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Tuesday, March 27, 2012

I note much anxiety over the Supreme Court and the ACA individual mandate

Roberts and Kennedy asked questions which made some fear that they would declare the mandate unconstitutional. Scalia made it clear that he has no respect for precedents set by Scalia (basically he thinks the commerce clause can be used to prosecute pot heads without regard to interstate commerce, but not to expand the welfare state). This link is over trafficked (also it is a report of a court session in progress with slightly different impressions later).

Alarming enough that I offer incompetent legal advice.

First the EMTALA often cited by opponents of health care reform to claim that health care is currently available to all. Hospitals which take Medicare money must treat emergency patients regardless of their ability to pay. This isn't an alternative to the ACA and not just because it is only for emergencies, since the hospitals can and do bill such patients. But it makes health care legally different from roughly everything else, as it is not now legally treated just a service we might want but a matter of legal entitlement (only under narrow conditions pre ACA implementation). If some Justices feel the need to argue that health care is different from other sectors, they have it. This is not precedent (if they followed precedent they would declare the ACA constitutional with no hesitation) but it seems to appeal to Kennedy and Roberts.

Another point is that the mandate isn't very mandatory. There is a tax, but the IRS can't use normal methods to force people to pay. This absurd feature (not bug anymore) was added at the last minute to get votes for cloture. But it means that there is very little for the court to strike down. They can block the Federal Government from doing anything but reminding people that they should get health insurance or pay the penalty. That sure seems to satisfy any possible constitutional concerns. Also Congress has already done this.

Also the second Militia act. if they cared about the original intent of the founders, they should care that G. Washington who had something to do with the founding, signed a bill with a mandate much more invasive that the ACA mandate.

Of course, the issue is absurd as the mandate is exactly equivalent to a tax on all combined with the current subsidies plus giving the tax back to people who get insurance. This is clearly constitutional. The reformers of health care are potentially in trouble, because they wanted to avoid the word tax (they call subsidies tax cuts and the flat 2.5% payroll tax on all given back to those who get health insurance a penalty), but here we are.

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