Healthcare Upheld!

It’s good news that the Supreme Court split 5-4 with Roberts (and not Kennedy?!?) as the deciding vote, to uphold the affordable care act. It’s interesting that this was controversial, and certainly Roberts led the court to a very safe middle ground making the issue about taxation and saying the commerce clause could not apply. If anything, I wonder if this weakens the previous commerce powers of Congress as defined by Wickard v. Filburn, I’d love to hear what a lawyer thinks.

What does this mean?

Well in the short term not a whole lot, this healthcare bill requires a very slow roll-out of provisions. This was never a revolutionary law, which is why it was so surprising that people treated what was essentially a free-market giveaway as if it were some act of revolutionary socialism. But it will mean that states will have to go ahead and start implementing exchanges, it means that lots of other cost-control provisions are going ahead, coverage for pre-existing conditions will remain (victory!), and most importantly, we can start a great cultural shift from using emergency rooms or just plain avoidance to deal with necessary health maintenance and primary care needs.

Now, I know many that think single payer is the only way that healthcare can be provided might have been hoping this hodgepodge mix of free-market and social reforms would fail in favor of a truly government-administered system. I would say to them, don’t worry! It’s possible to have highly efficacious universal healthcare based on insurance for all and subsidization for those who can not afford it. Most systems not inherited from the Soviets came to universal healthcare from different angles, and only really the UK, Canada, and New Zealand represent totally government-administered healthcare systems in such countries. In between would be Sweden, Japan, France, or Australia with government-administered payment or mixtures of public and private hospitals with government sponsored insurance options. Even Russia now has a mixture of public and private healthcare spending. Then there are the systems which look a bit more like what the ACA will be. For instance Germany, which has had universal health care since Otto von Bismarck, has health coverage through employer-subsidized sickness funds, a mixture of public and private hospitals and clinics. Finally, the Netherlands system probably is most like the system proposed by the ACA. They describe it as “private insurance with social conscience”, and the Netherlands enjoys metrics of patient satisfaction, short wait times, and access to procedures far superior to that of other systems including ours (which performs quite poorly on almost all metrics including access). On the extreme free-market side of universal health care is Singapore, which relies on universal governmental catastrophic insurance coverage, but an individual mandate on citizens to contribute to personal health savings funds which cover primary care and most expenditures until you go over a yearly limit. The only thing all of these systems have in common is that they spend half of what we spend yearly per capita on healthcare.

So, to those who oppose it because you either don’t want healthcare or because you don’t think it was enough, don’t despair! For those who think it’s the worst thing ever to pay for other’s health insurance, don’t worry! You already are! You have been since Reagan passed EMTALA. That won’t change, the cost might actually get cheaper (or at least stop increasing at such a violent pace). For those who think that anything but single-payer is awful, don’t complain! What’s most important is that we have universal coverage that encourages primary care usage, getting patients out of the ER and subsidization for the poorest among us. The international experience shows that truly single-payer systems are the minority, and most systems are a mixture of public and private hospitals, insurance and personal expenditure. Further, one of the best systems in the world, the Netherlands system closely resembles what the ACA will accomplish and has resulted in excellent outcomes and patient satisfaction in that country. In fact, most single-payer systems perform worse in terms of access, wait times, and satisfaction than the mixed systems, with the possible exception of Sweden (probably because they put so much money into it).

This is a victory for healthcare and the country. Even if it’s not “perfect”, or even if you think people being treated for their medical problems is some kind of sin against capitalism, too bad. It will accomplish a great deal, there is international precedent that such systems work (and may work better than single-payer), and there is no escape from the fact that we have to pay for people’s healthcare. We can do it expensively, wastefully, and emergently in the ER, or we can do it like thoughtful, decent citizens who care about each other’s welfare and provide a baseline of access for all.

Three reasons the Supreme Court should uphold ACA

With the Supreme Court hearing arguments for the next three days on the Affordable Care Act, many commentators, including Dahlia Lithwick appear to have so much contempt for the Roberts court that they believe the issue will likely be settled on politics rather than law.

The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway.

The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.

Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.

Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions–freeing him to strike down the Affordable Care Act–“without breaking a sweat.” I suspect that’s right.

If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

It disturbs me when legal commentators as experienced and knowledgeable as Lithwick have essentially given up on the notion that the court is non-partisan or above the political fray. Instead, they seem to think it’s just another political body, making decisions based on partisan point-scoring over legitimate constitutional analysis. With the tea party rallying to keep us uninsured under the false notion that the bill will increase costs (it will actually reduce the deficit according to the CBO) and impinge their freedoms. These are the false arguments that people like Nick Gillespie (or libertarian Fonzie) are using, quite successfully, to convince the American people to oppose their own interest. Gillespie argues in his three point essay that (1) it’s unconstitutionally intrusive legislation (2) it’s price tag is ballooning, and (3) it won’t make us healthier. The first claim is debatable since it’s ultimately up to the courts. However good arguments suggest congress does have the power to pass such regulation.

For one previous case like Wickard and Raich suggest extensive powers for congress to regulate commerce. Second, if one of every seven dollars is spent on healthcare, it represents a significant portion of the economy. Third, and most importantly, the uninsured inflict an economic penalty on taxpayers and the insured, so rather than claiming they have a right not to buy, I would argue we have a right to address the cost the uninsured inflict on society. The penalty for not carrying insurance I believe makes complete sense in this regard.

The second claim is blatantly false and his description of the costs as “ballooning” is unsupportable based on the CBO reports. This talking point is an outright lie being spread far and wide by right wingers. The CBO director had to issue a comment to correct this widespread deception.

The third claim is a bit of a red herring. The health benefits of people being insured may eventually result in a healthier population but probably not by much and it’s besides the point. We’re not arguing the law will make us healthier. We’re arguing that the reform law will reduce healthcare expenditures, and protect people economically from the often devastating costs of illness.

But rather than just knocking down their arguments I think it’s important to remind people of the positive reasons we should support this bill. So I have my own list of 3 reasons this bill should be upheld and we should all support it.
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