As Goes Obamacare, So Goes Romneycare … and State Laws Requiring Auto Insurance?
I’ve written repeatedly now on AB that the challenge to the constitutionality of the ACA’s minimum-coverage provision (a.k.a., the individual-mandate provision) is not really a Commerce Clause challenge but instead a challenge under the Fifth Amendment’s due process clause, under what is known as the “substantive due process” constitutional law doctrine. The Fifth Amendment’s due process clause limits what the federal government can do vis-à-vis individuals. A clause in the Fourteenth Amendment is nearly identical, and identical in substance, to the Fifth Amendment’s due process clause, except that it limits what state governments can do vis-à-vis individuals.
SCOTUSblog’s Lyle Denniston’s early report suggests that I was right. The outcome of the case, he predicts, will depend on whether Kennedy believes that the Court can uphold the mandate provision without opening the door to unlimited congressional mandating of purchase specific things, not because Congress lacks that power under the Commerce Clause but instead because it violates liberties protected under the Fifth Amendment’s due process clause. Denniston does not mention the Fifth Amendment, but, whether or not the justices themselves did specifically, that is the upshot.
The “substantive due process” doctrine holds that there are certain incursions into personal autonomy and certain impositions on individual liberty beyond which the Constitution allows the government to go. It is this doctrine by which the Court has stricken down such laws as state laws barring the sale and use of contraceptives, state laws prohibiting abortion under all circumstances (Roe v. Wade), and state laws criminalizing sodomy.
But based on Denniston’s early report about the nature of Kennedy’s concerns, I don’t see how, absent an utterly artificial Commerce Clause-based ruling, a ruling that the mandate unconstitutionally infringes upon person choice, upon personal liberty, would not also mean that Massachusetts’s “Romneycare” law, and state laws that require drivers to purchase auto insurance, would be constitutionally permissible.
Kennedy likes to wax eloquent, as he did last year in an opinion in a case called Bond v. United States, about how divisions of power among various governments—by which he means state governments vs. the federal one—protect individuals from tyranny. (He’s usually less interested in constitutional checks than on balances to state power—especially to state-court power—but that’s another subject.) In Bond, he said, rightly, in my opinion, that a person indicted under a federal criminal law has legal “standing” (the legal right) to argue that the federal statute unconstitutionally infringed upon an area of criminal law reserved solely for the states to address, because the federal statute impinged (literally, in that case) her personal freedom. So if the problem with the insurance mandate is that it exceeds Congress’s authority under the Commerce Clause, then a ruling that the ACA, a federal statute, is unconstitutional would not affect state statutes.
But that’s a separate issue from whether the mandate is an unconstitutional violation of personal liberty irrespective of whether or not the Commerce Clause power would allow Congress to enact the law. And under the Court’s longtime Commerce Clause jurisprudence, Congress does have the authority to legislate the mandate to buy health insurance, given the impact on the healthcare market of the uninsureds’ usage of health care. A ruling to the contrary would be transparently artificial. Which probably won’t matter to Kennedy.
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This will be cross-posted later today to the Firedoglake blog.
Listening for 1/2 at lunch, Mr. Carvin seemed to be basing his case on the concept that there are people in the market and people outside the market. The government is forcing people who choose to be outside the market to be in the market. That is a freedom issue.
My issue, is for the 1/2 hour it seemed all the justices talking just kept waltzing around with Carvin. Using stupid examples of not being able to buy a car without emision controls that are known to reduce horse power (wrong on that point but who says the judge needs to know the total of their argument) or buying food and being forced there for to buy meat or wheat.
Why did not one of them stop and think for a minute and then ask Mr. Carvin “Being that everyone comes into this life via the health care system, at what point is said individual no longer in the market?” “Are you saying that the choice to be outside the market also allows the choice as to when and where one will be sick?”
Freakin’ judges were arguing the issue as a commodity as Mr. Carvin and all he represent want the argument to be.
We’re so screwed.
Daniel
not everyone comes into this life via the health care system.
moreover
when i or my kids were sick, i paid the bill. i chose to be “outside the insurance market.”
we may be screwed, but that seems to have more to do with “our” inability to think clearly than with the court’s inability to ask the questions you would have asked. though in general i agree that the courts’ questions do not lend confidence that the issue will be resolved on any grounds that i feel are relevant.
i got lost toward the end of beverly’s post here. not surprising since i missed entirely her earlier arguments that the case would be decided on personal freedom and not the commerce clause.
but as for finding Romneycare and the state mandatory auto insurance laws unconstitutional, i say Yea and about time.
if the state wants me to be insured, it needs to provide the insurance as a government “service.”
i get the feeling that Robert Reich agrees with me. i gave a link in the previous Beverly thread.
You may have been outside the insurance market, but you were not outside the health care market.
In general “everyone”. Certainly there are those who have a birth outside the hospital and maybe even without so much as a midwife. However, good chance many of those few will then be into the system within a short time if for nothing else than being an ill baby.
With that, we’re not talking immigration as the means in to the country.
” i agree that the courts’ questions do not lend confidence that the issue will be resolved on any grounds that i feel are relevant.” My point exactly.
Yes, I find it interesting how much “due process” has become such an issue in the last few months. Just can’t get beyond the definition of “is”.
If Obama and the Democrats had really been working for the interests of regular working class American people, they might have avoided this debate and proposed a far simpler form of Healthcare “reform”: Medicare-for-all, aka “single-payer”, aka “Socialized medicine”. That way, no moaning by the right over people being forced to buy private insurance.
Virtually everyone is already paying FICA taxes (not to be confused with payroll taxes), so no new mandate would have been necessary. All that would have been required is to slightly raise the FICA withholding rate or start withhold FICA on income above $102K (which should have been a long time ago for tax fairness alone).
Problem is, despite all the populist rhetoric, Obama and Congressional Dems are not really working for you and me. They’re working for insurance companies, Wall Street and other big money interests. Hence… the industry friendly Frankenstein creation that is Obamacare.
Daniel
I am older than you. I can remember when doctors killed more mothers and babies than home births, which were the norm a few years ago. You may think I am crazy, and you may believe it with a regligious fervor, but I am not yet ready to hand over my most personal life to the government, or worse, to the salesman who has sold the government, and the people.
I don’t expect to win this fight. But it amazes me that people are so willing to accept the prevailing religion of our times just because they learned it in school, or npr, and not the church.
I was largely outside the health care market. I needed a doctor once to take a splinter out of my foot. Androcles was not available, but I was really grateful. I don’t want to push this too far because people will conclude that I am a cracked pot (not the one Lord Russell worshipped). But it would be nice if folks examined some of their own most cherished beliefs.
I find it easier to get people to agree with me about the absurdity of “the Law,” government in general, and the “individual mandate.” Could be that if the supremes endorse it, it will work like … not so much Brown v Board, which the people largely accepted, but “bussing,” which they did not… and it drove them into the loving arms of the Southern Strategy.
HARM
generally agree. but no need to raise the cap for Social Security proper. and there is no cap for Medicare. I think there should be one.
but yes Medicare for all… could be paid for with reasonable “flat” tax, capped. people’s incomes would adjust to it, and the richer would subsidize the poorer automatically the same way that SS does it…as insurance (actually a kind of insurance against not being able to pay the basic premium). even better, with pay as you go, the “medical inflation” would automatically be taken care of as well.
but as you noted, it’s far to simple an idea to get any support from those getting rich out of our present sacred way of doing medical care in America.
Harm:
Yawn.
If you remember several different types of healthcare and insurance were proposed. The Liebermans (the senator from Aetna); the Corkers and the McDonnell all opposed anything but a commercial solution. You and Coberly are drinking the cool-aid thinking there were other solutions when there were none being offered after the blue dogs and the Repugs blocked every other solution but this one. Don’t be silly.
Coberly:
I really do not want to pay for your uninsured dying ass at full hospital and doctor fees. The blue dogs and the Repubs blocked every effort to provide you with single payor or universal healthcare. Your argument is meaningless and has no merit.
Colberly, do not assume I do not know about the abomination that is our health care (not health care system). I am very much aware of midwives, used one for my daughters birth. I am very much aware of political medicine.
There are a few studies looking at the results when doc’s go on strike. It was not good fo the doc’s perspective of their importance. I know there were 8 medical associations battling in RI at the turn of the last century for control of what is now called the Department of Health. Hell, the old Board of Health actually took a christian scientest to court for practicing medicine without a license. The person was praying. I have the data to show that the interpreted rise of workers comp at the begining of 1990’s leading to a complete over hall of the system was nothing more than the common historical rise during a recession. I can also show that the cost reductions were actually a cost shifting to our employee paid (not employer paid) Disability Insurance.
I can go on, but I think this should be enough to assume my knowledge and experience within the health care system in total.
That you have been fortunate enough to not have much need of the health care services does not make you any less within the system. Nor does it determine risk for anyone else. Even if you die in the woods and are found later, the health care system will still determine your cause of death.
run
please give it up. i think i know why you are mad at me. you are even wrong about that. you don’t have to worry about me getting a doctor to help me die, at your expense or otherwise.
your argument seems to be that the blue dogs and the Repubs blocked the only possible other way to have health care. it shows a lack of imagination and, frankly, a lack of courage.
gee, i can’t find the answer to this problem. that proves there is no answer.
so let us all “present” to the winner, may he live forever.
Daniel
Being outside the insurance racket…er, market.. is sufficient for my argument. But I was also largely outside the medical care market as well. You may think I am crazy, and you may believe it with religious fervor, but I think you would do well to try to get what you want from government without disregarding the feelings, if not the rights, of those who very much don’t agree with you.
If the Republicans get what they want… Romney care (don’t imagine they don’t want this just because they have agitated their base about it)… they will use it to motivate their base for the next fifty years, just the way they used “bussing” to get them to embrace the Southern Strategy.
note… i think the people accepted Brown v Board. They did not accept bussing. You have got to know when… not to quit so much… as to re-imagine what it is you really want, and find a way to get it that doesn’t make your neighbor hate you.
Daniel
i was with you right up to the last paragraph. i am aware i have been fortunate. and i don’t despise those who believe in doctors… though i am fairly convinced about half of what they spend is totally wasted, and half of the rest is overcharged.
i don’t want to dismantle health care. I even support “single payer”. So at least try to make that distinction when evaluating my position.
If the health care system determines the cause of my death, that will be a police matter, and not a medical matter.
In most states auto insurance is not mandated. You can instead post a bond or deposit cash with the DMV or in some states you can self insure. I don’t think the ACA has such a provision.
The ACA or BFD in Biden’s words, really was not a BFD. The mandate is the quid pro quo for not allowing the insurers to drop you for pre existing conditions–a free rider problem as opposed to auto insurance which is designed to make people financially responsible for the mayhem they cause with their automobiles. The financing of health care in this country was at a crisis stage before the ACA, is not far from a crisis with the ACA and will be ready to collapse if the ACA is struck down. Then perhaps we can see some real reform which will necessarily be on the single payer model and more “socialist” than the ACA. Indeed, I think that is the principal reason why the conservatives on the Court may uphold the law recognizing that it was nothing more than a stop gap to put off real reform
Terry
exactly. what our friends here don’t seem to recognize is that Obomneycare is a huge victory for the corporations. They will get a captive clientele, more money, and they will not have to pay more taxes to support “government medical care.”
And it’s a win-win for them. By painting a red plan blue they will get everything they ever wanted, while the Democrats will get the odium of “the mandate.” And of course Democrats will have to shut up forever about “single payer” because now, see, they have universal care without it.
As for the “free rider” it seems strange to me to call the people who are not being paid for by others “free riders” because they are not paying FOR others.
And IF those people “are” free riders because eventually they will have a medical bill that is paid for by others, then i would think those people with pre existing conditions who can’t get coverage under the present (non ACA) system.. would also be able to get care. And if that care was paid for by straight welfare… which us free riders would pay for through our taxes… how has ACA solved the “free rider” problem? You have just shifted the cost from taxes to pay the black knight at the bridge… and good luck with getting an honest accounting for that.
Oh, but the mean old Republicans are against it (Obomneycare) so we must be for it. But here is a clue for you all: run75441 above says we have no choice: the Republicans wouldn’t let us do it any other way.
oh, golly gee, he’s right. if the Republicans wouldn’t let us do it our way, we have no choice but to do it their way. see. that’s how we win.
exactly. what our friends here don’t seem to recognize is that Obomneycare is a huge victory for the corporations. They will get a captive clientele, more money, and they will not have to pay more taxes to support “government medical care.”
And it’s a win-win for them. By painting a red plan blue they will get everything they ever wanted, while the Democrats will get the odium of “the mandate.” And of course Democrats will have to shut up forever about “single payer” because now, see, they have universal care without it.
Amen. It never ceases to amaze me how breathlessly and ardently supposedly “liberal” Dems rally round the party to defend the corporate abomination that is Obomneycare (great neologism, btw!). Cue Obama-bots to repeat in unison: “DON’T LET THE PERFECT BE THE ENEMY OF THE GOOD, DON’T LET THE PERFECT BE THE ENEMY OF THE GOOD…”
Obomneycare *isn’t* good for working class Americans. Aside from (supposedly) eliminating rescision and ability to screen for pre-existing conditions (still remains to be seen), there’s hardly a damned bit of “good” in the thing –unless you’re a major shareholder in Aetna, Blue Shield/Blue Cross, etc.
But again, I would argue that most Democratic politicians are not actual liberals. They are corporatists in populist clothing serving the same plutocratic rentier class as Republicans. Democrat pols often use divide-and-conquer Culture War wedge issues to divert attention from this very fact (though they are not as good at it as Republicans).
This is why that single-payer Medicare-for-all was never on the table to begin with, and sadly, probably won’t be even after the SCOTUS strikes down the entire ACA.
exactly. what our friends here don’t seem to recognize is that Obomneycare is a huge victory for the corporations. They will get a captive clientele, more money, and they will not have to pay more taxes to support “government medical care.”
And it’s a win-win for them. By painting a red plan blue they will get everything they ever wanted, while the Democrats will get the odium of “the mandate.” And of course Democrats will have to shut up forever about “single payer” because now, see, they have universal care without it.
Amen. It never ceases to amaze me how breathlessly and ardently supposedly “liberal” Dems rally round the party to defend the corporate abomination that is Obomneycare (great neologism, btw!). Cue Obama-bots to repeat in unison: “DON’T LET THE PERFECT BE THE ENEMY OF THE GOOD, DON’T LET THE PERFECT BE THE ENEMY OF THE GOOD…”
Obomneycare *isn’t* good for working class Americans. Aside from (supposedly) eliminating rescision and ability to screen for pre-existing conditions (still remains to be seen), there’s hardly a damned bit of “good” in the thing –unless you’re a major shareholder in Aetna, Blue Shield/Blue Cross, etc.
But again, I would argue that most Democratic politicians are not actual liberals. They are corporatists in populist clothing serving the same plutocratic rentier class as Republicans. Democrat pols often use the very same divide-and-conquer Culture War wedge issues to divert attention from this very fact (though they are not as good at it as Republicans).
This is why that single-payer Medicare-for-all was never on the table to begin with, and sadly, probably won’t be even after the SCOTUS strikes down the entire ACA.
I don’t think SCOTUS will strike down the ACA. it’s what their people want. And just as “the South” never remembered that Brown v Board was from a Republican Court (Warren) and Republican Pres (Ike sends troops to Little Rock), and held it against the Dems. The Republican base will not remember the Republican Court gave them “the mandate,” and the R’s can use it to beat up the Dems for the next fifty years.
Now if it was me, I’d have everyone stop paying their insurance and just show up at the emergency room for treatment. Then we might see single payer. Heck, the people could even form an insurance cooperative on their own and do some hardball negotiating with doctors who “wont take medicare patients.”
Occupy ER’s! If only we could get people to understand they have lost and thus have nothing else to lose, maybe then they would stop paying the insurance and just show up.
But enough of the masses have bought into the idea that they are totally responsible for what ever they have and thus would run on their ankle bones if only to prove they are worthy of respect as being just like the money class except for the money part.
After listening today some, I’m not so certain the Court will not strike down the ACA or at least strike the parts that gut the law such that the repub’s/Ayn’s win their freedom and force congress to readdress. Kind of a political Mulligan.
of course beverly and run could be right.
and if the ACE is struck down, we can go another hundred years with the politics of evil government vs evil corps.
it happens i am more worried about the corps.. until the government is entirely owned by them.
but what i was really hoping was that, assuming the ACA is struck down, and single payer has no chance…. what OTHER ways might there be to take care of the “uninsurable”? whether from pre existing conditions or from simple poverty.
i am not sure that simple, unannounced, welfare wouldn’t take care of it. Not at all my favorite plan, but I think we need to do some more creative thinking that our elected representatives have been doing.
politically it would be a matter of
telling the sad stories in the newspapers every day. Americans are not uncaring. eventually they would figure it out.
Practicepro, the infringement-of-individual-liberty claim, although clothed as a Commerce Clause issue, is really a claim that the buy-health-insurance-or-pay-a-penalty provision violates some Fifth Amendment due process clause. The Obama administration is not claiming that the Constitution required such a law; it’s claiming that the Constitution allows such a law. So I’m not sure why you think it matters that not all 50 states have mandatory-auto-insurance laws. The analogy is to the state mandatory-auto-insurance laws that exist, where they exist.
And I’m not sure why you think a requirement to post a bond or deposit cash as a mandatory alternative to insurance wouldn’t violate your constitutionally guaranteed freedom to not have insurance but the ACA’s penalty as an alternative to having insurance does.
As for self-insurance, that’s what people who have no insurance have—self-insurance—whether it’s auto or healthcare insurance that they don’t have. And the purpose of the ACA’s mandate-or-penalty provision is to remove the option of “self insurance,” which, for people who can’t pay their medical bill or pay their auto-accident damages, is no insurance.