The Real Health Care Debate April 9, 2012Posted by rogerhollander in Health.
Tags: affordable care, big pharma, chris hedges, constitution, health, health care, heritage foundation, individual mandate, insurance industry, massachusetts health, medicare, medicare-for-all, mitt romney, obamacare, pharmaceutical industry, roger hollander, single payer, universal health
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Published on Monday, April 9, 2012 by Truthdig
The debate surrounding the Patient Protection and Affordable Care Act illustrates the impoverishment of our political life. Here is a law that had its origin in the right-wing Heritage Foundation, was first put into practice in 2006 in Massachusetts by then-Gov. Mitt Romney and was solidified into federal law after corporate lobbyists wrote legislation with more than 2,000 pages. It is a law that forces American citizens to buy a deeply defective product from private insurance companies. It is a law that is the equivalent of the bank bailout bill—some $447 billion in subsidies for insurance interests alone—for the pharmaceutical and insurance industries. It is a law that is unconstitutional. And it is a law by which President Barack Obama, and his corporate backers, extinguished the possibilities of both the public option and Medicare for all Americans. There is no substantial difference between Obamacare and Romneycare. There is no substantial difference between Obama and Romney. They are abject servants of the corporate state. And if you vote for one you vote for the other.
But you would never know this by listening to the Democratic Party and the advocacy groups that purport to support universal health care but seem more intent on re-electing Obama. It is the very sad legacy of the liberal class that it proves in election cycle after election cycle that it espouses moral and political positions it will not pay a price to defend. And since we have no fight in us, since we will not punish politicians like Obama who betray our core beliefs, the corporate juggernaut rolls forward with its inexorable pace to cement into place our global neofeudalism.
Protesting outside the Supreme Court recently as it heard arguments on the constitutionality of the Affordable Care Act were both conservatives from Americans for Prosperity who denounced the president as a socialist and demonstrators from Democratic front groups such as the SEIU and the Families USA health care consumer group who chanted “Protect the law!” Lost between these two factions were a few stalwarts who hold quite different views, including public health care advocates Dr. Margaret Flowers, Dr. Carol Paris and attorneys Oliver Hall, Kevin Zeese and Russell Mokhiber. They displayed a banner that read: “Single Payer Now! Strike Down the Obama Mandate!” They, at least, have not relinquished the demand for single payer health care for all Americans. And I throw my lot in with these renegades, dismissed, no doubt, as cranks or dreamers or impractical by those who flee into the embrace of empty political theater and junk politics. These single payer advocates, joined by 50 doctors, filed a brief to the court that challenges, in the name of universal health care, the individual mandate.
“We have the solution, we have the resources and we have the money to provide lifelong, comprehensive, high-quality health care to every person,” Dr. Flowers said when we spoke a few days ago in Washington, D.C. Many Americans have not accepted the single payer approach “because people get confused by the politics,” she said. “People accept the Democratic argument that this [Obamacare] is all we can have or this is something we can build on.”
“If you are trying to meet the goal of universal health coverage and the only way to meet that goal is to force people to purchase private insurance, then you might consider that it is constitutional,” Flowers said. “Our argument is that the individual mandate does not meet the goal of universality. When you attempt to use the individual mandate and expansion of Medicaid for coverage, only about half of the uninsured gain coverage. This is what we have seen in Massachusetts. We do, however, have systems in the United States that could meet the goal of universality. That would be either a Veterans Administration type system, which is a socialized system run by the government, or a Medicare type system, a single payer, publicly financed health care system. If the U.S. Congress had considered an evidence-based approach to health reform instead of writing a bill that funnels more wealth to insurance companies that deny and restrict care, it would have been a no-brainer to adopt a single payer health system much like our own Medicare. We are already spending enough on health care in this country to provide high-quality, universal, comprehensive, lifelong health care. All the data point to a single payer system as the only way to accomplish this and control health care costs.”
Obamacare will, according to figures compiled by Physicians for a National Health Plan (PNHP), leave at least 23 million people without insurance, a figure that translates into an estimated 23,000 unnecessary deaths a year among people who cannot afford care. Costs will continue to climb. There are no caps on premiums, including for people with “pre-existing conditions.” The elderly can be charged three times the rates provided to the young. Companies with predominantly female workforces can be charged higher gender-based rates. Most of us will soon be paying about 10 percent of our annual incomes to buy commercial health insurance, although this coverage will pay for only about 70 percent of our medical expenses. And those of us who become seriously ill, lose our incomes and cannot pay the skyrocketing premiums are likely to be denied coverage. The dizzying array of loopholes in the law—written in by insurance and pharmaceutical lobbyists—means, in essence, that the healthy will receive insurance while the sick and chronically ill will be priced out of the market.
Medical bills already lead to 62 percent of personal bankruptcies, and nearly 80 percent of those declaring personal bankruptcy because of medical costs had insurance. The U.S. spends twice as much per capita on health care as other industrialized nations, $8,160. Private insurance bureaucracy and paperwork consume 31 percent of every health care dollar. Streamlining payment through a single, nonprofit payer would save more than $400 billion per year, enough, the PNHP estimates, to provide comprehensive, high-quality coverage for all Americans.
But as long as corporations determine policy, as long as they can use their money to determine who gets elected and what legislation gets passed, we remain hostages. It matters little in our corporate state that nearly two-thirds of the public wants single payer and that it is backed by 59 percent of doctors. Public debates on the Obama health care reform, controlled by corporate dollars, ruthlessly silence those who support single payer. The Senate Finance Committee, chaired by Max Baucus, a politician who gets more than 80 percent of his campaign contributions from outside his home state of Montana, locked out of the Affordable Care Act hearing a number of public health care advocates including Dr. Flowers and Dr. Paris; the two physicians and six other activists were arrested and taken away. Baucus had invited 41 people to testify. None backed single payer. Those who testified included contributors who had given a total of more than $3 million to committee members for their political campaigns.
“It is not necessary to force Americans to buy private health insurance to achieve universal coverage,” said Russell Mokhiber of Single Payer Action. “There is a proven alternative that Congress didn’t seriously consider, and that alternative is a single payer national health insurance system. Congress could have taken seriously evidence presented by these single payer medical doctors that a single payer system is the only way to both control costs and cover everyone.”
Chris Hedges writes a regular column for Truthdig.com. Hedges graduated from Harvard Divinity School and was for nearly two decades a foreign correspondent for The New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War, and American Fascists: The Christian Right and the War on America. His most recent book is Empire of Illusion: The End of Literacy and the Triumph of Spectacle.
If the Supreme Court Goes Rogue April 1, 2012Posted by rogerhollander in Constitution, Health.
Tags: affordable care, commerce clause, constitution, health care, health care reform, heathcare, heathcare reform, john roberts, obamacare, republicans, roger hollander, rule of law, sam parry, supreme court
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What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue? What if the court’s majority simply ignores the wording of the founding document and makes up the law to serve some partisan end? Does that, in effect, turn the country into a lawless state where raw power can muscle aside the democratic process?
Chief Justice John Roberts
Something very much like that could be happening if the Supreme Court’s five Republicans continue on their apparent path to strike down the individual mandate at the heart of the Affordable Care Act. In doing so, they will be rewriting the Constitution’s key Commerce Clause and thus reshaping America’s system of government by fiat, rather than by the prescribed method of making such changes through the amendment process.
And the word “regulate” means today what it meant then, as was noted in a Nov. 8, 2011, ruling written by Judge Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, a conservative appointee of President Ronald Reagan.The plain text of the Commerce Clause – Article 1, Section 8, Clause 3 – is so straightforward that a middle-school child should be able to understand it. Here it is: “Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
In upholding the individual mandate as constitutional, Silberman wrote: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action.”
So, for the individual mandate to clear the Commerce Clause hurdle it must be a regulation of commerce among the states. Everyone agrees that health care and health insurance are interstate markets. Check. Everyone also agrees that health care and health insurance are commerce. Check. There’s also no dispute that the individual mandate is a form of regulation. Check.
Judge Silberman went through the same check list and concluded that there was “no textual support” in the Constitution for striking down the individual mandate because the word “regulate” has always included the power to compel people to act.
But the law’s opponents insist that the individual mandate is a unique and improper form of regulation because it forces an American to do something that the person might not want to do it, i.e. go into the private market and buy health insurance.
Yet, in other enumerated powers, this idea of Congress having the power to compel people to act is widely accepted. Take, for example, the draft. While there is not currently a draft, there has been at many points in U.S. history and even now every male citizen, when he turns 18, is required to register for selective service. And, should the draft come back and should you get drafted, you would be legally compelled to serve.
If compelling individuals to risk their lives in war is an accepted use of congressional authority, it is hard to see the logic in striking down the power of Congress to compel individuals to get health insurance.
Washington and Madison
And, despite what the Affordable Care Act’s critics have said repeatedly, this is not the first time the federal government has ordered Americans to buy a private product.
Indeed, just four years after the Constitution’s ratification, the second U.S. Congress passed the Militia Acts of 1792, which were signed into law by President George Washington. The militia law ordered white men of fighting age to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets and a knapsack so they could participate in militias.
If one wants to gauge whether a mandate to buy a private product violates the original intent of the Framers, one probably can’t do better than applying the thinking of George Washington, who presided at the Constitutional Convention in 1787, and James Madison, the Constitution’s architect who served in the Second Congress and argued for the militia law. [For more, see Consortiumnews.com’s “Madison: Father of the Commerce Clause.”]
So, it would seem to be a rather clear-cut constitutional case. Whether one likes the Affordable Care Act or not, it appears to fall well within the Constitution and historical precedents. By the way, that’s also the view of Ronald Reagan’s Solicitor General Charles Fried who said this in a March 28 interview:
“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.”
However, if Chief Justice John Roberts and the Court’s four other Republicans go in the direction they signaled during oral arguments and strike down the individual mandate, they will not merely be making minor clarifications to the noun “commerce” and the adjective “interstate” — as the Court has done previously — but they will be revising the definition of the verb “regulate” and thus substantially editing the Constitution.
When it comes to editing the Constitution, there is a detailed process spelled out for how you do that. It’s in Article 5 of the Constitution and it’s called the amendment process – something in which the Judicial Branch plays absolutely no role. The process for revising the founding document requires votes by two-thirds of both the House and the Senate and the approval of three-quarters of the states.
Besides representing an affront to the nation’s constitutional system, an end-run by a narrow majority of the Supreme Court taking upon itself to rewrite an important section of the Constitution would drastically alter the balance among the three branches of government.
Such an action would fly in the face of the longstanding principle in constitutional cases that the Supreme Court should give deference to legislation passed by the government’s Legislative Branch and signed into law by the President as chief of the Executive Branch. Under that tradition, the Judicial Branch starts with the assumption that the other two branches have acted constitutionally.
The burden of proof, therefore, should not be on the government to prove that the Constitution permits a law – but rather on the plaintiffs to demonstrate how a law is unconstitutional.
Yet, during oral arguments this week, Republican justices pressed the government to prove that the Affordable Care Act was constitutional and even demanded that Solicitor General Donald B. Verrilli Jr. put forward a limiting principle to the Commerce Clause – to speculate about what couldn’t be done under that power.
Justice Anthony Kennedy several times raised the point that the individual mandate changes the relationship between citizens and the federal government in, as he put it, “fundamental ways” and thus the government needed to offer a powerful justification. In his questions, however, it was not entirely clear why Kennedy thought this, given the fact that Congress has previously enacted many mandates, including requirements to contribute money to Social Security and Medicare.
In the March 28 interview, former Solicitor General Fried took issue with Kennedy’s question about this “fundamental” change, calling the line “an appalling piece of phony rhetoric” and dismissing it as “Kennedy’s Tea Party-like argument.”
Fried noted that Social Security in the 1930s and Medicare in the 1960s indeed were major changes in the relationship between the government and the citizenry, “but this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years.”
On policy substance as well as on constitutional principle, Fried was baffled by the Republican justices’ opposition to the law, saying: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it.”
A Noble Rationale
But Kennedy seemed to be fishing for some noble-sounding rationale for striking down the individual mandate. He was backed up by Justice Antonin Scalia who proffered the peculiar argument that if Congress could mandate the purchase of health care, why couldn’t it require people to buy broccoli – as if any outlandish hypothetical regarding congressional use of the Commerce Clause disqualifies all uses of the Commerce Clause.
This line of reasoning by the Republican justices also ignored the point that the Court’s role is not to conjure up reasons to strike down a law, but rather to make a straightforward assessment of whether the individual mandate represents a regulation of interstate commerce and is thus constitutional.
In searching for a rationale to strike down the law, the Court’s Republicans also ignored the true limiting principle of any act of Congress – the ballot box. If any congressional majority were crazy enough to mandate the purchase of broccoli, the voters could throw that bunch out and vote in representatives who could then reverse the law.
In the case of the Affordable Care Act, Democrats won Election 2008, in part, because they promised the voters to tackle the crisis in U.S. health care. If the voters don’t like what was done, they can vote the Democrats out of office in November. The pendulum of democracy can always undo or modify any law through legislative action.
However, what the Republican majority on the Supreme Court seems to be angling toward is a radical change in the longstanding principles behind the Constitution’s checks and balances. The five justices would bestow upon themselves the power to not only undo legislation, which has been lawfully enacted by Congress and signed by the President, but to rewrite the founding document itself.
Sam Parry is co-author of Neck Deep: The Disastrous Presidency of George W. Bush. He has worked in the environmental movement, including as a grassroots organizer, communications associate, and on the Sierra Club’s and Amnesty International’s joint Human Rights and the Environment campaign. He currently works for Environmental Defense Fund.
Tags: affordable care, anne galloway, health, health care, health care reform, health reform, healthcare, healthcare reform, obamacare, peter shumlin, roger hollander, single payer, universal health care, universal healthcare, vermont, vermont health, vermont senate
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Roger’s note: I confess that I don’t understand the ins and outs of Obama’s Byzantine insurance industry dominated health care legislation, or how a Vermont single payer universal coverage plan can occur in that context. As a Canadian, however, I cannot but think of Tommy Douglas. Tommy Douglas was a clergyman and an unrepentant socialist who happened to be the Premier of the Canadian Province of Saskatchewan in the 1950s. Against massive resistance and fears of economic collapse, he introduced universal health care into the province, which became the catalyst for its adoption by the entire country. The domino theory at work. Do Canadians value their system of single payer universal health insurance? Would they support going back to private health care? In 2004 the CBC polled Canadians on who what the greatest Canadian of all time. Tommy Douglas won hands down. We can only hope that what the governor and senate have now accomplished in Vermont will be more than symbolic, that it will introduce genuine universal coverage where no one is left unprotected and health care costs come under control through the limitation of windfall profits by private insurers. Americans will then see what they are missing and demand single payer universal health care on a national basis. I love what Dr. Richter said: You go for what you want, not for what you think you might get – that’s what the bill does. Would that that great advocate of change you can believe in, Barack Obama, had had the courage to do just that instead of compromising the principled position of universal care from the very beginning of the congressional process.
by Anne Galloway | April 27, 2011
Gov. Peter Shumlin, a Democrat, campaigned on a promise to create a single-payer system in Vermont that would contain health care costs and give all of the state’s residents universal access to medical care. On Tuesday, Shumlin made good on the first step toward fulfilling that promise, and just five hours after the Senate vote, he marked the legislative victory in an appearance on MSNBC’s “The Rachel Maddow Show.”
Shumlin said in a statement to the Vermont press: “Today the Legislature took a huge step toward making Vermont the first state in the first in the nation to control skyrocketing health care costs and remove the burden of providing health care coverage from small business owners. This bill is good for Vermonters and Vermont businesses.
Many Vermont businesses, however, believe otherwise. Though small employers have said they will benefit, some larger employers actively lobbied against the bill. Opponents of H.202 argued that the legislation would leave businesses in the lurch during the transition period between 2013 and 2014 when the state is required under federal law to participate in insurance exchanges. The opposition was led by insurance brokers (the Fleischer Jacobs Group, Business Resource Specialists), business associations (Vermont Chamber of Commerce, Vermont Grocers’ Association and Vermont Retailers Association), large employers (Dealer.com, Biotek, Rhino Foods and IBM). The Senate debate on Monday and Tuesday centered on changes to the legislation that would have made it more palatable to these groups.
Sen. Vince Illuzzi, R/D-Essex Orleans, who proposed two amendments that would have made the bill more business friendly, said companies are afraid “we will end up with a plan most won’t be able to afford.”
The legislation sets the state’s health care system on a new trajectory. Instead of continuing to use an insurance model for covering the cost of care, the bill moves the state toward an integrated payment system that would be controlled by a quasi judicial board and administered by a third party entity. The system would be funded through a broad-based tax.
The universal health care system would be implemented in 2014, if it clears 10 very high hurdles, including the receipt of a federal waiver. Otherwise it wouldn’t kick in until 2017.
Longtime single-payer advocate Dr. Deb Richter was ecstatic about the Senate passage of the bill.
“I’m absolutely thrilled,” Richter said. “It’s one of the best days of my life. I’ve given 400 speeches over the last 10 years and it feels like the work was worth it. We have a ways to go, but this is a step in the right direction.”
A universal health care system is the only way to cover everyone and contain costs, Richter said.
The passage of H.202 marks the first time any state in the country has attempted to provide universal care and a cost containment system that addresses administrative costs, hospital budgeting and uniform payments to doctors, Richter said.
Whether the federal government will give Vermont a waiver to adopt a universal health care system in 2014 is an open question. Richter said the state has a 50-50 chance of getting the exemption from the Affordable Care Act. Even so, she believes Vermont’s attempt to create a single-payer system is worthwhile.
“You go for what you want, not for what you think you might get – that’s what the bill does,” Richter said.
The Senate debate focused on the state’s implementation of the insurance exchanges that are required under federal law. The Affordable Care Act has mandated that states provide an actuarial value for insurance products (the insurance equivalent of a per unit price mechanism that allows consumers to compare the cost of on the shelf grocery items). The federal government has set up very general guidelines for the actuarial levels for insurance products insurers must provide under the exchange. The idea is to create an easy system for comparison between health insurance benefit plans that offer a dizzying array of deductibles, co-insurance, co-pays and premiums. The products, under the federal requirements, range from bronze (60 percent actuarial value) to silver (70 percent), gold (80 percent) and platinum (90 percent). It also puts minimum requirements on the “qualifying plans.” Many of these mandates are already in Vermont law. Insurers, for example, are not allowed to “cherry pick” consumers who are healthy and create pools without a cross-section of the sick and healthy populations.
The Affordable Care Act requires individuals without insurance to buy into the exchange or face a $695 fine. Families of four with incomes of less than $88,700 qualify for tax credits. Businesses with more than 50 employees that do not buy insurance face a penalty of $2,000 per worker.
The fight between employers and proponents of H.202 was about the potential for mandatory inclusion of businesses that have between 50 and 100 workers in the exchange. Sens. Hinda Miller, D-Chittenden, and Illuzzi argued that requiring companies of that size to participate in the exchange could jeopardize their economic viability. Employers in that range tend not to self-insure and so are not protected under the Employee Retirement Income Security Act.
The federal law allows states some flexibility. States can decide what benefit plan levels can be offered, for example. They can also determine the size of the businesses that must be included in the exchange. The Shumlin administration pushed for intent language in the bill that could have led to the inclusion of businesses with 50 to 100 employees into the exchange. Proponents of H.202 have said it’s important to include these 28,000 workers in the state’s insurance exchange in order to build toward a single-payer system.
An amendment proposed by Sen. Diane Snelling, R-Chittenden, and approved by the Senate struck the intent language. The Green Mountain Care board, which will oversee the health care reform effort including the exchanges, is charged with producing a report that would outline the impact of excluding the 50-100 employee group on the exchange, which the Shumlin administration wants to use as a stepping stone toward the single-payer system.
Illuzzi proposed two amendments that would have forced the state to include a broader array of insurance carriers in the exchange, would have specifically allowed health savings accounts and high deductible plans under the exchange and would have allowed “nonqualified” plans outside the exchange. H.202 allows for two carriers.
“Let’s not kid ourselves it will be more than one carrier,” Illuzzi said on the Senate floor. “It will likely be Blue Cross Blue Shield. It will be two carriers in name only. Both will be required to offer same (plans). It will be a change without a difference.”
Anya Rader Wallack, Shumlin’s special assistant on health care, said she was impressed by the Legislature.
“A lot of people worked very hard educating themselves in a short period of time,” Wallack said. “This isn’t simple stuff. I was impressed with the amount of effort both bodies have put into this.”
The Shumlin administration was heavily involved in drafting the bill, H.202. By the time the legislation reached final passage it had changed somewhat from its original incarnation, which was based in part on recommendations from Professor William Hsiao, the renowned Harvard economist who created a single payer system for Taiwan.
Over the next year, the Shumlin administration will hire a director of health care reform and the chair of a quasi-judicial board. The board would be in place by January 2012 and would begin the arduous task of sorting through the maze of federal laws, waivers, benefits, provider reimbursements, system financing and cost containment options.
H.202 will be read in the House Health Care Committee on Wednesday morning. Rep. Mark Larson, D-Burlington, said he expects the bill will go to conference committee in several days. He expects to have no major beefs with the Senate version.
“The core composition of the bill remains identical to what passed in the House,” Larson said. “There are differences between the two bills but they are things we can work out.”
Larson said those details include a change in the dynamic of the board. “We want to make sure it’s an independent board.”
He also referred to the so-called “Mullin” amendment, which set conditions for implementation of Green Mountain Care, the single-payer style system that would be created under H.202. Larson said he thinks the new criteria for the implementation standards need to be more clearly defined.
“It has to be clear what hurdle has to be overcome,” Larson said.