Obamacare case to be argued before the Supreme Court this week 3/25

[Bill Peckham]

On Monday the Supreme Court Of The United States (SCOTUS) will start hearing arguments (National Federation of Independent Business, et al., v. Sebelius; U.S. Dept of Health and Human Services, et al., v. Florida, et al. and Florida, et al., v. HHS), for and against Obamacare (the Affordable Care Act). In all the  SCOTUS is scheduled to hear 5.5 hours of arguments (which is a long time as SCOTUS arguments go) on four questions the SCOTUS granted cert to hear:

1. Whether the suit brought by respondents to challenge the minimum coverage provision is barred by the Anti-Injunction Act, 26 U.S.C. 7421(A).

2. Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision, the individual mandate.

3. Whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate if it exceeds Congress' limited and enumerated powers under the Constitution.

4. "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?"

On Monday, the SCOTUS will hear one hour of argument on Question 1 (PDF link). Does a law passed in the 1860s prevent SCOTUS action until the ACA is fully in effect in 2014 (when the tax (aka penalties) provisions, kick in)?

On Tuesday, the SCOTUS will hear two hours of argument on Question 2 (PDF link). The whole question of the Mandate. Short version: is it Constitutional for Congress to compel activity (under Article 1, Section 8), as opposed to regulating existing activity, a power the Constitution more clearly grants?

Wednesday morning, the SCOTUS will hear 90 minutes of argument on Question 3 (PDF link; PDF link). Which is an if then proposition: if SCOTUS decides the mandate is unconstitutional, then does that necessitate striking down the ACA in its entirety?

Wednesday afternoon, the SCOTUS will hear one hour of argument on Question 4 (PDF Link). This is the Constitutionality of ACA's expansion of the federal Medicaid program. This has to be the weakest question for opponents of the ACA ... the argument questions the Federal Governments ability to place rules and conditions on entitlement program funding that flows through States. I think the way the question is posed is over compensating for a weak argument, the phrasing is a tell that they know their case is not strong.

It's a big week. The decision is due by July.

I think a lot is at stake. If you look at the ACA solely through a CKD lens it is an unmitigated win for the community. Fully implemented the ACA should result in improved outcomes at all stages of CKD. Of course the SCOTUS won't be looking at this through a CKD lens, they'll be using their Constitutional lens (and some would say their political lenses), so whatever you feel about the ACA and however you view its likely impact, the questions being decided in this case concern the law's Constitutionality, not whether or not the law is good policy.

I voted that the Administration will prevail and the SCOTUS will give its judgement this year.
 
What do think will happen?
 

[cariad]

I really want to join this discussion but my brain is not taking this all in properly at the moment.

I am really interested in how this will play out, so thanks for starting this discussion, Bill, and for laying all the issues out. I will be sure to vote in the poll once I take a proper look at the arguments. I know how I want to vote already....

[MooseMom]

I do not think that the SCOTUS will defer judgment; I think they are eager to decide now.

I think it is possible that the mandate will be struck down, but I don't see that as a bad thing, necessarily.  Striking it down might put us back on track for single payer, and there is no question of constitutionality there.

My husband has one daughter who just graduated from college and another who will graduate in May.  The first one has no job that offers health care, so she is still on our policy, thanks to the provisions of the ACA that are already in place.  If SCOTUS strikes down the entire ACA, she will be without health insurance.  There are a lot of young people in positions like hers, so these are questions whose answers will affect the lives of many, many people.

This case fascinates me, and I am so eager to hear how SCOTUS decides!

I would love to hear from any IHDer who has been adversely affected by the ACA or expects to be negatively impacted by it once the entire act becomes law.  Tell us your stories!

PS  you can follow the oral arguments and get transcripts here:

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday

[amanda100wilson]

An interesting point Moosemon and valid to so many people with grown children veing dependent on their parents for an extended period of time these days,  not just someting that 'doesn't happen to me' mentality that many people have thinking that they will never get ill.

[KarenInWA]

All I can say is I hope some kind of agreement can be made that will keep the ACA. I am truly thankful for the "no more lifetime cap limits" on insurance plans. We ESRDer's are expensive, and putting a cap on our health expenses is a potential death sentence! Add to that the fact that dialysis centers like to charge private insurance more for the same treatment, and the results can be deadly. Scary stuff, and makes me sad that I wasn't born a few miles north of where I live (Seattle area).

KarenInWA

[MooseMom]

Ronald Reagan, a Republican president, federally mandated that hospitals must treat ER patients even if they didn't have insurance, but I am unaware of any controversary regarding that particular intrusion of government in health care provision.  I don't recall anyone claiming Reagan's actions to be unconstitutional.

The one question I hear posed over and over again is what happens to people who choose not to buy health insurance but suddenly find themselves having to access health care?  I have not heard an adequate response, other than "let him die."  I understand that it is federally mandated that if such a person presented himself to the ER, he would be treated, stabilized and released, but what would happen to that person if his acute condition became a chronic one?  Is anyone aware of any charity organization who treats chonic conditions for free?  Say, like courses of chemotherapy or even dialysis?

This is such an interesting conundrum because it seems to pit freedom from government intrusion against personal responsibility.  Surely no one who feels that personal responsibility is important would choose not to buy health insurance, thereby foisting the expense of his medical care onto others.

Another story I have that makes this a personal issue rather than just a constitutional one, at least for me, is the one where I bought my own private health insurance policy for the annual period of August 2002-2003.  When I went to submit claims after a hospitalization that resulted in a $20,000 bill, the insurance company denied my claims, saying that I had a pre-existing condition and then declaring that I was not a US citizen (I bought the policy when I returned to the US after living in the UK for 18 years).  They were lying, and I sued and won.  So, the fact that the ACA states that you can't be denied coverage because of a pre-existing condition is personally important to me. 

My husband's niece is another young person who is out of college and is working at a job where she is not given health insurance; she is on her parents' policy...at least unless the ACA is struck down.  So, I've given three stories where the ACA already or would otherwise positively affect peoples' lives, and I am so very curious to learn of anyone's experience with the ACA that has had a negative outcome.  I understand the philosophical distaste for "government intrusion", but I'd like to hear more concrete dissuasion. 

Thanks!

[Animal]

Where I live in florida, there is a catholic charity, Sister of "??" I forget what they are called, but I do see them paying for chemo for people. Also the hospital where I work has a clinic that sees diabetics for free, and provides insulin and needles for free. The amount of people they see is not huge.

[Bill Peckham]

Ronald Reagan, a Republican president, federally mandated that hospitals must treat ER patients even if they didn't have insurance, but I am unaware of any controversary regarding that particular intrusion of government in health care provision.  I don't recall anyone claiming Reagan's actions to be unconstitutional.

The one question I hear posed over and over again is what happens to people who choose not to buy health insurance but suddenly find themselves having to access health care?  I have not heard an adequate response, other than "let him die."  I understand that it is federally mandated that if such a person presented himself to the ER, he would be treated, stabilized and released, but what would happen to that person if his acute condition became a chronic one?  Is anyone aware of any charity organization who treats chonic conditions for free?  Say, like courses of chemotherapy or even dialysis?

This is such an interesting conundrum because it seems to pit freedom from government intrusion against personal responsibility.  Surely no one who feels that personal responsibility is important would choose not to buy health insurance, thereby foisting the expense of his medical care onto others.

Another story I have that makes this a personal issue rather than just a constitutional one, at least for me, is the one where I bought my own private health insurance policy for the annual period of August 2002-2003.  When I went to submit claims after a hospitalization that resulted in a $20,000 bill, the insurance company denied my claims, saying that I had a pre-existing condition and then declaring that I was not a US citizen (I bought the policy when I returned to the US after living in the UK for 18 years).  They were lying, and I sued and won.  So, the fact that the ACA states that you can't be denied coverage because of a pre-existing condition is personally important to me. 

My husband's niece is another young person who is out of college and is working at a job where she is not given health insurance; she is on her parents' policy...at least unless the ACA is struck down.  So, I've given three stories where the ACA already or would otherwise positively affect peoples' lives, and I am so very curious to learn of anyone's experience with the ACA that has had a negative outcome.  I understand the philosophical distaste for "government intrusion", but I'd like to hear more concrete dissuasion. 

Thanks!

MM the Emergency Medical Treatment and Active Labor Act (EMTALA) is related to Question 4. EMTALA compels hospitals through their participation in Medicare/Medicaid - if the hospital wants to receive Medicare/Medicaid payments then they have to abide by Act. Part of the ACA expands Medicaid eligibility and requires states to abide by the new rules by threatening to withhold Medicaid payments entirely if a state doesn't go along with the eligibility expansion. I can argue the World is Flat position on most issues but I can't make sense of the plaintiff state's position.

I do think the provenance of EMTALA (signed by Reagan) is one reason why you don't hear people directly advocating for its repeal. The Constitutional question isn't as acute because the government is compelling businesses rather than individuals. Republicans do dislike EMTALA mainly because it does provide a strong argument (I would say a winning argument) for the ACA. I have pointed out before that one impact of the Ryan plan for Medicare/Medicaid would be to make the EMTALA moot because once the Ryan plan was in effect insurers would be the ones paying hospitals so goodbye to EMTALA's leverage (goodbye to the ESRD Conditions for Coverage too btw).

I think for stories about the downside of the ACA, you have to look at the the rest of the Bill, they're mostly on the provider side:
http://www.washingtonpost.com/blogs/ezra-klein/post/health-reform-at-2-why-american-health-care-will-never-be-the-same/2012/03/22/gIQA7ssUVS_blog.html

Basically the concern is over bundling. The dialysis bundle had nothing to do with the ACA but dialysis was one of the first Medicare experiments in bundling. When you read the complaints about bundling in the ACA you can think of them in terms of nephrologists/EPO/DaVita ... all that Bundling talk is finally paying off! We are uniquely prepped to evaluate this important part of the ACA, but this part isn't really part of what is being argued before the SCOTUS.

[MooseMom]

Where I live in florida, there is a catholic charity, Sister of "??" I forget what they are called, but I do see them paying for chemo for people. Also the hospital where I work has a clinic that sees diabetics for free, and provides insulin and needles for free. The amount of people they see is not huge.

Oh, that's really interesting.  How does one qualify for free chemo from this Catholic charity?  Where does the Church get the money, do you know?  Chemo is so incredibly expensive!  Is it possible that the Church gets grants from the feds?  How do you know they pay for chemo?  How do they decide who to help?  Surely they can't afford to help a lot of people get free chemo. 

I can imagine clinics giving free supplies for diabetics, but what happens if a patient suffers complications from diabetes and needs, say, an amputation or dialysis?  Do you know?  What does the clinic do then?

[MooseMom]

Thanks for the link, Bill.  It's late, so I haven't read through all of the article, but I will as soon as I get the chance.

What I don't understand is why the Republicans are so opposed to the individual mandate now in light of the fact that they've been advocating it since 1993 under the umbrella of "personal responsibility" (which I happen to agree with).  Why do you think that their position has changed so abruptly?

[MooseMom]

The ACA is BIG, and there is a lot in it that we don't hear much about, like the following 10 things...

http://www.cnn.com/2012/03/26/health/health-reform-fun-facts/index.html?hpt=hp_t1

[Animal]

Where I live in florida, there is a catholic charity, Sister of "??" I forget what they are called, but I do see them paying for chemo for people. Also the hospital where I work has a clinic that sees diabetics for free, and provides insulin and needles for free. The amount of people they see is not huge.

Oh, that's really interesting.  How does one qualify for free chemo from this Catholic charity?  Where does the Church get the money, do you know?  Chemo is so incredibly expensive!  Is it possible that the Church gets grants from the feds?  How do you know they pay for chemo?  How do they decide who to help?  Surely they can't afford to help a lot of people get free chemo. 

I can imagine clinics giving free supplies for diabetics, but what happens if a patient suffers complications from diabetes and needs, say, an amputation or dialysis?  Do you know?  What does the clinic do then?

I know I can refer people to them if they have no insurance to get the free chemo,-I work in billing at a hospital- and I have no idea how they are funded.
The free diabeties clinic is part of our local health department and all they do is take your prescription and fill it.
They have a local clinic, its called a health alliance, that see patients for medical reason. IF and its a big IF there is a doctor for that specialty who donates his time. The do have an endocrinologist for diabetics, its limited what they help with. If you need help with something they don't have a doctor for- you are out of luck. They also have a sliding fee scale. In florida you have to have a child under 18 or be disabled to get medicaid of any kind. My brother has hepatitis and no health insurance and there is absolutely nothing available for him. He finally joined a drug trial in Orlando just to get that care for free. Luckilty for him the drug trial he was in has cured his Hep C- one more clear blood test and he is pronounced cured. Its tough here.

 I have not really embraced Obamacare- but I will benefit from it- ( I work in a hospital per diem- which means no benefits) I worry about how it will be paid for though- our country is spending itself into a mess. The cuts to Medicare have already caused some small layoffs, as Obamacare goes into effect they will be asking hospitals to eat more and more, the people I work with/for are worried about their jobs- they keep cutting benefits, and at some point these good jobs will not be that good any more. I dont really understand why people are mad about being 'forced' to buy insurance- oh sure I get it- no one likes to be told what to do- but its something everyone needs....


and by the way MooseMom- its me glitter- I was missing my honey and felt like wearing his name for a few days......

[Bill Peckham]

and by the way MooseMom- its me glitter- I was missing my honey and felt like wearing his name for a few days......

 

[MooseMom]

Oh, hey there, glitter!!

[Animal]

 

[Bill Peckham]

What I don't understand is why the Republicans are so opposed to the individual mandate now in light of the fact that they've been advocating it since 1993 under the umbrella of "personal responsibility" (which I happen to agree with).  Why do you think that their position has changed so abruptly?

I would say the public actions reflect popular support. I think the position Republicans are taking these days has been a strain of thought for years, e.g. Birch Society, Federalist Society, but previously there was not an effective political aka popular, base of support. Today there is.

I think the SCOTUS arguments are revealing because of what has not been said, because of what the justices have not asked to discuss - the problem the Act is meant to address. There was no discussion of today's healthcare reality. Broccoli? Burial Benefits? Nobody's child is suddenly going to need a half million dollars worth of broccoli to stay alive. People don't face yearly burial expenses. People aren't denied access to broccoli because they previously pushed it to the side of their plate. It seems to be all theory for the law's opponents.

You don't have to theorize what a federal laissez-faire approach to healthcare would look like. I've heard no evidence that the people participating in the SCOTUS proceedings know what was going on in the Country, prior to the Act, for people who don't have jobs that includes excellent health insurance and are not eligible for Medicare.

[MooseMom]

There does seem to be recognition amongst some of the Justices that the health care market is unique; I'm glad to hear that because I've been arguing that myself for years.  By what I've read, Chief Justice Roberts today recognized that health care presents an enormous problem in this country.

I am not going to fall into the trap of reading too much into any line of inquiry by any of the judges.  There have been just too many times in the past where everyone just KNEW that SCOTUS was going to make a certain decision, basing their clairvoyance on the various lines of questioning, only to be shocked when SCOTUS made an entirely different decision.  When you have so many 24 hour news networks, the number of breaths per minute taken by the judges will be closely scrutinized.

It does make for very interesting drama, though!  I find it all very intriguing.

[cariad]

I listened to NPR's coverage of the arguments yesterday on the way up from Chicago. They were saying that people thought the government lawyer was not doing such a great job in stating his case. Although, they played the recording of Scalia shouting at the attorney because the bill was too long (god I hate that particular whine) and if I recall the lawyer had been saying that important parts of the ACA could be retained even if the mandate were to be struck down (some parts are severable).  That Scalia always comes off as such a bully, but I digress....

I agree with MooseMom and had been thinking the same thing - analysts seem to overwhelmingly agree that the government botched the argument and that at a minimum, the mandate is already lost. However, analysts that I read who wrote about the school strip search of a 13-year-old girl seemed to all believe that it was not looking good for her, and it turned out the decision went in her favour. (Safford Unified School v. Redding)There was only dissenter, Clarence Thomas, and yes I could read all sorts into that particular justice making that particular decision, but I will restrain myself.  I am holding out hope that there will be another SCOTUS surprise come the summer. Although, yes, I would like to see socialized medicine in America. I was one of those uninsurable kids and only through the luck of being born into a family that could afford my healthcare and knew how to navigate the system - dad being a lawyer - am I alive to tell the tale.

[MooseMom]

But cariad, you are so much fun when you don't restrain yourself!  LOL!

My husband is an attorney, and he made an interesting point last night when we were talking about the government solicitor who was called a "train wreck" by Jeffrey Toobin on CNN.  What the rest of us don't see are the briefs that are written by both sides and are given to the SCOTUS, and my husband pointed out that the justices will put a lot of thought into what is in the briefs, not ONLY in what the verbal arguments were.  So if the brief submitted by the government are lucid and convincing, then the poor performance by the solicitor will be beside the point.

I have heard not very pleasant opinions about some of the more conservative justices in that they are "corporatists".  The insurance companies love the mandate, so we have potentially constitutional interests versus corporate interests, and it will be very interesting to see how that pans out.  Not only that, but the SCOTUS traditionally sees itself above the political fray, and if there is a decision handed down that even whiffs of partisan politics, then we will have charges of "activist judges" and a SCOTUS whose reputation will be sullied.

I'm starting to really wonder if striking down ACA will be the first step toward expanding Medicare for all.  That's single payer and universal and isn't controversial from a constitutional point of view.  Still, that would take some time, and if ACA is struck down, we will still be faced with the pre-existing condition conundrum which is, in my view, downright immoral.

It's not like administrations over the years have not tried other things to sort this problem.  The ACA is just the most recent one.  It's interesting to note, though, that the only health exchange that has not eventually collapsed is the one in Massachusettes, which has the individual mandate.

I am still trying to figure out why the individual mandate, being initially a Republican idea, is today so hated.  Makes ya wanna go "hmmmmm....."

[Bill Peckham]

Tomorrow is the day. Any last thoughts?

I don't know what to make of all the speculation, all the possible nuances that can't be known until the opinion is published.

I guess I'll stick with my original thought that the administration will prevail. However, the expectation generally does seem to be that the mandate and perhaps the whole law will be struck down. I would need some time to process that but I guess we'll see in about 10 hours.

Anyone else going to be checking the internets about 10:20 EST tomorrow?

[cariad]

So this is happening in a bit over an hour?

I'll be on the way home from dropping the kids off, listening to NPR. I don't remember if I voted in the poll yet, but I am thinking the whole thing is going to be undone. And that will make our decision to move overseas that much easier.

[cariad]

I was just pulling back into our drive when I switched over to NPR and they were starting the announcement: I was wrong!!!!!!! The mandate has been upheld!!!!! Don't know the details or what (if anything) was struck down within the healthcare reform law, but for once my pessimism has been shaken!!!!!!!!!!!!!

Congratulations, Mr. President! You've done what many before you have tried and failed to accomplish.

[Bill Peckham]

Can we finally move on now? Particularly the calcified CKD advocacy community - please stop banging on about covering immunosuppressant drugs through Medicare and tell people that they can proceed with their transplant because they now will continue to have access to insurance after their Medicare lapses.

[cariad]

I think it will be years before people get used to all of this and we start to move on, move forward.

Mitt Romney has said he will repeal the Affordable Healthcare Act if he's elected. Perhaps that will be the undoing of his candidacy, but more likely it will polarize people around this issue.

Oh, and CNN pulled a Dewey Defeats Truman Screen capture: http://yfrog.com/z/obzehpp

[Bill Peckham]

And that will make our decision to move overseas that much easier.

LOL
check out some twits on twitter http://www.buzzfeed.com/daves4/people-moving-to-canada-because-of-obamacare


in order to escape the socialism that is the ACA they'll move to Canada.