Atlanta Appeals Court Crushes Obamacare Argument
The Market Ticker ® - Commentary on The Capital Markets
Posted 2011-08-13 15:52
by Karl Denninger
in Health Reform
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Atlanta Appeals Court Crushes Obamacare Argument
 

This decision is one of the best - and most-expansive - I've seen on the matter of health care and the "individual mandate."

The Court has struck the individual mandate, but decided against enforcing non-severability - a result that I found somewhat surprising, given the congressional record.  However, this ruling, assuming it is upheld, will end Obamacare anyway, since should the remainder of the law stand it will destroy the private health insurance marketplace - an outcome that is at least as good in the end analysis as just striking the entire law.

Let's look at some of the points raised:

As a preliminary matter, we recount what the record reveals regarding the cost-shifting effects of the uninsured. To the extent the data show anything, the data demonstrate that the cost-shifters are largely persons who either (1) are exempted from the mandate, (2) are excepted from the mandate penalty, or (3) are now covered by the Act’s Medicaid expansion.

Yep. Illegal aliens cost-shift like crazy - from them to you and I.  But none of them are required to buy insurance.  Low income persons also are exempted, as they are covered by either Medicare or exempt from the penalty.  Further, those with pre-existing conditions who were denied coverage no longer can be denied, so they disappear from the impacted segment as well!

Who's left?  Healthy persons who forego purchasing insurance.  In other words, the government penalizes you for being of normal weight and taking care of yourself.  If you do so and by doing so decide you do not need to purchase this medical insurance, you are forced to either become sick or pay a penalty!

That's just a bit backward, don't you think?

The court also rejected the mandate on the principle of federalism.  This is an important finding, for it is one of the few decisions I've seen of late that recognize the inherent distinction between federal and state regulatory power.  In fact, this is exactly what our founders intended - 50 "laboratories" in which one could choose to live, and should one not like the outcome in one of those laboratories of government they could move and enjoy the experience of pleasure (or pain) in a different one!

Federalism is at the core of a limited federal government with most regulatory activity taking place in the States.  It has been lost over the decades, and as such it is vitally refreshing to see this argument raised "front and center" in the Obamacare litigation chain - and defended by the 11th Circuit.

As the court found:

For these reasons, we conclude that the individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975-page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.

It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, Congress “has never required people to buy any good or service as a condition of lawful residence in the United States.” CBO MANDATE MEMO, supra p.115, at 1. Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption—past, present, or in the future. Rather, the mandate is to buy insurance now and forever.  The individual mandate does not wait for market entry.

Because the Commerce Clause is an enumerated power, the Supreme Court’s decisions all emphasize the need for judicially enforceable limitations on its exercise. The individual mandate embodies no such limitations, at least none recognized by extant Commerce Clause doctrine. If an individual’s decision not to purchase an expensive product is subject to the sweeping doctrine of aggregation, then that purchase decision will almost always substantially affect interstate commerce.The government’s five factual elements of “uniqueness,” proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory. The government’s fact based criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.

Have a nice day Obamacare....

 

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User Info Atlanta Appeals Court Crushes Obamacare Argument in forum [Market-Ticker]
Erbo
Posts: 126
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Karl wrote..
However, this ruling, assuming it is upheld, will end Obamacare anyway, since should the remainder of the law stand it will destroy the private health insurance marketplace...
And thereby "force" the government to step in and "save health care" with a massive government-run single-payer system ala Canada or Europe...which is what the libbies wanted all along!

See, they knew they didn't have the votes for a single-payer system, so Obamacare was a compromise...albeit one designed to, eventually, make it so tough for private insurers to continue to do business that, one by one, they would pack up and exit the business, forcing the outcome they really wanted (and all the drawbacks it entails).

Striking down the individual mandate, without eighty-sixing the rest of the Obamacare law, just makes that process happen faster. This decision has "Pyrrhic victory" written all over it.

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"There is a ready solution for anyone on the public payroll who feels that he is not paid enough: He can resign and work for a living. This applies with equal force to Congressmen, Welfare 'clients,' school teachers, generals, garbage collectors, and judges." - Ira Johnson
Drench
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smiley
1lumpor2
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Quote:
since should the remainder of the law stand it will destroy the private health insurance marketplace


That is the long term goal and point of Obamacare.




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-- Done

Genesis
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Erbo, I disagree.

There are two acceptable resolutions to the health care mess:

1. Dismantling all of the anti-competitive crap that currently is in Health Care, thereby causing pricing to collapse to that which can actually be paid, as opposed to the leveraged bull**** games played now.

2. A single-payer system much like Canada has.

Either way the game's over. I VASTLY prefer #1, but I'll accept #2.

What I won't accept is the anti-competitive crap protected and enhanced by the government's shotgun up my *******.

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What part of "shall not be infringed" was unclear?
Erbo
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If you think having a single-payer government-run system is a good thing, you need to talk to my ex-wife.

She's been living under just such a system in Finland for the past several years, and she has a number of chronic medical conditions that need to be treated on an ongoing basis, including pancreatitis, asthma, and Lyme disease. I have lost count of the number of times she's complained to me about the socialized medicine system...how she can't get the drugs she needs for her conditions, how it takes so long for her to even get an appointment to see a physician, how one physician was convinced she was "faking it" and threatened to commit her to a mental hospital!

As far as I'm concerned, she's lucky she's not DEAD by now. And Finland's system is not the limit of the depths to which socialized medicine can sink (think British NHS).

You may argue that she chose to go there and live under such a system. That's a fair point, and it's true. But I DIDN'T!

Like you, Karl, I vastly prefer your Option #1. However, I strongly suspect that we'll get Option #2 shoved down our throats, whether we want it or not. And then we'll all wind up like my ex-wife.

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"There is a ready solution for anyone on the public payroll who feels that he is not paid enough: He can resign and work for a living. This applies with equal force to Congressmen, Welfare 'clients,' school teachers, generals, garbage collectors, and judges." - Ira Johnson
Widgeon
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Quote:
The government’s five factual elements of “uniqueness,” proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory.



Take That "constitutional scholar" TOTUS.
O.jeff
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"1. Dismantling all of the anti-competitive crap that currently is in Health Care, thereby causing pricing to collapse to that which can actually be paid, as opposed to the leveraged bull**** games played now."

Health care is going to be expensive no matter what you do. It involves costly and protracted training by the practitioners, high technology, extensive quality systems, hands-on personal delivery of services (no manufacturing "scale up" of efficiencies), risk/liability, etc.

"2. A single-payer system much like Canada has."

It is commonly believed that a universal-payer system is required to provide universal financing of health care. That is not true. On my first post to the Ticker Forums, I described the following health care financing system. It does not suffer from the legal pitfalls of Obama Care, yet accomplishes his desired end goal (universal health care). It also would accomplish many of the goals you seek.

Simple Health Care Financing System
===================================

The following is a "thought experiment". I noticed that most people who promote universal health care seem to think that it requires a single-payer (government) to pay for all health care. Below is an alternative system that preserve many aspects of a free market--yet removes the government from the doctor-patient relationship. Some may find this more acceptable than a Canadian single-payer system, for example.

A simple health care plan for the U.S.:
* Each person is required to put 15% of his or her income into a health savings account.
* All health care spending comes from this account.
* If a charge to your health care account is larger than your balance, then your account balance goes negative. This is effectively a federal health care loan.
* When your account balance is negative, 20% of your income is deducted from your income until your account balance is positive again.
* The money in this account is your money. When you die, any positive balance is passed on in your estate. If you have a negative balance, your assets (if any) must first pay off any negative balance in your health care account.
* If you have insufficient assets to pay off your negative balance at death, then the balance is "written off." (see additional points)

Additional points:
* This program replaces all government health care programs, including Medicare and Medicaid. The taxes for these programs would be eliminated.
* Most employers would probably stop offering health insurance as a job benefit. This would free every private employer of this burden and the cost it levies on them. This makes U.S. businesses more competitive.
* The payment for health care services would be immediate and swift using a debit-like card--like using a credit card at Wal-Mart. However, providers would be required to retain records about the transaction for a period of time to allow audits for fraud.
* All of the people who are presently employed in medical offices and hospitals to fight insurance companies could be repurposed into actually providing health care services. An enormous gain in productivity.
* People would largely be spending their own money, and thus, they will be more careful about how it is spent. (With today's third party payment of medical expenses, there is little reason for a person to try to spend less.)
* Doctors might get tired of answering the question "How much does this cost?" but the question will be coming from their patient, right in front of them, rather than some nameless guy at an insurance company.
* Cost shifting already happens when non-insured/indigent go to a hospital for treatment. This plan simply makes it very transparent. These people will carry a negative balance funded by all of us. The hospitals would not have to cost shift, and so their prices should become more reasonable immediately.
* The health savings account would be for legitimate health care spending only. Fraud would be very strictly punished--both on the side of the provider and consumer.
* Health care products and services typically covered by an employer-sponsored plan would be eligible.
* Dependents would be paid for out of their guardian's accounts.
* 15% would be a minimum. You could deduct more if you want.
* The 15/20% is taken from your paycheck pre-tax.
* There would be a maximum account balance per dependent. For example, the maximum account balance might be $200,000 plus $50,000 per dependent. (When this limit is reached, no salary deduction would be required.)
* Funds would be deposited in FDIC/NCUA insured bank accounts. You would get to pick the institution. I would likely pick a local credit union.

Other points:
* I think we should probably include in this plan a sales tax on medical care and services to pay for indigent care (those who die with negative balance). This tax should cover whatever our generation is predicted to cost in indigent care. It might be 3-5%??
* Private health insurance would be largely eliminated. However, insurance companies might provide "negative balance" insurance. That is, when you die with a negative balance, the insurance would payoff your balance. This would avoid an asset sale when a spouse dies first, for example.
Maddog
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I think we need to try different approaches in several states for a five year trail run,Then choose what works best out of each system.Also allow interstate purchases in the mean time as well as tort reform.

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Inkt2002
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So it there now a 100% chance that Obamacare never gets implemented?


Widgeon
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Quote:
Health care is going to be expensive no matter what you do. It involves costly and protracted training by the practitioners, high technology, extensive quality systems, hands-on personal delivery of services (no manufacturing "scale up" of efficiencies), risk/liability, etc.



There is NO REASON for it to cost roughly 2x here as compared to other comparable countries ... except here legalized theft is OK.
Widgeon
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Quote:
Each person is required to put 15% of his or her income into a health savings account.



Elsewhere in the world, 8-10% of GDP is the cost of healthcare - which is what it ought to be here. Why start at 15%?

One of the "bottom lines" in "fixing" healthcare is that the US "industry" is going to have to live on "only" 8-10% of GDP - which is the norm elsewhere and was the norm here too until the last 20 years of corruption was allowed to occur.



Genesis
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Another statist demands to stick his hands in your wallet.

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I don't care if it makes sense -- only if it makes money. -- Me
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What part of "shall not be infringed" was unclear?
Dudefish
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And the opinion was authored by one repub and one dem, both with rather moderate reputations. I know because I practice law regularly in that court. The left can't pull their usual "blame the tea party" crap this time.
Mangoelvis
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I think we're headed for #2 also. I just hope we still have a private sector health care system that is affordable for the middle class....and in middle class I mean me and my family.

Nobody here is arguing that socialized medicine doesn't suck. It does. But anyone who believes that you can cover everyone in the country without SEVERELY rationing care is nuts. But that is how they'll sell it.

A two tiered system is fine as long as I stay on the top tier. And as long as you don't tax the **** out of me for the bottom tier.

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Imustbenutz
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Next stop - SCOTUS. It will interesting to see how those Libtards will interpret the Constitution.

The White House believes the 11th District's ruling to be incorrect.
Quote:
The individual responsibility provision – the main part of the law at issue in these cases – is constitutional. Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect.
according to a statement by Stephanie Cutter http://www.whitehouse.gov/blog/2011/08/1....

To my chagrin, Obamacare is not dead yet.



Saving 15-20% of income for an HSA is far fetched. (In fact that entire post was far fetched.)



Reason: removed some hostility
Widgeon
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Another thing ... HSA's are "nice" ONLY IF ONE IS ATTEMPTING TO COMPARE TO THE ABORTION OF A SYSTEM WE CURRENTLY HAVE. I use an HSA but I completely resent that it is really under "the state's" control ... probably gives banks, etc. extra juice: why trust gov w/ this money? The pols will just use it the way they've gamed SS, etc.

The real solution is to get the costs down so that people can afford it with their savings, etc. The less gov is involved the better.

Back in "the old days" things were much simpler and MUCH BETTER regarding quality of life. J6P Citizen ought not need a Ph.D. in accounting and actuarial science just to pay their medical bills.
O.jeff
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"Elsewhere in the world, 8-10% of GDP is the cost of healthcare - which is what it ought to be here. Why start at 15%?"

Good question. I picked 15/20% just based on statistics that say 17% of the GDP is spent on health care. It may turn out that 8-10% of forced savings is all that is needed. I believe the full market effects of consumers exerting full price/value pressure on providers will reduce spending.

The plan's major infringement on personal liberty is the forced savings requirement. But the money remains your money. You put it into an account of your own choosing at a bank of your own choosing. The other infringement on liberty is that you are only allowed to spend this money on health care expenses. But, the plan minimizes wealth re-distribution as much as possible while still providing universal health care financing.

Keep in mind, force savings is NOT the same as forcing someone to buy a product (insurance) from a private company -- which is what the appeals court objected to in Obamacare.

I think it is less objectionable than single-payer a la Canada.

1lumpor2
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Quote:
Elsewhere in the world, 8-10% of GDP is the cost of healthcare


At Mcdonalds a hamburger is $1, a steak at Ruth's Chris is $50. Think 1 is of better quility then the other? We also subsidize the rest of the worlds healthcare with RnD that is done here, even the RnD that is done abroad is cost shifted to the USA.


The Whole Foods Alternative to ObamaCare:


Remove the legal obstacles that slow the creation of high-deductible health insurance plans and health savings accounts (HSAs). The combination of high-deductible health insurance and HSAs is one solution that could solve many of our health-care problems. For example, Whole Foods Market pays 100% of the premiums for all our team members who work 30 hours or more per week (about 89% of all team members) for our high-deductible health-insurance plan. We also provide up to $1,800 per year in additional health-care dollars through deposits into employees' Personal Wellness Accounts to spend as they choose on their own health and wellness.

Money not spent in one year rolls over to the next and grows over time. Our team members therefore spend their own health-care dollars until the annual deductible is covered (about $2,500) and the insurance plan kicks in. This creates incentives to spend the first $2,500 more carefully. Our plan's costs are much lower than typical health insurance, while providing a very high degree of worker satisfaction.

Equalize the tax laws so that employer-provided health insurance and individually owned health insurance have the same tax benefits. Now employer health insurance benefits are fully tax deductible, but individual health insurance is not. This is unfair.

Repeal all state laws which prevent insurance companies from competing across state lines. We should all have the legal right to purchase health insurance from any insurance company in any state and we should be able use that insurance wherever we live. Health insurance should be portable.

Repeal government mandates regarding what insurance companies must cover. These mandates have increased the cost of health insurance by billions of dollars. What is insured and what is not insured should be determined by individual customer preferences and not through special-interest lobbying.

Enact tort reform to end the ruinous lawsuits that force doctors to pay insurance costs of hundreds of thousands of dollars per year. These costs are passed back to us through much higher prices for health care.

Make costs transparent so that consumers understand what health-care treatments cost. How many people know the total cost of their last doctor's visit and how that total breaks down? What other goods or services do we buy without knowing how much they will cost us?

Enact Medicare reform. We need to face up to the actuarial fact that Medicare is heading towards bankruptcy and enact reforms that create greater patient empowerment, choice and responsibility.

Finally, revise tax forms to make it easier for individuals to make a voluntary, tax-deductible donation to help the millions of people who have no insurance and aren't covered by Medicare, Medicaid or the State Children's Health Insurance Program

Read More: http://online.wsj.com/article/SB10001424....

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Widgeon
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Your plan still needs tweaking.

When the subject comes up, I don't rest peacefully with the 17% of GDP number for the United States which is 100% higher than other comparable countries. The "healthcare industry" can have 8% of GDP and they can fight over how to distribute it within their industry by themselves. That 50% haircut from their current "share" would by itself radically change things.

If "savings" can only be spent on healthcare (as w/ current voluntary HSA's), then what happens to any outstanding balance ... at least at the end of life? It's not clear from what you've posted so far that the money in fact "remains yours."



Widgeon
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Quote:
At Mcdonalds a hamburger is $1, a steak at Ruth's Chris is $50. Think 1 is of better quility then the other? We also subsidize the rest of the worlds healthcare with RnD that is done here, even the RnD that is done abroad is cost shifted to the USA.



There's dozens of threads here on exactly this topic. Our "quality of care" is no better on balance than most anyplace else ... as measured by fitness, mortality, etc. It is DEFINITELY no better for J6P.

Starvingartist
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How can that be if everyone here agrees that socialized medicine sucks? You can't have it both ways.


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All the should's in the world ain't gonna change that."
1lumpor2
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Fitness? Yes we are fat and unfit, that's not because of our healthcare. Mortality? In the US if a baby is born at 5 months, lives outside the womb for 5 minutes then dies, that's counted as 1 death. In most of the rest of the world if a baby is born at 9 months, lives for 29 days then dies....That is not counted as a death.

Where do the rich of the world go for heathcare if the are healthy enoung to travel and allowed to come to the US?

If I have the means to pay for it I want to go to:

Johns Hopkins Hospital
Cleveland Clinic
Mayo Clinic
Massachusetts General Hospital
Mount Sinai Medical Center
Ronald Reagan UCLA Medical Center
Vanderbilt Medical Center


I sure as hell don't want to go to Italy or France, or the UK, or Canada.

We DO have the best heathcare in the world no mater what the BS studies show of healthcare in the rest of the world, those studies ALL use 1 measureing stick for them and a differnt one for the US. How many blacks and hispanics live in thos countries with better fittness and mortality then US?
Think that may have something do do with those studies findings? If the people in those other countries lived as unhealthly as we do, what do you think the heathcare ratings would be?



All that said, healthcare is to costly here and can be brought down, Read the Wholefoods plan above. But down to 8% od GDP from 17%.... I SURE AS HELL don't want to see that. 12% would be about it.

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-- Done

Genesis
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Sorry, that bull**** doesn't work.

As soon as you get ill with a serious disease that has the potential to be fatal you immediately have no incentives whatsoever against billing everything you can to other people. There's absolutely no downside for you in such a circumstance.

This is why we're in the mess we have now - there's no incentive for you to make a decision about what you'd like to buy (or not) when it comes to serious disorders - any such decision is simply "spend all I can to get that last breath because I don't have any limit on what can force other people to pay."

This in turn drives up cost and "develops" therapies that have no market in a world where people have to actually fork up the money for what they receive. An insufficient number of patients would be able or willing to spend $100,000 for Provenge to get an average 4.1 months of additional life if it was their money, but if they can force you to pay then everyone with that affliction will choose to bill you "on the come" for that additional set of breaths.

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I don't care if it makes sense -- only if it makes money. -- Me
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What part of "shall not be infringed" was unclear?
O.jeff
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"If "savings" can only be spent on healthcare (as w/ current voluntary HSA's), then what happens to any outstanding balance ... at least at the end of life? It's not clear from what you've posted so far that the money in fact "remains yours."

When you die, any positive balance in your health savings account would be a normal part of your estate--like any other account you might have at your credit union--and thus you could will it to your heirs, donate it, etc.

If you die with a negative balance, then any assets you have must be used to pay off your balance. If you don't have enough assets, then you die "indigent" and the amount is "written off" by the government. I propose that these indigent care expenses be paid by a small sales tax on all medical products and services. The amount of tax would be based on the real cost of paying off the indigent balances.



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