Tag: Health care reform
No matter how you slice the relevant market - as obtaining health care, as paying for health care, as insuring for health care - all of these activities affect interstate commerce, in a substantial way. Start with obtaining medical care. Few people escape the need to obtain health care at some point in their lives, and most need it regularly...In other words, according to a judge who is both "a Bush appointee who clerked for Antonin Scalia and who is seen as a major states rights advocate," Ken "Koch" Cuccinelli is absolutely, dead wrong in his "reasoning" against the Affordable Care Act and its so-called "individual mandate" (note: I put "individual mandate" in quotes because it's debatable whether there really is a "mandate" in the federal health care law; it's also worth reminding everyone that the individual mandate was a Republican idea, an alternative to the employer mandate).
Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.
In choosing how to regulate this group, Congress also did not exceed its power...
Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No - for several reasons...
In addition to demolishing Cuccinelli's "reasoning" on whether health care constitutes interstate commerce, the court - including its "Bush appointee who clerked for Antonin Scalia and who is seen as a major states rights advocate" - also eviscerated the bogus "activity/inactivity" dichotomy, as well as Cuccinelli's silly "broccoli" argument (sometimes he switches to asparagus instead of broccoli, apparently for variety).
In sum, with health care fundamentally ensconced in the Commerce Clause of the Constitution, and with the individual "mandate" (if it even is a "mandate") judged to be constitutional, there's not a heck of a lot left for Kookinelli to work with. Except, of course, for wasting Virginia taxpayers' money and his office attorneys' time, when he should be focusing on things an Attorney General is supposed to do: protecting the citizens of Virginia from pollution, corporate malfeasance, crime, internet predators, etc.
Now, with this slam-dunk ruling against his frivolous lawsuit, perhaps our esteemed AG will see the light and focus on his real job? Yeah, I know, snowball's chance in h*** on that one!
It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
Now, this really dates me, but Judge Kessler's reasoning here immediately brought to mind the rock group Rush, and specifically its song "Freewill." In that song, as all of us who listened to Rush as kids know, there's a verse that goes as follows:
You can choose a ready guide
In some celestial voice
If you choose not to decide
You still have made a choice
Well, it appears that Ken Cuccinelli has chosen Option A -- listening to "some celestial voice" (or maybe just the weird voices in his head?) -- on health care reform, and also on climate science and other issues for that matter. Apparently, though, Cuccinelli was not impressed with Rush's argument that "if you choose not to decide you STILL have made a choice." That, in a wildly oversimplified nutshell, is the rebuttal to Ken Cuccinelli on his challenge to the health care law and specifically the "individual mandate" (which, as Rep. Bobby Scott explains, isn't even a "mandate"). Time for Ken Cuccinelli to break out the old Rush album (but forgo the weed - lol)?
As many as 129 million Americans under age 65 have medical problems that are red flags for health insurers, according to an analysis that marks the government's first attempt to quantify the number of people at risk of being rejected by insurance companies or paying more for coverage.
So begins an article in today's Washington Post by Amy Goldstein. Both that first paragraph, and the title - Government finds up to half of Americans under 65 have preexisting conditions - caught my attention when I went to the Post website this morning.
The report is part of the Obama administration's attempt to manage the debate on health care reform. And the response from the other side is predictable:
Republicans immediately disparaged the analysis as "public relations." An insurance industry spokesman acknowledged that sick people can have trouble buying insurance on their own but said the analysis overstates the problem.
"On the six-month anniversary of the passage of the Affordable Care Act, President Obama leads a backyard discussion on the Patient's Bill of Rights and hears from real Americans who are already benefitting from health reform."
Among other things, when the Patients Bill of Rights kicks in tomorrow, young adults can remain on their parents' health insurance plan until they're 26; insurance companies are prohibited from cutting off your coverage just because you made a mistake on your application; no more lifetime limits and restrictions on annual limits kick in; discrimination against kids with pre-existing conditions is banned; and much more. Obviously, this is all really good stuff, and we have the Democrats to thank for it. And remember, if Republicans get back in power, they'll try to repeal all of this. Let's make sure that doesn't happen!
Cooch may be an extremist, and he may be a nutjob, but is he right about this?
Greta Van Susteren: "If your clause about the mandate is declared unconstitutional, does the entire statute go down?"
Cooch: "...if you look at our brief, we spent a good deal of time on that, because the answer to that question is yes, the whole bill dies if we win on the individual mandate...there is no severance clause..."
Any constitutional law experts care to comment?
A federal judge Monday morning refused to dismiss a Virginia lawsuit challenging the constitutionality of the federal health-care law, handing the law's foes their first victory in a courtroom battle likely to last years.But it's ok if a conservative judge legislates from the bench, right?
U.S. District Court Judge Henry E. Hudson rejected arguments from Obama administration lawyers that Virginia has no standing to sue over the law and no chance of ultimately prevailing in its constitutional claim.
UPDATE: State Senator and Attorney Chap Petersen weighs in:
My take on this whole episode is that the purchasing mandate (as I understand) does not take effect until 2014. There will be two elections for Congress BEFORE that time, and any future Congress has the ability to amend or even repeal the purchase mandate. Therefore, it is premature for any judge to rule on the constitutionality of the mandate, as the issue is not "ripe" for determination.Exactly, although I'd also add that this isn't really a "mandate," but a series of incentives and disincentives for people to purchase health insurance. In other words, if you don't buy health insurance starting in 2014, you will NOT be going to jail or anything like that, but will have to pay a small "fine" or "tax" or whatever to compensate for your decision to go uninsured. How is that a "mandate," exactly? This entire lawsuit - and this entire line of "reasoning" - is utterly ridiculous.
UPDATE #2: Cooch explains his "reasoning" after the flip.