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Sunday, December 16, 2018

Is Obamacare "unconstitutional?"

Texas Federal District Court judge Reed O'Connor thinks so [55 pg pdf].
The United States healthcare system touches millions of lives in a daily and deeply personal way. Health-insurance policy is therefore a politically charged affair—inflaming emotions and testing civility. But Article III courts, the Supreme Court has confirmed, are not tasked with, nor are they suited to, policymaking. Instead, courts resolve discrete cases and controversies. And sometimes, a court must determine whether the Constitution grants Congress the power it asserts and what results if it does not. If a party shows that a policymaker exceeded the authority granted it by the Constitution, the fruit of that unauthorized action cannot stand. 

Here, the Plaintiffs allege that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the Individual Mandate in the Patient Protection and Affordable Care Act (ACA) is unconstitutional. They say it is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under the Interstate Commerce Clause. They further urge that, if they are correct, the balance of the ACA is untenable as inseverable from the Invalid Mandate.

Resolution of these claims rests at the intersection of the ACA, the Supreme Court’s decision in NFIB, and the TCJA. In NFIB, the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress’s Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court’s reasoning in NFIB—buttressed by other binding precedent and plain text—thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause—as the Supreme Court already held. 

Finally, Congress stated many times unequivocally—through enacted text signed by the President—that the Individual Mandate is “essential” to the ACA. And this essentiality, the ACA’s text makes clear, means the mandate must work “together with the other provisions” for the Act to function as intended. All nine Justices to review the ACA acknowledged this text and Congress’s manifest intent to establish the Individual Mandate as the ACA’s “essential” provision. The current and previous Administrations have recognized that, too. Because rewriting the ACA without its “essential” feature is beyond the power of an Article III court, the Court thus adheres to Congress’s textually expressed intent and binding Supreme Court precedent to find the Individual Mandate is inseverable from the ACA’s remaining provisions…

Recall my prior musings "Obamacare is a Great Mess."

See also "Vote like your health care coverage depends on it, because it does." Lots of links there to my various postings on health coverage policy.

You can also plumb the PDF mind-numbing entirety of the PPACA ("Obamacare") here. You can search and note that the law lacks a legislative staple "severability" clause. A major Oopsie**. You can also search "the Secretary" and find 909 hits, almost all of them going to regulatory discretion accorded the HHS Secretary. File under "be careful what you ask for" in light of change of administrations.
** Or, was it "a feature, not a bug" -- tactically intentional? i.e., to prevent a potential judicial "death by a thousand cuts?"
UPDATE: see "The Texans Challenging Obamacare Have No Standing."

O'Connor's decision is certainly bound for appellate and likely subsequent SCOTUS review.

I may have to re-write my Obamacare song.


"Although the United States does not, more than 130 countries recognize a constitutional right to health care. That’s true across many different health-care systems, some nationalized and some mixed public-private systems."

My grad school analytical paper on the JAMA PNHP Single Payer proposal is now 24 years old [pdf].


University of Google Medical School?" Unaccredited. "Fake news threatens our democracy. Fake medical news threatens our lives."


From the Amazon blurb:
Unaffordable covers, in a conversational style punctuated by apt examples, topics ranging from health insurance, pharmaceutical pricing, and physician training to health maintenance organizations and hospital networks. Along the way, Engel introduces approaches that other nations have taken in organizing and paying for healthcare and offers insights on ethical quandaries around end-of-life decisions, neonatal care, life-sustaining treatments, and the limits of our ability to define death. While describing the political origins of many of the federal and state laws that govern our healthcare system today, he never loses sight of the impact that healthcare delivery has on our wallets and on the balance sheets of hospitals, doctors' offices, government agencies, and private companies.
Stay tuned.

More to come...

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