The Supreme Court held a surprise affirmation party for Obamacare today. Most pundits and experts had predicted the health insurance law would be overturned, and aren't enjoying the party very much. But the biggest surprise was the key vote in upholding the law, which came from Chief Justice John Roberts. Most observers of the court had perceived Roberts to be reliably conservative in the political sense. The Citizens United case (Citizens United v. FEC, 558 U.S. 50 (2010)) was regarded as a classic example of how Roberts and the four other conservative justices on the Supreme Court banded together to rule favorably for conservative interests, and unleash a torrent of business funding into the campaign process, most of which is going to Republican candidates.
In today's healthcare ruling, however, Roberts appeared to take a judicially conservative approach, finding a narrow ground to uphold the mandate for uninsured individuals to buy coverage and deferring to the policy judgments of the legislative branch, while explicitly avoiding any endorsement of them. Such displays of judicial restraint have seemingly fallen out of fashion at the Court. No doubt Roberts knows that public estimation of the Court has been falling as it has increasingly been seen as a political body. The perceived politicization of the Supreme Court has turned the judicial confirmation process for both Supreme Court justices and lower court judges into a hyper-paranoid brawl of an inquisition over every possible nuance of every statement, whether written or oral and without regard to remoteness in time, made by the nominee under any circumstances whatsoever. It's no wonder the judicial confirmation process is clogged, backlogged and bogged down. Nominees are no longer viewed as potential judges, but as potential tools to secure political gains.
Restoring the Supreme Court and the lower courts to their intended role as judicial forums would force politicians in Congress and the White House to take their jobs more seriously. They could no longer count on the courts to clean up messes they make. Possibly one reason why conservatives in Congress were so uncompromising about Obamacare is that they gambled the Court would smack it down if they couldn't. If they had understood the Court would show deference to the outcome of the political process, they might have engaged more seriously with the Democrats to fashion a compromise. Perhaps this is one message the Chief Justice meant to send. Certainly, if Obamacare had been struck down, some alternative more acceptable to conservatives would have been enacted to replace it, but then very possibly litigated by liberals and dumped back into the Supreme Court's lap. The Court might then have been placed in the position of fashioning America's health insurance policies. Roberts, as a judicial conservative, would surely not have wanted this.
The Supreme Court is the duck billed platypus of the democratic process, an oddly structured decisional body composed of unelected people with lifetime appointments who can make crucially important decisions based on whatever they individually believe to be right. While all of them purport to base their decisions on the Constitution, the flexibility of that document is copiously evidenced by the abundance of concurrences and dissents that blossom with each difficult decision. To maintain its legitimacy and effectiveness, the Court has to find and fulfill what each generation of citizens perceives as its proper judicial role. It must treat the Constitution as an organic organic (not a typo) document, with its meaning capable of changing and evolving as the needs and welfare of the nation require. For example, the meaning of the Commerce Clause, as interpreted in early New Deal cases, would not be conducive to today's federal economic regulatory structure, designed as it is to foster nationwide confidence in the regulated matters. Had that interpretation not changed with the times, we would probably be a poorer nation today.
Yet, the Court cannot reach so far that it appears to be stretching beyond the meaning of the words of the Constitution. Americans have a very high regard for the rule of law. This is not surprising, considering that the United States was not founded based on tribal or ethnic loyalties, or religious beliefs, or the imposition of sheer military power. It was founded by the voluntary congregation of former British colonies that depended greatly on the effective functioning of the Constitution to maintain their union and thus ensure their survival. Without the rule of law, the nation could fail (and almost did fail, twice). The Supreme Court has the task of constraining the other branches of the government, the states, and, indeed, itself to stay within their respective constitutional roles. Just as the Court has to stop Congress, the Executive Branch and the states from overreaching, it has to stop itself from overreaching.
Finding the right balance between judicial activism and judicial restraint is one of the most crucial challenges for every generation of justices, and especially every chief justice. The loudest sound you hear in the political blogosphere tonight is conservative teeth gnashing. But behind that, there is a faint of hum of legal scholars saying "hmmmmmmmmmm, maybe John Roberts will attain stature among the chief justices."
Showing posts with label Obama health insurance reform. Show all posts
Showing posts with label Obama health insurance reform. Show all posts
Thursday, June 28, 2012
Wednesday, March 7, 2012
America's Political Dichotomy
America's most salient political dichotomy isn't Democratic vs. Republican, liberal vs. conservative, or Tea Partier vs. Occupier. It's that most Americans talk conservative but act liberal. They don't like Big Government. But don't mess with their Social Security and Medicare benefits. They see themselves as sturdy, self-sufficient individuals. But, when things go badly, they turn to unemployment comp, food stamps, and COBRA and HIPAA rights to health insurance. They don't like regulations limiting their investment options. But they love federal deposit insurance. And when the stock market plummets, they expect the government to do something.
This dichotomy explains much of the results of the Republican primaries. Many Republicans love the conservative talk coming from Santorum, Gingrich and Paul. Americans are dreamers (other countries don't dedicate themselves to the pursuit of happiness). And the idealistic talk of Santorum, Gingrich and Paul is appealing to many. But larger numbers of Republicans understand that the pragmatic, nuanced approach taken by Romney paves the way to the political middle, where general elections are won. Major right wing government shrinkers won't beat Barack Obama, who angles for the political middle by diligently working the angles of the dichotomy: instigate major reform of health insurance, but take out Osama bin Laden; block the Keystone Pipeline, but talk tough to Iran; target the 1%, but keep open the prison for terrorists at Guantanamo Bay.
Forty-five years ago, the Republican Party understood this dichotomy very well. Richard Nixon, a candidate with a lot less charisma than Mitt Romney (imagine that), beat cheerful Hubert Humphrey by talking tough about crime, the North Vietnamese, the Soviets, and the Chinese, while treading lightly on the benefits government provided to the citizenry. Nixon's 1968 victory initiated a 24-year period of Republican domination of the White House. It wasn't until 1992, when Bill Clinton triangulated the traditional Democratic platform in a major shift toward the middle, that the Democrats again became competitive for the White House.
Now, Republicans have become more and more entangled in the conservative talk part of the dichotomy, and less observant of the need to make voters feel comfortable with them. The dichotomy could easily continue to bifurcate Republican primary results all the way to the Republican Convention. If so, Obama's chances for re-election will increase all the more.
This dichotomy explains much of the results of the Republican primaries. Many Republicans love the conservative talk coming from Santorum, Gingrich and Paul. Americans are dreamers (other countries don't dedicate themselves to the pursuit of happiness). And the idealistic talk of Santorum, Gingrich and Paul is appealing to many. But larger numbers of Republicans understand that the pragmatic, nuanced approach taken by Romney paves the way to the political middle, where general elections are won. Major right wing government shrinkers won't beat Barack Obama, who angles for the political middle by diligently working the angles of the dichotomy: instigate major reform of health insurance, but take out Osama bin Laden; block the Keystone Pipeline, but talk tough to Iran; target the 1%, but keep open the prison for terrorists at Guantanamo Bay.
Forty-five years ago, the Republican Party understood this dichotomy very well. Richard Nixon, a candidate with a lot less charisma than Mitt Romney (imagine that), beat cheerful Hubert Humphrey by talking tough about crime, the North Vietnamese, the Soviets, and the Chinese, while treading lightly on the benefits government provided to the citizenry. Nixon's 1968 victory initiated a 24-year period of Republican domination of the White House. It wasn't until 1992, when Bill Clinton triangulated the traditional Democratic platform in a major shift toward the middle, that the Democrats again became competitive for the White House.
Now, Republicans have become more and more entangled in the conservative talk part of the dichotomy, and less observant of the need to make voters feel comfortable with them. The dichotomy could easily continue to bifurcate Republican primary results all the way to the Republican Convention. If so, Obama's chances for re-election will increase all the more.
Tuesday, February 1, 2011
Will the Federal Courts Pave the Way for Single-Payer National Health Insurance?
The score over the constitutionality of last year's federal health insurance reform is 2 - 2. Two federal courts have ruled it's constitutional and two more have decided that at least part of it isn't. The feature on which disapproving judges focused is the requirement beginning in 2014 that the uninsured buy individual coverage. The government contends that this requirement is permitted by the Constitution's Commerce Clause (which allows Congress to regulate matters affecting interstate commerce). Opponents assert that the law purports to regulate inaction--being uninsured--and that inaction isn't commerce.
Proponents respond that life is more complicated than that. As a society, we don't toss the uninsured in the gutter, to die slow, painful, lingering deaths. Instead, they are treated, and if they can't pay cash (which is very often the case), the cost of their care is borne by the rest of us in the forms of higher hospital charges, larger co-pays and deductibles, and steeper health insurance premiums. This imposition of costs on paying patients has interstate impact, and consequently allows federal health insurance reform under the Commerce Clause, proponents contend.
The final word on constitutionality rests with the U.S. Supreme Court. Given the split among lower courts, the Supremes will almost surely take the issue. Predicting the weather is easier than figuring out how the Supremes will rule.
It's interesting to consider that, if the Big Court gives the new law a thumbs down, it may well pave the way for a single-payer national health insurance system. Even if a federal requirement for an individual to buy health insurance goes beyond Congress' constitutional authority, a taxpayer funded single-payer, comprehensive national health insurance program would surely be constitutional. We already have such a system for Americans 65 and older (it's called Medicare), and another such system for many with low incomes (called Medicaid).
Today's Republican controlled House would strenuously resist a single-payer system. But the naysayers have no serious alternative. The baseline problem for Republicans (and those Democrats who voted against last year's health insurance reform) is that no one, not conservatives, moderates or liberals, want the system we had before last year's reform. That "system," with its hodge-podge, hit-or-miss, luck of the draw "coverage," left tens of millions uninsured, tens of millions more underinsured, and numerous Americans going without treatment until their problems became severe enough for an emergency room visit, where others (i.e., the insured) would pick up the high costs of the uninsureds' care. If last year's reform is tossed out by the courts, there will be enormous political pressure for an alternative. The Republicans, who have been singularly feckless in improving the health insurance system, will find themselves losing favor with an electorate struggling for coverage. This is one issue where the party of No will have to rethink its message. Reality is that we'll have health insurance reform one way or another, if not now, then pretty soon.
Last year's health insurance reform was a rather complex political compromise designed to make Americans face a simple fact of health insurance: it's fairest and most sensible when everyone contributes to the cost. (That's why state laws require all motor vehicles to be insured.) If last year's reform doesn't survive judicial review, a single-payer national health insurance system may be the one alternative sure to withstand constitutional challenge. Other alternatives would be much more complex, and therefore exposed to legal challenge (when it comes to the law, complexity begats litigation and simplicity tends to avoid it).
Many taxpayers may not like a comprehensive, single-payer system because of fears of rising costs. But those rising costs are already smacking those of us who are insured, through our premiums, co-pays and deductibles. The rising costs are less a function of the insurance system we have than of expensive advances in medical technology and the extensive care sometimes given the very elderly. Dealing with these issues involves difficult ethical questions, but leaving people uninsured won't solve these problems.
A ruling against last year's reform will likely limit Congress' options for the structure of a replacement program. It won't persuade voters to accept a return to the Dickensian grimness of the status quo ante. If last year's reform is struck down, the single-payer national program may well rise up from last year's ashes. This probably wouldn't be what the federal judges ruling against the reform intend, but we often get what we don't intend.
Proponents respond that life is more complicated than that. As a society, we don't toss the uninsured in the gutter, to die slow, painful, lingering deaths. Instead, they are treated, and if they can't pay cash (which is very often the case), the cost of their care is borne by the rest of us in the forms of higher hospital charges, larger co-pays and deductibles, and steeper health insurance premiums. This imposition of costs on paying patients has interstate impact, and consequently allows federal health insurance reform under the Commerce Clause, proponents contend.
The final word on constitutionality rests with the U.S. Supreme Court. Given the split among lower courts, the Supremes will almost surely take the issue. Predicting the weather is easier than figuring out how the Supremes will rule.
It's interesting to consider that, if the Big Court gives the new law a thumbs down, it may well pave the way for a single-payer national health insurance system. Even if a federal requirement for an individual to buy health insurance goes beyond Congress' constitutional authority, a taxpayer funded single-payer, comprehensive national health insurance program would surely be constitutional. We already have such a system for Americans 65 and older (it's called Medicare), and another such system for many with low incomes (called Medicaid).
Today's Republican controlled House would strenuously resist a single-payer system. But the naysayers have no serious alternative. The baseline problem for Republicans (and those Democrats who voted against last year's health insurance reform) is that no one, not conservatives, moderates or liberals, want the system we had before last year's reform. That "system," with its hodge-podge, hit-or-miss, luck of the draw "coverage," left tens of millions uninsured, tens of millions more underinsured, and numerous Americans going without treatment until their problems became severe enough for an emergency room visit, where others (i.e., the insured) would pick up the high costs of the uninsureds' care. If last year's reform is tossed out by the courts, there will be enormous political pressure for an alternative. The Republicans, who have been singularly feckless in improving the health insurance system, will find themselves losing favor with an electorate struggling for coverage. This is one issue where the party of No will have to rethink its message. Reality is that we'll have health insurance reform one way or another, if not now, then pretty soon.
Last year's health insurance reform was a rather complex political compromise designed to make Americans face a simple fact of health insurance: it's fairest and most sensible when everyone contributes to the cost. (That's why state laws require all motor vehicles to be insured.) If last year's reform doesn't survive judicial review, a single-payer national health insurance system may be the one alternative sure to withstand constitutional challenge. Other alternatives would be much more complex, and therefore exposed to legal challenge (when it comes to the law, complexity begats litigation and simplicity tends to avoid it).
Many taxpayers may not like a comprehensive, single-payer system because of fears of rising costs. But those rising costs are already smacking those of us who are insured, through our premiums, co-pays and deductibles. The rising costs are less a function of the insurance system we have than of expensive advances in medical technology and the extensive care sometimes given the very elderly. Dealing with these issues involves difficult ethical questions, but leaving people uninsured won't solve these problems.
A ruling against last year's reform will likely limit Congress' options for the structure of a replacement program. It won't persuade voters to accept a return to the Dickensian grimness of the status quo ante. If last year's reform is struck down, the single-payer national program may well rise up from last year's ashes. This probably wouldn't be what the federal judges ruling against the reform intend, but we often get what we don't intend.
Thursday, April 1, 2010
Benefits of Federal Health Insurance Reform
2010's federal health insurance reform includes a wide-ranging panoply of programs, credits and other measures. Folks currently covered by employer sponsored health insurance plans won't experience much immediate change. But over the next year and later, they'll see improvements.
Those having trouble getting coverage will find the new law a big improvement. The recent legislation isn't Internet-friendly--it can't be summarized to two paragraphs or less. But there are a number of provisions that could soon change things for millions of Americans. Here they are, with those taking effect sooner listed first.
Small Business Tax Credit. Small businesses may get a tax credit of as much as 35% of their employee health insurance premiums, depending on how large they are, starting immediately and running through 2013. Small, in this case, means small (as in no more than the equivalent of 25 full-time employees). These companies, which may number as many as 4 million, are perhaps the most likely not to offer health insurance to employees, so the credit could bring more people under the umbrella of employer-sponsored coverage. The credit will increase to 50% of premiums beginning in 2014 and is available for any two consecutive years at the 50% level.
Closing the Medicare D Doughnut Hole. Those covered by Medicare D policies who in 2010 hit the gap in coverage called the "doughnut hole" will be eligible for a $250 rebate. Beginning in 2011, a 50% discount (instead of the rebate) will be available for prescriptions filled in the doughnut hole. The doughnut hole will be closed in 2020.
Federal High Risk Pool. By the end of June, 2010, a federal high risk insurance pool will become available for persons with pre-existing conditions who are having trouble getting coverage otherwise. This pool is temporary, and will operate until federally established health insurance exchanges provide a permanent source of coverage beginning in 2014. At that point, persons with pre-existing conditions can purchase health insurance through the exchanges or some other way, such as individually acquiring coverage. You can more information and application options at https://www.pcip.gov/.
Federal Assistance for Employers Covering Early Retirees. By the end of June 2010, a temporary federal program will begin offering reinsurance to employers providing early retirees (i.e., those between the ages of 55 and 64) with health insurance during retirement. Reinsurance is an indirect way of subsidizing retiree health insurance coverage, and should make it easier for employers to maintain coverage for early retirees. (Retirees 65 and older are eligible for Medicare coverage, so the reinsurance program doesn't extend to them.) The reinsurance program will be superseded in 2014 by the health insurance exchanges.
No More Punishing the Sick. Just as banks are notorious for denying credit to those who need it the most, sometimes insurance companies drop customers because they fall ill. Beginning at the end of September 2010, insurance companies will be prohibited from engaging in this practice. Some Tiny Tims will enjoy Christmas early this year when their Scrooge-like health insurers can no longer ax them.
Children Under 19 Cannot Be Turned Down for Pre-existing Conditions. By the end of September 2010, insurers won't be able to turn down children under 19 because of pre-existing conditions. (By 2014, insurers won't be allowed to turn anyone down for pre-existing conditions.) The high risk pool mentioned above could cover children who aren't protected by this provision.
Young Adult Dependents Up to Age 26 Can Be Covered by Parents. By the end of September 2010, young adults up to age 26 who are dependents of their parents will be eligible for coverage under their parents' policies (unless they live in a state that mandates coverage to an older age, such as 28 or 29).
No Lifetime Caps on Coverage. By the end of September 2010, insurers won't be allowed to impose lifetime limits on coverage.
Phaseout of Annual Limits on Coverage. By the end of September 2010, insurers will face greater restrictions on their ability to place annual limits on coverage. By 2014, annual limits will be eliminated.
Free Preventive Care. By the end of September 201o, new private insurance plans will have to cover preventive care without co-pays or deductibles. Beginning in 2011, Medicare will provide the same free preventive care coverage.
Increased Funding for Community Health Centers. Beginning in October 2010, community health centers--clinics that provide primary care to mostly low income patients--will receive increased federal funding in order to almost double over the next five years the number of patients they treat. This should help alleviate the shortage of primary care throughout much of America.
Independent Appeals Process. By the end of September 2010, new health plans will be required to have independent appeals processes for customers denied claims or coverage. This could be very important if you or a family member have a major health issue.
This year's health insurance reform affects many other aspects of the health care system, and will be implemented over the next decade or so. A more permanent system with health insurance exchanges should be in place by 2014. The number of primary care practitioners should increase. The patchwork health insurance system of the past will gradually be phased down, and near universal coverage should result from the federal programs. In the meantime, if you want information about current health insurance resources, take a look at http://blogger.uncleleosden.com/2007/06/how-to-find-health-insurance.html. Illegal immigrants cannot participate in the federally sponsored system, and may have to fall back on the remnants of the old health care system. This limitation is understandable from a political standpoint. However, if an illegal immigrant has, for example, tuberculosis, meningitis or some other transmissible illness, we all benefit if that person gets good health care.
Those having trouble getting coverage will find the new law a big improvement. The recent legislation isn't Internet-friendly--it can't be summarized to two paragraphs or less. But there are a number of provisions that could soon change things for millions of Americans. Here they are, with those taking effect sooner listed first.
Small Business Tax Credit. Small businesses may get a tax credit of as much as 35% of their employee health insurance premiums, depending on how large they are, starting immediately and running through 2013. Small, in this case, means small (as in no more than the equivalent of 25 full-time employees). These companies, which may number as many as 4 million, are perhaps the most likely not to offer health insurance to employees, so the credit could bring more people under the umbrella of employer-sponsored coverage. The credit will increase to 50% of premiums beginning in 2014 and is available for any two consecutive years at the 50% level.
Closing the Medicare D Doughnut Hole. Those covered by Medicare D policies who in 2010 hit the gap in coverage called the "doughnut hole" will be eligible for a $250 rebate. Beginning in 2011, a 50% discount (instead of the rebate) will be available for prescriptions filled in the doughnut hole. The doughnut hole will be closed in 2020.
Federal High Risk Pool. By the end of June, 2010, a federal high risk insurance pool will become available for persons with pre-existing conditions who are having trouble getting coverage otherwise. This pool is temporary, and will operate until federally established health insurance exchanges provide a permanent source of coverage beginning in 2014. At that point, persons with pre-existing conditions can purchase health insurance through the exchanges or some other way, such as individually acquiring coverage. You can more information and application options at https://www.pcip.gov/.
Federal Assistance for Employers Covering Early Retirees. By the end of June 2010, a temporary federal program will begin offering reinsurance to employers providing early retirees (i.e., those between the ages of 55 and 64) with health insurance during retirement. Reinsurance is an indirect way of subsidizing retiree health insurance coverage, and should make it easier for employers to maintain coverage for early retirees. (Retirees 65 and older are eligible for Medicare coverage, so the reinsurance program doesn't extend to them.) The reinsurance program will be superseded in 2014 by the health insurance exchanges.
No More Punishing the Sick. Just as banks are notorious for denying credit to those who need it the most, sometimes insurance companies drop customers because they fall ill. Beginning at the end of September 2010, insurance companies will be prohibited from engaging in this practice. Some Tiny Tims will enjoy Christmas early this year when their Scrooge-like health insurers can no longer ax them.
Children Under 19 Cannot Be Turned Down for Pre-existing Conditions. By the end of September 2010, insurers won't be able to turn down children under 19 because of pre-existing conditions. (By 2014, insurers won't be allowed to turn anyone down for pre-existing conditions.) The high risk pool mentioned above could cover children who aren't protected by this provision.
Young Adult Dependents Up to Age 26 Can Be Covered by Parents. By the end of September 2010, young adults up to age 26 who are dependents of their parents will be eligible for coverage under their parents' policies (unless they live in a state that mandates coverage to an older age, such as 28 or 29).
No Lifetime Caps on Coverage. By the end of September 2010, insurers won't be allowed to impose lifetime limits on coverage.
Phaseout of Annual Limits on Coverage. By the end of September 2010, insurers will face greater restrictions on their ability to place annual limits on coverage. By 2014, annual limits will be eliminated.
Free Preventive Care. By the end of September 201o, new private insurance plans will have to cover preventive care without co-pays or deductibles. Beginning in 2011, Medicare will provide the same free preventive care coverage.
Increased Funding for Community Health Centers. Beginning in October 2010, community health centers--clinics that provide primary care to mostly low income patients--will receive increased federal funding in order to almost double over the next five years the number of patients they treat. This should help alleviate the shortage of primary care throughout much of America.
Independent Appeals Process. By the end of September 2010, new health plans will be required to have independent appeals processes for customers denied claims or coverage. This could be very important if you or a family member have a major health issue.
This year's health insurance reform affects many other aspects of the health care system, and will be implemented over the next decade or so. A more permanent system with health insurance exchanges should be in place by 2014. The number of primary care practitioners should increase. The patchwork health insurance system of the past will gradually be phased down, and near universal coverage should result from the federal programs. In the meantime, if you want information about current health insurance resources, take a look at http://blogger.uncleleosden.com/2007/06/how-to-find-health-insurance.html. Illegal immigrants cannot participate in the federally sponsored system, and may have to fall back on the remnants of the old health care system. This limitation is understandable from a political standpoint. However, if an illegal immigrant has, for example, tuberculosis, meningitis or some other transmissible illness, we all benefit if that person gets good health care.
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