A few remarkable sentences in the Eleventh Circuit’s health care decision

[ProSense]

A few remarkable sentences in the Eleventh Circuit’s health care decision

A few remarkable sentences in the Eleventh Circuit’s health care decision

Andrew Koppelman

I haven’t much to add to Mark Hall’s fine map of the contradictions in the Eleventh Circuit’s opinion holding that the health care mandate is unconstitutional. The constitutional objections are silly, for reasons I’ve explained elsewhere. But it is worth noting a few remarkable moves buried in the verbose, 207-page opinion.

Opponents of the mandate must reckon with the Supreme Court’s very recent, repeated declaration that Congress may regulate even local, noneconomic behavior when such regulation is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Gonzales v. Raich, 545 U.S. 1, 23-24 (2005) (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)). The district judge in the case below had found that “the individual mandate is absolutely ‘necessary’ and ‘essential’ for the Act to operate as it was intended by Congress.” That seems to be the end of the inquiry: if Congress can require insurers to take even those with preexisting conditions, and adverse selection means that insurance markets will unravel without a mandate, then the mandate is necessary to the regulatory scheme.

The joint opinion of Judges Dubina and Hull responds by declaring that it is none of Congress’s business if people go without insurance and transfer their health care costs to others: “An individual’s uninsured status in no way interferes with Congress’s ability to regulate insurance companies.” (slip op. 164) This presumes that Congress is indifferent to the consequences of its regulatory scheme: it just likes to regulate insurance companies. Congress’s declared aim in the statute, however, is to reduce the number of the uninsured. Without the mandate, the law’s protection of people with preexisting conditions would mean that healthy people could wait until they get sick to buy insurance. Because insurance pools rely on cross-subsidization of sick people by healthy participants, that would bankrupt the entire health insurance system. The individual mandate charges those people for at least some of the costs they impose on their fellow citizens. The joint opinion presupposes that these catastrophic effects are irrelevant to the regulatory scheme.

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Oddly, the opinion also complains about the statute’s “toothless enforcement mechanisms” (166): the penalty isn’t big enough (reaching a maximum of $695 per person in 2016, see p. 46) and isn’t imposed with criminal penalties or liens, so it can only offset any tax refund owed to the uninsured person. The court is right that the penalty is pretty mild, probably too mild to accomplish what it aims to accomplish. By what logic, though, can this be relevant to the question of Congressional power? Would the mandate be constitutional if the enforcement provisions were nastier?

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[midnight]

1. This is worrisome-"Would the mandate be constitutional if the enforcement provisions were nastier"

[ProSense]

2. Yes, that

pretty much indicates that the majority opinion was BS!

[eridani]

7. Nasty = exactly what other countries have that use private insurance for universal health care

So yes, I think it would be. The governments of France, Germany, the Netherlands, etc, dictate insurance policy. For public utilities, public ownership is best, but strict regulation of private utilities certainly works well too. Leave out the regulation and you get the Enrons of the world fucking over consumers. Same for health insurance--there is NOTHING resembling actual regulation in HCR.

[greymattermom]

3. if people don't have to have insurance

then how can hospitals have to treat them? Aren't they both mandates? Without insurance, you should have to post bail if you go to the ER. Hospitals are corporations and corporations are people, right? How can the mandate hospitals to treat people without mandating people to buy insurance?

[Schema Thing]

4. .

[Supersedeas]

5. again, the importance of Judicial Appointments could not be made more clear

these judges don't have to be reasonable or logical or even avoid contradiction.

All they have to do to satisfy the RW Corporate masters is hand down ruling that give victories and reward the RW Corporate Masters.

It is no longer about LAW, JUSTICE or REASON, it is ONLY a matter of winning and this wins make a difference to the corporate bottom line.

[lumberjack_jeff]

6. The penalty is too small to penalize, and penalties unlike taxes are unconstitutional.

But it's not a tax, it's simply a really small penalty.

How does one become a federal judge? :crazy: