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
Michael H. Smith
August 12th, 2011
11:11 pm
david green
August 12th, 2011
11:02 pm
Oh really, it’s the republicans is it david green? In the last century, david green, what political party led this country into most of the wars this country fought?
Don’t hurt yourself straining to come up with an answer, it was “YOUR DAMN MEDDLING UNITED NATIONS BUILDING DEMOCRATS”!
Ray
August 12th, 2011
11:13 pm
Where is the replacement? Human suffering and decency cried for health care insurance reform, but Georgia has deaf ears, and no soul. Now that the health care reform bill might blow a hole in the deficit, you are willing to look at reform, now (hum)?!!! You are all heart, Kyle.
david green
August 12th, 2011
11:14 pm
One of the best things Teddy R did was to force the meat packing companies to clean up their act. Then came along the fast food restaurants and their owners friends in congress {once again republicans} who conspired to destroy those reforms so that once again the public is forced to endure having tainted food foisted upon them. Read Fast Food Nation.
Abella
August 12th, 2011
11:15 pm
Helps everyone get covered and has some measures, like the individual mandate, to reduce adverse selection. It doesn’t reduce costs and leaves too many loop holes for adverse selection within the risk pool. It also doesn’t address physician shortages or malpractice costs, both of which can lead to higher insurance expenses. The GOPs marketplace ideas will help with costs a little bit but not a lot. It will really only help in States that don’t already have adequate competition, like AL, or in states with higher than avg coverage requirements.
Anthony Kennedy will decide whether the individual mandate is constitutional.
Dusty
August 12th, 2011
11:16 pm
My goodness, now David Green has gone to “Republicans establishing an empire”.
I did not know OBAMA was a Republican. He is the latest to send troops to a fight. Libya, that is.. and without any approval from Congress. Some empire. Some Republican! Ya coulda fooled me!
david green
August 12th, 2011
11:17 pm
And yet Michael it was Lincoln {a republican} that set the precedent and the example for those dems you abhor.
Dave R.
August 12th, 2011
11:18 pm
david green, as always you are free to debunk my assertions with facts, or uninformed opinion.
Your choice.
Thus far I’ve seen none of the former, and much of the latter from you.
david green
August 12th, 2011
11:20 pm
Dusty
The fact of the matter is that republicans and democrats are competing in a race to destroy this country in order to impose their own special brand of tyranny on the rest of us. The debate over healthcare is just one of many sideshows to divert unwanted attention from their real agenda.
david green
August 12th, 2011
11:22 pm
Thank-you Dave R for proving my point about there being no such animal as an honest politician.
Dave R.
August 12th, 2011
11:26 pm
“And yet Michael it was Lincoln {a republican} that set the precedent and the example for those dems you abhor.”
Teh stoopid. It burns . . .
Precedent and example? Really? You’re going to hang your hat on THAT?
Let’s see, Lincoln went to war to keep the U.S. together as a nation. Some still argue that it might have been better to just let the South go.
Every other Democrat went to war against a foe that hadn’t threatened American shores. WWI could be argued that it would have been won without our help. WWII cannot. But Korea and Vietnam didn’t affect our national security interests one bit, while WWII could be argued that it would have eventually been the case.
But other than that the Late Unpleasantness had nothing in common with every other war we’ve fought, you nailed it, david green!
Michael H. Smith
August 12th, 2011
11:28 pm
And yet Michael it was Lincoln {a republican} that set the precedent and the example for those dems you abhor.
Name the precedent you didn’t cite and I’ll be glad to counter your on that line of thought.
Dave R.
August 12th, 2011
11:28 pm
“Thank-you Dave R for proving my point about there being no such animal as an honest politician.”
Really, david? Point out any lie I have told. Go ahead. be detailed about it.
I just want to nail your misbegotten hide to the blogging wall when you’re proven wrong.
Mary Sue
August 12th, 2011
11:29 pm
Dusty, you are flat out wrong. The health care insurance bill has already helped a lot of people. Specifically: People who were denied access to health care insurance (for the lamest of reasons), can now buy insurance directly from the government until 2014, when the health care insurance polls will be fully operational. It is expensive, but I am thrilled to have coverage. It is just too bad that Georgians had no where to go to get protections, like most all the other states provided. Has anyone heard a peep from our new Insurance Commissioner. Nay, he still allows Georgia insurance companies to cherry pick their clients. If you are over-the-hill, the insurance companies might as well advertise
” 50+ Need not apply”.
Steve
August 12th, 2011
11:29 pm
Sigh. We shoot ourselves in the foot with our own ignorance.
My Canadian relatives just laugh at the health insurance nonsense here – they love their system of base care covered via a large pool and you get supplemental (often free via your employer) insurance to cover the deductibles and gaps. The poor get base coverage, the middle and upper classes basically have free healthcare and GOOD healthcare. They pay less per person on this than we do.
But in America, we are stuck with a system of middlemen, ridiculously high pharmaceutical costs, and insurance rates that have been escalating for decades.
But say “single payer” and the nutjobs come out of the woodwork screaming socialism. We only hurt ourselves via buying into the propoganda of big business and the wealthy that control us. Wake up people – this isn’t rocket science.
Dusty
August 12th, 2011
11:30 pm
Well, I am going and get some sleep. Now david green is criminalizing Burger King (my favorite) and other fast foodies as dispensing spoiled food. If that were true, I’d be dead.
This poor guy really has a bee in his bonnet (and not much else). May he find some sunshine tomorrow because he has not seen any today..
Michael H. Smith
August 12th, 2011
11:34 pm
Canada awaits all you socialist single payer loving comrades, anytime you Marxist nut-jobs want to leave it’s find by me.
Dave R.
August 12th, 2011
11:37 pm
Canada is a relatively good system, but it suffers in the category of wait times. Not a deal breaker, but they do have some serious issues with common specialists we can see in days, vs. their being able to see the same in months.
Steve
August 12th, 2011
11:38 pm
“Canada awaits all you socialist single payer loving comrades, anytime you Marxist nut-jobs want to leave it’s find by me.”
I rest my case. We are letting the idiots in America take the rest of us down via their ignorance.
Steve
August 12th, 2011
11:39 pm
Try to get into seeing a good dermatologist in town in Atlanta – takes months. Live in the country and need a good specialist? Same problem here in America.
Michael H. Smith
August 12th, 2011
11:41 pm
Yeah and one other thing Dusty, BK would be out of business.
Then again, this is still America, if you want to eat nothing but junk food to the point that it kills you, then that’s for you to decide, not me or the GUB’MENT!
PS. So long as you pay your medical bills and pay for your funeral.
Dave R.
August 12th, 2011
11:44 pm
Steve, there is a huge difference in waiting to see “a good dermatologist” in Atlanta (heaven forbid we don’t look our best!), and waiting months for a CT scan or MRI. And how’d you like to wait six months to see a cardiologist? The wait alone could exacerbate the situation you’re seeing him or her in the first place!
I can see any of those within days, maybe a week and a half at most. Not so in Canada.
Michael H. Smith
August 12th, 2011
11:44 pm
Your case needs a rest. I’m not stopping you from getting anything. You have only your own inability or stupidity to blame for your complaints not me.
Dusty
August 12th, 2011
11:44 pm
Mary Sue,
“Now buy their insurance from the government!” There’s your ticket. Get the taxpayers to pay for almost everything if you can and just add it to the great big ol’ debt hanging over us.
Maybe you and Steve can move to Canada (or Cuba) and that will keep you strong and healthy. But keep our telephone number handy. When surgery gets tough, Canadians come to the USA.
When the population of Canada equals that of the USA, let me know how it is working out. Or check on Massachusetts. Seems government health care did not work out too well when tried in that state. But it worked in Canada. OK.. They must have a better plan than ObamaCare.
G’nite..
Dave R.
August 12th, 2011
11:45 pm
It appears that david green cuts and runs when challenged with providing proof, doesn’t it, Michael?
Michael H. Smith
August 12th, 2011
11:53 pm
Yep!
About the same goes for these socialist yo-yos that claim we are the reason they can’t get healthcare, when what they won’t admit to, is that since they are entitled they just want us or someone else to pay their medical bills, food cost, housing cost, education… Oh well you get the picture.. same old socialist trite: You and the world owes me, because I’m here and alive!
Dave R.
August 12th, 2011
11:55 pm
With that, I’m outta here for the evening.
Moderate Line
August 13th, 2011
6:24 am
Dave R.
August 12th, 2011
8:50 pm
Auto insurance is mandated (however wrongly) because you use the government-provided road system they built. And arguably, there is a public safety component to driving which could come under the control of government.
++++++++++
Just because the state owns the road why would that give the state the right to require care insurance? Typically, when an accident occurs it has no impact on the owner of the road. There are roads which are privately own does this mean that such a requirement is void on a private road.
The reason the state requires car insurance to be purchases has nothing to do with who owns the road. There are private toll rolls and I believe the state requirement is still in place. It is simply about ensuring that the person at fault in an auto accident has enough insurance to cover the cost of an accident in which they are libel.
Moderate Line
August 13th, 2011
6:51 am
The most interesting thing about American healthcare is it provide great access at a high cost and provides mediocre results.
The United States ranks 1 in access, 180 in cost per capita and 72 in pure results. What is interesting is the main concern of the left is distribution and the United States performs a fairly modest 32.
The main reason I oppose Obama care is it will make modest improvements in healthcare distribution with probably an increase in cost where we are already performing poorly.
However, those who defend our one of kind private distribution of health care need to look at the performance and cost of out system. It is simply not performing very well and it cost allot.
http://www.photius.com/rankings/world_health_systems.html
Lil' Barry Bailout (Revised Downward)
August 13th, 2011
6:55 am
Steve: We are letting the idiots in America take the rest of us down via their ignorance.
————————
9% unemployment, $1.5 trillion annual deficits, record numbers on food stamps, record low labor participation rate. Amen, Steve.
Moderate Line
August 13th, 2011
7:02 am
Lil’ Barry Bailout (Revised Downward)
August 13th, 2011
6:55 am
Steve: We are letting the idiots in America take the rest of us down via their ignorance.
————————
9% unemployment, $1.5 trillion annual deficits, record numbers on food stamps, record low labor participation rate. Amen, Steve
+++++
For once I agree with you. People like you are bringing us down.
Skip
August 13th, 2011
7:20 am
If you want medical care for all and a AAA credit rating move to one of the other dozen industrialized countries, we have wars to fund.
Phil's Tel-A-Gramm
August 13th, 2011
7:32 am
Dave R,
You’re wrong about roads.
Show Low Here We Come
August 13th, 2011
7:47 am
the “conservative” position is really quite simple – if you are too poor to buy health insurance, then you you are better off dead. that way, you’re no longer a drag on society. only the strong — and strong = rich — survive. ironically, the one tenant of Darwinian theory they do believe in.
RonD
August 13th, 2011
8:39 am
I remember when automobile insurance was not mandatory in Georgia. One of the arguments the state used in making it mandatory was that by requiring all drivers to be insured, the insurance premiums would go down. Sounds good, but when Georgia passed the “no fault” insurance bill, insurance companies started RAISING premiums. When insurance was voluntary, competition kept the premiums down. After it was mandatory, the companies had you over the barrel and raised premiums. Same thing will happen with health insurance.
Dave R.
August 13th, 2011
8:53 am
Moderate, I’m talking about the state’s justification in mandating auto insurance, not my agreement with it.
As I said in an earlier post, I understand their reasoning; I don’t necessarily agree with it.
Either way, when people try to justify a mandate to purchase health insurance by citing the auto insurance mandate, I use the fact that roads are built by the government, owned by the government and maintained by the government, therefore (in the government’s eyes) they can mandate something prior to use.
No such ownership exists in the world of the health care provider, therefore, the attempt to justify the mandate in that world fails miserably.
And Phil is still out to lunch on governments not owning the roads we drive on.
Dave R.
August 13th, 2011
8:56 am
“the “conservative” position is really quite simple – if you are too poor to buy health insurance, then you you are better off dead. that way, you’re no longer a drag on society. only the strong — and strong = rich — survive. ironically, the one tenant of Darwinian theory they do believe in.”
Show, how else would you libs provide us with the food we need to eat? Die quicker, would you, please?
Dave R.
August 13th, 2011
9:01 am
“However, those who defend our one of kind private distribution of health care need to look at the performance and cost of out system. It is simply not performing very well and it cost allot.”
Moderate, there are lies, damned lies, and statistics.
You cannot compare this nation to almost any other in statistical analysis, as we are markedly different from almost every other.
MarkV
August 13th, 2011
9:45 am
Michael H. Smith @August 12th, 2011 10:44 pM.
When you fail in arguments, you resort to insults. Typical
killerj
August 13th, 2011
11:21 am
This is not a decision the government should make period,our forefathers are rolling in their graves,tea party anyone?,never,NEVER will I abide.Go Tea Party.
Mary Sue
August 13th, 2011
12:19 pm
Dusty,
Are you a fool, or just flat out ignorant. Maybe you just made a mistake when you read my blog posting. I make no mention of Canada. I pay steeply for my own health care insurance: $750 a month, for the first year and $653 a month, the second year, I am way more than paying the freight of my current health care insurance cost. But insurance is just that, it provides a hedge against losses for a premium price, if anyone should become seriously ill.
Others should know that it is very difficult (if not flat out impossible) to get private insurance in the State of Georgia once someone approaches retirement age (50+). If you have been denied coverage, go to PCIP.gov to see if you are eligible to buy your health care insurance directly from the US government. It is a stop-gap measure until 2014, when health care pools go into effect.
Yay, Dusty, we all know you want everyone to lose all they have, hurry up to shrivel up and die, or move to Canada or Cuba, if they don’t agree with you. Try to have a nice day!
Allen Walters
August 13th, 2011
12:28 pm
What a wonderful story…Dentists volunteering to help the community in hard times, and helping other Americans!
Maybe the lawyers, plumbers, electricians, handymen, roofers, and others…could also help us help each other.
Maybe the AJC could help with their voice, in reaching out to the community.
(sorry about straying from your current topic)
BGibbons
August 13th, 2011
1:00 pm
30 million uninsured my fat hairy Obama! Let’s dig in and determine who chooses not to get insurance. The already inflated number is padded by 20-somethings who would rather buy booze and clothes because they are bullet-proof. Stop stealing my money. My people have waited 100 years to get the full paychecks we worked to earn. Please get a job and start pulling your weight. Healthcare and home ownership may be a dream, but they are not a right. You really do appreciate it more when you earn it. Like the man said, If you feel like working hard all day, then step in my shoes and take my pay.
Vast Right Wing Conspiracy
August 13th, 2011
1:05 pm
Judge Vinson, as you have already noted, has already shot down the whole thing. Case closed. We need to get the government out of health care, period. Look at what they have done to it.
Moderate Line
August 13th, 2011
2:15 pm
Dave R.
August 13th, 2011
9:01 am
“However, those who defend our one of kind private distribution of health care need to look at the performance and cost of out system. It is simply not performing very well and it cost allot.”
Moderate, there are lies, damned lies, and statistics.
You cannot compare this nation to almost any other in statistical analysis, as we are markedly different from almost every other.
+++
So Ted Williams did not hit .400.
The use of cliches doesn’t prove the statistic right or wrong.
Whether we are markedly different or not our health care system does not perform very well.
Do you have any evidence that our system is performing well?
http://www.mckinsey.com/mgi/publications/healthcare/slideshow/interactive.asp
independent thinker
August 13th, 2011
3:37 pm
If we are going to go to a market driven healthcare system then repeal EMTALA passed by Reagan and have everyone responsible for paying when they go to an emergency room, No more socialist progtams of the insured paying for the unisured – boot the uninsured out and let them rot- then let the insurers write any exclusions they want and pay healthy profits to their shareholders- Isn’t that the system you prefer Kyle ??????????- I am sure your employer makes sure you will be covered so why worry about the undeserving others???They just need to be weaned off the welfare teat.
independent thinker
August 13th, 2011
3:39 pm
By the way that wonderful market driven system with all its waste of capital deserves to be no. 35 in the Worl Health Survey you despise.
NiceDawgDeaux
August 13th, 2011
3:45 pm
MarkV and others:
If we follow your reasoning then all banks should HAVE to loan money even if you have a terrible repayment record (bad credit is a preexisiting condition). Insurance companies insure UNKNOWN risks, not known risks. Also, why should someone take their money to pay for someone elses insurance or medical bills, when their own family members aren’t willing to do that and it is their family. This type of thing goes on when an older member ‘needs” to go on medicaid etc., when the children have the ability to cover their expenses, but instead shift it over to the “Public”, because they will not accept that responsiblity. Michael W. has you pegged, snap out of it and get into the real world! I don’t want to pay for your or your families bills, and you shouldn’t be able to use the government to take my money with force to have you use it.
S. Berg
August 13th, 2011
3:50 pm
Esperenza: Auto insurance is not required by federal law, and is only required by state law if you choose to own a car. There is no choice under Obamacare.
Dave R.
August 13th, 2011
4:15 pm
“Whether we are markedly different or not our health care system does not perform very well.
Do you have any evidence that our system is performing well?”
Yeah, Moderate. I can see it all around me. I can see that (still, despite the freedoms removed) the freest country in the world can have people shot, get into car accidents, eat the unhealthiest food on the planet and drink to excess and yet still out live the majority of the rest of the planet.
I can see people getting MRI’s, CT scans, transplants, joint replacements and some of the best prescriptions in the world within days, not weeks, months or in some cases, never.
I can see people that on their worst days are living better than 95% of the rest of the planet.
So you can take your phony, contrived statistics and shove them where the sun don’t shine, Moderate, and open your narrow-minded eyes to the reality of what actually goes on this country, rather than relying on some insipid talking points from people who don’t like us very much.
Steve - USA
August 13th, 2011
5:03 pm
Where do I sign up for the waiver Obama has given his friends?