balky performance of the U.S. attorney arguing the government's case, you could easily conclude the federal individual health insurance mandate is in trouble. The court seems clearly split, but the split echoing from the questioning suggests at best a 5-4 rejection of the mandate.

However, the mandate underpins a grander bargain. Creating the largest possible pool of people with health insurance coverage gives health insurers the ability to absorb and spread costs, including from new insureds who may be combating cancer or suffering from a chronic disease. Dispatching the mandate could put even more pressure on health insurance premiums, which are continuing to rise. That, in turn, could erode the quality of existing employer-provided health insurance and, in some cases, cause employers to drop coverage for employees altogether.

The unspoken part of the story crowded out by commentary on the mandate is what happens if we return to the status quo before Congress approved ObamaCare. The truth is, that status quo has disappeared. 

  • The exclusion of pre-existing conditions and expansion of family coverage to children up to age 26 are very popular provisions, which few would want to lose — especially in an election year.

  • Many employers facing stiff domestic and international competition are looking for ways to trim their health insurance costs. One way is to hire temporary workers without benefits.

  • The public safety net has more holes in it, as Medicaid participation has been limited and funding cut for public health care clinics.

  • Heath care technology continues its steady march ahead, opening new diagnostic and treatment options and adding more costs.

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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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