Health Care Reform Legislation Revisited

In 2009, as the health care reform legislation made its way through the Congress, many on both sides argued for their respective positions.  (I wrote an article discussing some of the issues which appeared in the American Thinker in November 2009.)  The legislation eventually was passed and signed by President Obama in March 2010.  As of this writing, the Supreme Court is reviewing the constitutionality of this legislation.  Again, both sides are arguing the eventual outcome.  But what does this fight say about the American society and Constitution established over 200 years ago?

Proponents of the federal law feel that the health care system is broken because it does not guarantee equal care to all residents.  They see this legislation as helping to ensure a more equitable distribution of health care, an extension of fairness in the greater society.  This is the daily cry of the president and his supporters.  Whether one agrees with this aim or not, it is commendable.   The question for the Court is whether the legislation meets the requirements under the Constitution.  Clearly, the opposition feel that it does not; they also oppose the remedy that emerged on philosophical grounds.

The media continues to point to the question of a mandate underlying the legislation.  Some point to the mandate embedded within the health care reform passed in Massachusetts while Mitt Romney was governor.  This issue underlies the argument about his worthiness to become the Republican nominee for president.   The president promised the American people better-quality health care for more residents at a lower cost when he was a candidate in 2008.  Unfortunately, the result has not materialized.  Premiums are rising faster because of the cost to provide coverage for previously uninsured people.  The Congressional Budget Office has recently announced that its estimates for the federal cost have doubled from over $900 billion over ten years to $1.7 trillion.  Undoubtedly, the costs will continue to rise.  But will we be able to maintain the level of care that our privately financed system has provided?

Clearly, it is important to understand the issues related to the Court case.  However, there are other issues not mentioned publicly.  Did the process used to pass the legislation violate the Constitution or congressional procedures?  The Constitution requires bills of revenue to arise in the House before they can proceed.  The procedure of reconciliation, which does not allow for filibusters in the Senate, is used to pass budget bills.  This legislation may have had budget impact, but it was beyond this in scope.  In the end, the Senate bill was used as the basis for the final bill without any conference compromise.  Final approval required some slight corrections through the reconciliation process.  This is troubling, as was the often repeated quotation by Speaker Pelosi that we would know what is in the bill after it was passed.  So much for openness and transparency so often promised to the American people by the president.

The issue mentioned by opponents of Mitt Romney concerns another constitutional question.  We may disagree on whether a mandate is acceptable.  However, we should not confuse the federal government imposing this mandate with a state under the Tenth Amendment exercising this right.  The so-called "RomneyCare," which is only 70 pages long, should not be equated with the 2,500-page "ObamaCare," which imposes many other requirements over the entire populace.  Massachusetts as a liberal state desired this legislation.  Clearly, the costs have soared, and one can question the value of the law, but the issues are not identical.  At the time, the Heritage Foundation, a conservative organization, had supported an individual mandate as way to cover more uninsured people.  They have since changed their position.  At the time, liberals did not like this approach, favoring a single-federal-payer approach.  Of course, now liberals have accepted this method; it may get the country to a single-payer eventually.

In 1936, the Court was given the issue of Social Security to rule on its constitutionality.  They decided that it did not violate the Constitution, as the legislation was structured as a tax following the authority under the 16th Amendment.  Although the public thought they were getting a pension plan, the Court did not rule in this manner.  President Obama spoke of a penalty for not having insurance to avoid the impression that he was raising taxes during a severe recession in 2009 and 2010.  However, it is hard to avoid the fact that the penalty occurs only if one has not purchased insurance -- a fact which Justice Breyer tried to elucidate during Monday's oral arguments.  Finally on the issue of mandates, how does the commerce clause allow regulation of a product or service if it has not been purchased?  Where is commerce without a purchase?  Or to put it a different way, does the Constitution allow the Congress to force anyone to buy anything?  (Will the government tell me which toothpaste to buy?)  Would the Founders recognize this requirement or ever support it under limited government?

Health care throughout the world is subject to scarcity.  In countries with socialized care, services may be limited by government panels, the cost of delivery, and availability of equipment and services, with age restrictions on certain procedures, and increasing use of private health insurance, as a solution to this scarcity.  Health care in the USA is highly specialized, uses high technology, and is plentiful.  This is expensive, results in shorter waiting times for services, and has resulted in higher costs than in other industrialized nations.  Already, some are questioning whether former Vice President Cheney should have received a heart transplant since he is 71 years old.  Scarcity in America is more often related to cost for the individual.  Some argue that that it is not fair, but should all care be equal?  Do persons living in smaller communities have fewer choices?

There is some concern about financing the health care system.  In the reform legislation, changes are made to Medicare reimbursement rates to save money.  As more cost pressure upon the system mounts, further cuts in services will be required.  As the federal requirements increase through regulatory decree from the Health and Human Services secretary, as part of the bill, more private employers will choose to eliminate their plans and pay the penalty.  This will put pressure on private insurance companies to increase rates, further eroding participant numbers.  The recent decision to force religiously affiliated institution to offer contraceptive services is a clear example that threatens private-sector participation.  This issue also threatens the privileges under the First Amendment.

The Court will also have to decide whether the mandate or the entire bill must be eliminated.  In their zeal to pass the legislation when the Democrats had a filibuster-proof Senate, they did not bother to insert a severability clause.  However, the death of Senator Kennedy resulted in the election of Senator Brown (R) in Massachusetts, who campaigned against the reform bill.  This was the cause of the procedural gimmicks employed as previously mentioned.  Severability clauses allow the remaining legislation to survive if any portion is found unconstitutional.

This case is quite unusual.  The Court has allowed five and a half hours for oral arguments.  They expedited the review process -- a rare occurrence.  They heard arguments concerning the standing of the case since the penalty (tax) has not kicked in yet (which is an issue due to previous legislation).  In the end, this may be a seminal decision affecting the growth of governmental power or its restriction.  Stay tuned for the results.