Obamacare’s threat goes beyond the individual mandate
The 11th Circuit Court of Appeals’ ruling Friday that Obamacare’s individual mandate is unconstitutional is only part of the story. The rest of the story, with maybe the biggest impact, is that the court would let the rest of the law stand without the mandate.
And allowing that to happen could bankrupt the private health insurance industry — and put on the track to full-blown socialized medicine — even faster than an intact Obamacare threatens to do.
Everyone, from the Obama administration to the 26 states, including Georgia, that brought this lawsuit, agrees that the individual mandate is the key to the law because it is the mechanism for making people buy insurance before they become sick. The administration argues this is a reason for keeping the entire law intact; the states argue this is a reason for throwing out the entire law.
But unlike District Judge Roger Vinson, the appellate court decided that Congress didn’t have to include a “severability clause” for the law to survive even if one of its components were struck down:
Supreme Court precedent confirms that the “ultimate determination of severability will rarely turn on the presence or absence of such a clause.” … Rather, “Congress’ silence is just that — silence — and does not raise a presumption against severability.”
The court did examine two particular reforms to see if they should go out along with the mandate — noting that, without the mandate, the “guaranteed issue” and the ban on denials based on pre-existing conditions could “have significant negative effects on the business costs of insurers.” But it deferred to Congress nevertheless:
Just because the invalidation of the individual mandate may render these provisions less desirable, it does not ineluctably follow that Congress would find the two reforms so undesirable without the mandate as to prefer not enacting them at all. The fact that one provision may have an impact on another provision is not enough to warrant the inference that the provisions are inseverable. (italics original)
That may well be the right judicial decision. But it’s a policy disaster in the making.
At The Atlantic, Megan McArdle puts it this way:
Presumably, the insurance market across the United States [would end] up looking a lot like New York’s market, where during the debate over health care reform it was reported that the cost of the average family policy in the individual market was over $4,000 a month. That’s because New York has the other features of Obamacare — community rating and guaranteed issue — without the mandate. The result was that all the healthy people dropped out of the pool, leaving a few very sick people to buy insurance.
There’s a slight difference though: the government is going to subsidize individuals in the private market. If the subsidies keep pace with the cost, Obamacare’s nominal deficit reduction is going to turn into a gaping hole in the federal budget.
As she goes on to argue, Congress may not have the will to take away the other reforms piecemeal once they’ve come on line, even if they become financial drains.
All of which is why Republicans in Congress should continue pushing to repeal the entire law and replace it with market-oriented reforms, rather than counting on the courts to set things right.
(Note: See my commentary about the rest of the ruling here.)
– By Kyle Wingfield
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215 comments Add your comment
I Report (-: You Whine )-: Thee Magnificent!!! mmm, mmmm, mmmmm! Just sayin...
August 12th, 2011
9:33 pm
Isn’t this hilarious to watch? The dummycrats had a choice between obozo and bruno and they chose the blowhard. And now they wish they had picked her of the “Reset Button” and maker of perpetual war upon shot out second hand dictators.
Somebody please pass the vodka.
david green
August 12th, 2011
9:34 pm
Michael if bush was a liberal than why did conservatives elect him into office for second term after he used the Supreme Court to steal the first election?
The fact is that in our society it is impossible to move about freely without using a state – county or city road which the state claims jurisdiction over when it comes to mandatory auto insurance. So by demanding that those who need cars to exercise their right move around freely or face punishment if they refuse to comply the state is indeed forcing those individuals to purchase auto insurance at the point of a gun.
Now it is only logical to conclude that if the state can regulate commerce by requiring auto insurance then the Fed. Govt. can regulate commerce by requiring everyone to purchase health insurance in order to regulate the healthcare industry. Simply because at some point in their lives more people then not are going to need the services of a doctor and/or a hospital.
Or are you and your fellow conservatives advocating that those who can’t afford healthcare be allowed to die in the streets?
Dusty
August 12th, 2011
9:35 pm
David Green,
I see you are a real sucker for propaganda. Obviously a hangover from the Bush administration. The most obvious of your failures is you believing that companies are not making a profit just to discredt Obama. What a crock! Companies are in business to make and sell at a profit so they can stay in business. If there are no buyers they make no profit and business is not good. Companies do not make economic decision based on grudges against a president. They make decisions based on what is good and what shows some profit..
Your continued propaganda lies about Haliburton and Cheney also come from the brainwashing division. Cheney was head of Halliburton at one time. It is one of the few companies large enough to handle huge world shipments needed by our armed forces. Did you think UPS would handle it? Cheney has been an asset and wise part of our government. He was able to determine and speak the truth at all costs. Those trying to undermine; Bush and those handling tough times tried to incriminate everyone in the Bush administration.
If you want to look for people with poor past records, you don’t have to look far. How about Obama’s cabinet? There’s a crowd that needs no make up stories. Some couldn’t even pay their taxes. Why don’t you remember them instead of your makebelieve stories pulled from a Dem propaganda bin?
Gordon
August 12th, 2011
9:35 pm
I am against Obamacare, but I am for the individual mandate. We end up paying anyway, so why not make someone buy insurance? But if its unconstitutional, its unconstitutional.
david green
August 12th, 2011
9:39 pm
xCalaber wrote:
The constitution is still the supreme authority AND it actually means something. It creates limits that we cannot pass when inconvient. You can’t radically expand the power of the government to command citizens to buy a particular service for the rest of their lives without giving the state the power to end freedom of the press and freedom of speech in the same breath.
——————————-
Why Not? Conservative republicans do it all the time whenever they are elected into public office. They only despise it and talk the small limited gov. nonsense when they are out of power.
Dave R.
August 12th, 2011
9:39 pm
“We pay roughly 50% more for health care than countries with “socialized” medicine, we don’t cover everyone and we get poor results.”
Drifter, that “poorer results” meme has been around a long time, and it is positively wrong.
When the WHO takes into consideration all their factors in determining their scores, they neglect to take into effect the analysis of what a “freer” society can do to skew results. For instance, they do not take into effect deaths by driving accidents, gun discharges or crimes. They just get bundled into the same hopper under “life expectancy”. Obviously, none of the above (and a few more I haven’t named) have ANYTHING to do with the quality of health care provided, yet death rates count for quite a bit in the WHO scoring model.
We have a great health care system; better than most in fact. We just need to find a better way to pay for it, and that will only happen when government gets out of the business of regulating it as much as they do.
david green
August 12th, 2011
9:46 pm
Unfortunately Dusty I see that you have imbibed a little too much of the spiked koolaid conservatives have been dishing out to the sheep who mindlessly follow them. The truth is there is no such thing as an honest politician and truly honest people don’t go into politics and stay honest for the system is corrupt and corrupts absolutely. However those who want to enrich themselves at the public trough and wish to sate their passion to dominate and rule over the rest of us have no such qualms.
Dave R.
August 12th, 2011
9:48 pm
“Michael if bush was a liberal than why did conservatives elect him into office for second term after he used the Supreme Court to steal the first election?”
OK, full disclosure. I never voted for Bush.
But to answer your question, when given the choice between Bush and Kerry, I’d probably go with the devil I knew than the worst excuse for a U.S. Senator in the history of the modern Senate.
And the “stole the election” thingy? Really?
I suppose you think that only recounting the ballots in selected, Democrat-majority precincts would be considered “fair and equal”, right? All the Supremes did was mandate that if any precincts were going to be recounted using a new visual standard, ALL precincts had to be recounted the same way.
“Or are you and your fellow conservatives advocating that those who can’t afford healthcare be allowed to die in the streets?”
Of course. How else could we use them for food?
Soylent Green is no longer to us conservatives, didn’t you know that?
Dusty
August 12th, 2011
9:49 pm
More washed out propaganda from David Green.
Bush did not steal any election. He was elected quite legally. Dems made a try at changing that but they failed.
People are not dying in the streets. They can go to any emergency room and get treatment. It is the law.
MarkV
August 12th, 2011
9:49 pm
Michael H. Smith @8:49 pm: I wish it were not so late, but at least briefly:
“Auto insurance is required because one must drive on roads that are owned by the state.”
In the equivalence I was writing about, I would then say:” Health insurance is required because we live in this country.” Auto insurance is nor required BECAUSE one must drive on roads that are owned by the state.” That is just a circumstance, which give the state the ground in requiring the insurance.
“That is a matter of securing public safety…” How is public safety secured by insurance?
“…NOT the same as assuring payment of a private debt acquired for medical expenses”
I did not write anything about medical expenses; I wrote about damages. The insurance is about damages. Have you not noticed? “Financial responsibility laws in every state require all automobile drivers to show proof, after an accident, of their ability to pay damages up to the state minimum.”
Dave R.
August 12th, 2011
9:50 pm
“The truth is there is no such thing as an honest politician and truly honest people don’t go into politics and stay honest for the system is corrupt and corrupts absolutely.”
Disagree. I was one of them. Some of us are not for sale, but unfortunately, are a rare few.
Dave R.
August 12th, 2011
9:52 pm
That should read: “Soylent Green is no longer FICTION to us conservatives, didn’t you know that?”
Dave R.
August 12th, 2011
9:53 pm
BTW, Hiya, Dusty!
Braves not playing tonight?
david green
August 12th, 2011
9:55 pm
Lil’ Barry Bailout:
1) There is no right to buy or purchase healthcare.
2) Conservatism is Stealth Fascism
3) Socialism and Fascism are different sides of the same coin just as liberalism and conservatism
4) Both liberals and conservatives are like the pigs in Georgia Orwell’s Animal Farm who declared that all animals are equal but some animals are more equal.
Dusty
August 12th, 2011
10:01 pm
David Green,
If there ever was a sheep, you sound like one, an old one at that. Still harping on Bush when Obama is about as popular as chicken pox with a string of broken promises and a rising debt that he wants to increase (with such as Obamacare.)
Have fun with your mindset on anything but todays problems. Keep blaming Bush while Obama is president. But someone should tell you. Things are NOT going good for Obama. Really!! Now that’s the truth you want to ignore.
Hillbilly D
August 12th, 2011
10:01 pm
Didn’t George W Bush have more votes after the recount than before? That’s my recollection.
Dusty
August 12th, 2011
10:08 pm
Hi Dave R,
The BRAVES are playing! Yes sir!! They were doing quite well the last time I checked. I hope Minor is still going strong. Such a good team!! .
david green
August 12th, 2011
10:14 pm
Hillbilly D:
According to former New Jersey Superior Court Judge Andrew Napolitano in his book Lies the Government told you: Myth – Power and Deception… {the supreme court} assaulted federalism by denying the state of Florida the right to manage its mechanisms of voting and interpreting its own laws.
Lil' Barry Bailout (Revised Downward)
August 12th, 2011
10:15 pm
david green: There is no right to buy or purchase healthcare.
—————————–
Ever heard of the equal protection clause? Try denying someone the ability to purchase healthcare somewhere and see what happens.
Hillbilly D
August 12th, 2011
10:17 pm
Dusty’s Braves beat up on the Cubs. Sort of like a light workout.
Dave R.
August 12th, 2011
10:18 pm
“According to former New Jersey Superior Court Judge Andrew Napolitano in his book Lies the Government told you: Myth – Power and Deception… {the supreme court} assaulted federalism by denying the state of Florida the right to manage its mechanisms of voting and interpreting its own laws.”
Which might be why he’s a commentator on Fox News and no longer a sitting judge.
Dusty
August 12th, 2011
10:23 pm
HillBilly D
Braves! Just a light “workout!! I’ll say. BRAVES won 10 to 4! That’s what I call a wipeout!!
david green
August 12th, 2011
10:24 pm
Dusty I do not support obama or the democratic party nor the republicans the conservatives champion because I’m sick and tired of being lied too by both the liberals and the conservatives. On the other hand I’m also tired of reading about people being forced into bankruptcy by the healthcare system which enriches itself at the expense of the sick and dying like a vulture feeds on roadkill. And of the insurance companies whose business model was intentionally designed to fleece their customers. At least Obama is trying to remedy these abuses and until conservatives are willing to bring a better idea to the table they need to stop whining like a baby who needs its diaper changed.
gator24
August 12th, 2011
10:26 pm
I guess the 30 to 50 million people who don’t have health insurance will continue use the Hospital emergency rooms for free. Ignorance is bliss. Unbelievable
Dave R.
August 12th, 2011
10:27 pm
“until conservatives are willing to bring a better idea to the table”
They did.
The Dem majority in the House didn’t even let their ideas get to committee.
david green
August 12th, 2011
10:27 pm
Lil’ Barry Bailout show me in the Constitution and the Bill of Rights where it states that an individual has the right to purchase healthcare. Put up or shut up!
Don
August 12th, 2011
10:32 pm
The problem with comparing this to auto insurance is that you are only required to purchase insurance to protect the OTHER person. You don’t have to have insurance to replace your own car. In this case insurance is only required to protect the other person. Most people purchase insurance on their own car because the gov. won’t buy them a new car when they wreck the first one.
david green
August 12th, 2011
10:33 pm
Dave R. wrote:
“until conservatives are willing to bring a better idea to the table”
They did.
The Dem majority in the House didn’t even let their ideas get to committee.
___________________
Too bad so sad Dave R. that’s what happens when a political party chooses to serve the financial interests of their big business campaign contributors instead of faithfully serving the people who elected them into office. Simply put the republicans had their chance when bush was in office but choose instead to pursue the policies that ultimately led to the collapse of the economy on bush’s watch. They waited too late.
Lil' Barry Bailout (Revised Downward)
August 12th, 2011
10:34 pm
david green, unless you believe the Civil Rights Act of 1964 is unconstitutional, everyone has equal access to public accomodations such as health care providers. If you want some health care, go out and buy some. No one can stop you.
Prove me wrong. Didn’t think so.
Lil' Barry Bailout (Revised Downward)
August 12th, 2011
10:35 pm
Auto insurance is only required if you’re such a loser that you can’t self-insure.
david green
August 12th, 2011
10:36 pm
Lil Barry Bailout conservatives don’t actually believe in the equal protection clause else they would argue that every one should be treated equally and not just the moneyed class: those who can afford to buy equal protection.
Dusty
August 12th, 2011
10:43 pm
david green,
I’m not surprised that you cannot find a political system that suits you. So everything is rotten from politics to insurance companies and just about everything else. The vultures are out to get you!! Yuo blame everybody else for your problems.
Wake up, buddy. You live in the best country in the world and don’t even know it.
President Obama may be trying to help us (but but but) haven’t you noticed? He is steadily increasing the debt of the USA which is hanging over us like Damocles sword. But he does not SEEM to notice. His lack of experience and poor economic knowledge become more obvious every day. He wants to spend more money to get out of debt. Now there is something defintely wrong with that logic.
Dave R.
August 12th, 2011
10:43 pm
david green, you won’t find me defending GWB on any site, with the exception of how he handled 9/11.
Otherwise, his term (and that of the GOP Congress he had pretty much sucked.
However, your comment back to me was what is known as a deflection. When you can’t defend your own position, or cannot debunk mine, people like you revert to blaming others or changing the subject. As such, my comment wasn’t about what the Congress of GWB failed to do, but was one that described what the GOP wasn’t ALLOWED to do during the only debate on health care reform at the time.
Now, if you wish to stay on point and discuss / debunk that point I made, please do so. But don’t go off on a tangent that does not apply to the point being made.
Michael H. Smith
August 12th, 2011
10:44 pm
MarkV
August 12th, 2011
9:49 pm
In the equivalence I was writing about, I would then say:” Health insurance is required because we live in this country.”
And you dare to talk about nonsense, silliness and I’ll go you one worse “the damn stupidity” after making that kind of remark in a response!?
Nah, you are not worth the time of a sensible adult conversation let alone logical debate. The supreme court will take obumercare up very soon I’d predict, now that the case is ripe and two circuit courts offered differing opinions.
Stick around socialist liberals, I got an itch neath my skin that says you Marxist are not going to like what shall become the settled law of the land.
Yes, the settled law…
I noticed alot, mostly that you are a Marxist and argue the same silly trite all fascist socialist rely upon.
Dave R.
August 12th, 2011
10:45 pm
Oh, and the “show me where in the Constitution” argument is somewhere on par with third or fourth grade debating skills.
The Constitution is a LIMITING document on government powers, and was not designed to enumerate each and every product / situation government may control.
david green
August 12th, 2011
10:47 pm
Just as I thought Lil Barry Bailout instead of taking the challenge you chose the conservative cowardly trick of bringing out the smoke and mirrors. It just so happens that in my opinion the Civil Rights Act of 1964 is unconstitutional because Congress is imposing the rights of the minority upon the majority which became necessary to stop the oppression of that minority by the majority. It is called: Turn about is fair play!
Dave R.
August 12th, 2011
10:49 pm
Michael, the interesting thing is how the Supremes will approach this ruling, and it is based on what each side does on appeal.
Does the government appeal only the mandate? Probably.
But does that mean the states appeal the severability aspect?
The Supremes might still give us a win-win (or heaven forbid, a lose-lose) if both should happen.
Lil' Barry Bailout (Revised Downward)
August 12th, 2011
10:49 pm
david green must not be familiar with Bush v. Gore if he thinks conservatives don’t believe in equal protection.
david green
August 12th, 2011
10:56 pm
Actually Dave R. I told you the truth something that your itching ears have so stomach for. Now the name of the healthcare reform bill put forth by republicans {social Darwin’s} that did not pass was?
david green
August 12th, 2011
10:58 pm
That’s right Dave R. the Constitution is a limiting document and its too bad that republicans before and after Lincoln have disregarded that fact when it suits them to do so.
david green
August 12th, 2011
10:59 pm
Lil Barry Bailout Actions speak louder then words.
Michael H. Smith
August 12th, 2011
11:01 pm
Dave R., I’d say win-win, and oh do I ever hope the severability aspect goes the same way the recent immigration ruling went in support of States Rights “broadly viewed” . Broad enough to include strict reliance on the Federalist papers 41 and 45.
I want to roll back Hilary’s fascist clock to the time before Woodrow Wilson and Democrats stepped outside the Constitution to legislate, so the socialist pee-gressives in this country howl… oops bray, for a 1,000 years.
Dave R.
August 12th, 2011
11:02 pm
david green, there were actually a minimum of 7 different bills submitted to Congress by Republicans regarding health care reform in 2008 – 2009. NONE of them got past Democrat-controlled committees. Rather than trying to fix everything (badly) as the Democrat bill did, the GOP attempts were very specifically targeted to address certain issues that needed intelligent reform.
david green
August 12th, 2011
11:02 pm
Dusty wrote:
President Obama may be trying to help us (but but but) haven’t you noticed? He is steadily increasing the debt of the USA which is hanging over us like Damocles sword. But he does not SEEM to notice. His lack of experience and poor economic knowledge become more obvious every day. He wants to spend more money to get out of debt. Now there is something defintely wrong with that logic.
__________________________
Dusty you would have a point if the republicans didn’t waste our tax dollars on meddling in the affairs of other nations and weren’t so hell bent on establishing an American Empire.
Dave R.
August 12th, 2011
11:06 pm
“That’s right Dave R. the Constitution is a limiting document and its too bad that republicans before and after Lincoln have disregarded that fact when it suits them to do so.”
Thanks for admitting that your “show me where in the Constitution” argument is so very third-grade, david green.
And don’t dismiss Lincoln in disregarding the Constitution, nor all Democrats, david. Lincoln was the worst Federalist-empowering President we had up until that time, and for many years afterwards until we were cursed with Teddy Roosevelt. Then we were doubly cursed with his misbegotten cousin Franklin Delano.
Dave R.
August 12th, 2011
11:07 pm
Michael, I’m hoping for the win-win, but Justice Kennedy is such a crap shoot on many issues.
Dusty
August 12th, 2011
11:08 pm
gator 24
Just because you don’t have health insurance does NOT mean that you are sick. It may mean that you consider yourself healthy and don’t need it(most young people). Or they may not be able to afford it. Or they may go to the ER and pay for one time visits. Free is for those who really do not have the money. You should find out more about healthcare in America before you condemn it.
david green
August 12th, 2011
11:08 pm
Dave R. wrote: Rather than trying to fix everything (badly) as the Democrat bill did, the GOP attempts were very specifically targeted to address certain issues that needed intelligent reform.
______
Now that is a real hoot. I’ve been observing the republicans for years now and they have yet to demonstrate a willingness to serve the people instead of their campaign donors much less actual intelligence unless your equating social Darwinism and self centerness as intelligence.
Abella
August 12th, 2011
11:09 pm
If the mandate is struck down but the rest of the laws stays, then the health care risk pools will have adverse selection. This will result in higher costs that will be spread throughout the health insurance industry. Both individual and employer based plans will likely see higher increases than historical averages. The current trend of employers dropping health insurance for employees will escalate in those industries that can get away with it. I don’t think you will see socialized medicine any time soon because that concept is so unpopular. I do think insurance fraud will escalate as people try to share the costs of one policy. I also think more peole will try to get onto Medicaid while the US can still afford it and more people will also try to get SSD so they can get on Medicare.
Right now insurance companies can refuse to sell health insurance plans to any individual not meeting the underwriting requirements filed with the states insurance commissioner. They can also decline to make offers to employers – and they will if the risk is too great.
Obamacare
yuzeyurbrane
August 12th, 2011
11:10 pm
Decision from 11th Cir. is not a great surprise. Even if they ruled the other way, the law’s validity would have eventually been determined by the Supremes. How they will rule is an open question. Now, if the Supremes follow 11th Cir. it would present practical problems generally along the lines Kyle points out. This in fact could lead to result Kyle would not like–the Court upholding the law. Rather than draconian steps Kyle suggests, the good parts of the law could be saved just by modifying the provision re insurance requirement to make it incentive instead, like currently done with Medicare Part B. You aren’t required to purchase Part B when you turn 65, but there is an increasing premium surcharge for each year you delay. Most sign up for Part B relatively soon. Americans will otherwise like the new law despite all the scare tactics being utilized now and Congress will be under pressure to make this 1 modification to make the law feasible. Additionally, the private insurance companies will not want the costs of no modification and have the incentive of millions of new customers if they have the incentive modification, so they will be leaning on Congress to do the right thing. That is the reasonable way to go. But, of course, there are no reasonable Teapeople, so maybe we will choose the banana republic method of health care.