ACA Without A Mandate?

By Big Tent Democrat, Section Law Related
Posted on Wed Jun 08, 2011 at 03:21:15 PM EST
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This report on the oral argument before a panel of the Eleventh Circuit on the constitutionality of the Affordable Care Act might indicate that the panel is prepared to strike down the individual mandate portion of the law. But what about the rest of it?

Judge Frank Hull, the third member of the panel, repeatedly asked the lawyers about the possible effect of the court striking down the mandate, while upholding the rest of the law. She said the government had exaggerated the importance of the mandate. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.

Things that make you go hmmm. Personally, I'll believe that an appellate panel will strike the mandate down when I see it, but I've been wrong before.

Speaking for me only

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ACA Without A Mandate? | 36 comments (36 topical)

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Yes, BTD, 11th Circuit Judge Frank Hull (5.00 / 1) (#7)
by Peter G on Wed Jun 08, 2011 at 03:44:45 PM EST

is a woman. No need to "sic" her name.

Thanks (none / 0) (#9)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:47:48 PM EST

Wasn't sure. Note my question mark.


I did note the question mark. (none / 0) (#15)
by Peter G on Wed Jun 08, 2011 at 04:13:55 PM EST

Hence, my answer. ;)


I'd think wiki would include info as (none / 0) (#20)
by oculus on Wed Jun 08, 2011 at 05:43:09 PM EST

to why her parents named her "Frank.' Got to be a story there.


: Dunno (5.00 / 2) (#29)
by Peter G on Wed Jun 08, 2011 at 10:58:10 PM EST

But I sure hope she has a twin brother named Ernest! Seriously, could it be "a Southern thing"? Or maybe to deflect sexism, like George Eliot?

If you don't get a subsidy, you might be (5.00 / 0) (#17)
by MO Blue on Wed Jun 08, 2011 at 05:23:31 PM EST

thrown into using the exchanges and incurring the entire cost of the insurance whether you want to or not.

At least 30 percent of employers are likely to stop offering health insurance once provisions of the U.S. health care reform law kick in in 2014, according to a study by consultant McKinsey.
The shift away from employer-provided health insurance will be vastly greater than expected and will make sense for many companies and lower-income workers alike," according to the study, published in McKinsey Quarterly.
...
Among employers with a high awareness of the health reform law, the number likely to drop health coverage for workers rises to more than 50 percent, the report predicted.
The numbers compare to a Congressional Budget Office estimate that only about 7 percent of employees currently covered by employer-sponsored plans will have to switch to subsidized-exchange policies in 2014, McKinsey said. link

At the rate things are going, chances are (5.00 / 2) (#21)
by Anne on Wed Jun 08, 2011 at 06:10:09 PM EST

there will be even more people who don't have employers by the time we get to 2014...and probably fewer employers, for that matter.

The lost opportunity to truly reform this system, to release the stranglehold the insurance industry has on the nation's economy, is criminal in its magnitude and scope; I have no doubt the whole thing will be in worse shape even faster than most of us thought.


When all is said and done (5.00 / 2) (#22)
by MO Blue on Wed Jun 08, 2011 at 06:33:32 PM EST

the Affordable Care Act will not IMO be affordable or provide actual health care.


No, but (5.00 / 2) (#23)
by Zorba on Wed Jun 08, 2011 at 06:36:15 PM EST

it will enrich the health insurance companies. And wasn't that the point? :-(


: Now that you mention it (5.00 / 1) (#28)
by MO Blue on Wed Jun 08, 2011 at 10:14:39 PM EST

Yes, that was the point.

They'd better (none / 0) (#18)
by TeresaInSnow2 on Wed Jun 08, 2011 at 05:38:30 PM EST

They'd better repeal it if they're going to then. Do it BEFORE it is enacted. Some of the toothpaste is already trickling out of the tube, but that phenomenon is going to be a BIG SQUIRT (so to speak).


Without (none / 0) (#1)
by Ga6thDem on Wed Jun 08, 2011 at 03:35:14 PM EST

a mandate I would consider the ACA a much better piece of legislation though it really doesn't solve most of the problems in this country, it might help along the margins.

It won't survive without it (5.00 / 1) (#4)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:41:14 PM EST

The insurance companies will strike it down.


Without a mandate I consider it (5.00 / 1) (#5)
by Militarytracy on Wed Jun 08, 2011 at 03:41:28 PM EST

virtually meaningless so fast it isn't even funny. The only thing it was good for was establishing universal coverage as a norm, after that many other negotiations could come.


I understand (5.00 / 1) (#11)
by Ga6thDem on Wed Jun 08, 2011 at 03:54:00 PM EST

what you're saying. I was thinking the advantage of removing the mandates would be the fact that people wouldn't be forced to purchase junk insurance. A few people might benefit from the subsidies if they last.


: What has evolved with the junk (none / 0) (#25)
by Militarytracy on Wed Jun 08, 2011 at 08:16:34 PM EST

insurance disturbs me too, so yes....I guess in that light it has crumbled all the way around. It's easy for me to forget about the junk insurance aspect since that will never be my fate unless something very dire happens. I get Tricare for Life now.

Ironically, (5.00 / 2) (#16)
by Zorba on Wed Jun 08, 2011 at 05:21:27 PM EST

Richard Nixon's proposal for health care reform did not have an individual mandate, but it did have an employer mandate, for all employers.

Nixon also embraced tighter regulation of insurers, calling on states to "approve specific plans, oversee rates, ensure adequate disclosure, require an annual audit and take other appropriate measures." No illusions there about how the magic of the marketplace solves all problems.

You can read Nixon's proposal, in his own words here.


Do these judges need remedial instruction (none / 0) (#2)
by andgarden on Wed Jun 08, 2011 at 03:36:10 PM EST

on the meaning of "Necessary and Proper?"

They are all bound by the Supreme Court's unchallenged determination that insurance is interstate commerce. Congress has found the minimum coverage provision to be useful in its scheme to regulate that market. Unless there's some 5th Amendment concern (and there isn't), Congress is on totally firm ground.

Heh (none / 0) (#3)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:40:19 PM EST

So it would seem.

Does this make you a legal realist yet?

Here's the legal reality though - insurance companies will freak if ACA survives without a mandate.

What will an en banc 11th say? Cuz it seems this panel might strike it down, 2-1.


Shouldn't "legal realism" wait 'til (5.00 / 1) (#19)
by oculus on Wed Jun 08, 2011 at 05:40:57 PM EST

after the bar exam(s?


I count a 5:5 split (none / 0) (#6)
by andgarden on Wed Jun 08, 2011 at 03:43:34 PM EST

Awkward (none / 0) (#8)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:47:15 PM EST

But not a precedent, thus not necessarily a circuit split.

That is an very interesting question. I suppose the government would have to seek SCOTUS review, can't have the law not apply to the defendants in Hudson's court.

Pretty funny if Cucinelli gets screwed on this one, he loses but gets o SCOTUS review of his case.


I haven't taken Appellate Procedure (5.00 / 1) (#10)
by andgarden on Wed Jun 08, 2011 at 03:49:16 PM EST

so I'll take your word for it. As you say, the Fourth Circuit is an easy ride for the Government all the way up.


: Ties aren't precedents (none / 0) (#12)
by Big Tent Democrat on Wed Jun 08, 2011 at 03:59:52 PM EST

But the result would be upholding Hudson's rulings for the defendants before him, in theory.
But if their circuits rules against them? And someone else has standing? Then they lose.
PRetty interesting really.
Actually a very good argument for why the SCOTUS has to take these cases.

Call the Mandate a Tax and be Done With It (none / 0) (#13)
by ScottW714 on Wed Jun 08, 2011 at 04:06:46 PM EST

Without the mandate, it's pointless, the entire purpose is to ensure people get insurance, not wait until they need it. If the mandate falls so will everything else, because insurance can argue it's not fair to only insure people who need it.

I find it funny that every state whining about the mandate, mandates people carry auto insurance.

So the logic is: (5.00 / 1) (#24)
by me only on Wed Jun 08, 2011 at 07:31:11 PM EST

if you have a car the state mandates that you have car insurance =
if you have health the state mandates that you have health insurance.

Can't put my finger directly on the difference...


Right, but (none / 0) (#26)
by NYShooter on Wed Jun 08, 2011 at 08:40:37 PM EST

The State doesn't mandate that you must own a car.


Right, But it Mandates You Pay Taxes... (none / 0) (#30)
by ScottW714 on Thu Jun 09, 2011 at 08:23:40 AM EST

... whether you own a car or not. Granted not all taxes are for roads, but they are still a huge portion of the budget. Ditto for kids and mandated property taxes.

The point was it's a mandate, mandated by states that appose, on legal grounds, mandates(this year apparently).

If you don't want insurance, fine, but don't think you should get it at our costs when you decide you need it. Let insurance set the costs to the non-subscribers who decide before surgery they need insurance or reject them.

The reason insurance of any kind works is because people who don't need help pay in, so there's a fund to help people who do need it. Remove the mandate and you remove people paying in and are left with only the payouts.

Who gets insurance, when you can go in, get diagnosed, then buy insurance because pre-existing conditions aren't allowed ? Those advancements will have to be removed, and we will be back to 2008.

The mandate is the base of the entire legislation.


But don't you see what the (5.00 / 2) (#32)
by Anne on Thu Jun 09, 2011 at 09:16:37 AM EST

real problem is? It's that somehow having insurance is one's ticket to "affordable" health care, when in reality, it is a barrier.

As for things like paying taxes when one doesn't have a car, I would find it hard to believe the person without a car never derives any benefit from the fact that we have roads and highways and airports and public transportation: the goods you buy don't just appear in the stores where you shop, do they? You can't teleport yourself to the places you want to go, can you?

As for paying taxes for schools when you don't have children, society as a whole derives a benefit from having a public education system (granted, it could be doing a better job of educating, but that's another whole discussion): I can't speak for you, but I don't think we really want a workforce that comprises millions of people who never had the benefit of any education because they couldn't afford a private one. And I think the disparity that exists between the haves and the have-nots would be vastly greater if we weren't all paying - those of us who are working, anyway - for every citizen to be guaranteed an education.

The truth is that we know the current health whatever system is being driven by the forces of greed, by an industry that is never going to be satisfied no matter how much money it makes; it will never, ever stop trying to deny coverage for those it insures, which translates into a denial of care for the majority of the population. And with a Congress that is unwilling to impose stringent regulation and states that look the other way on exorbitant rate increases and pay lip service to regulation, the people of this country will continue to be less healthy than those who live in countries where health care is treated as a right and not a privilege. We will continue to have a significant economic drain on our resources, with nothing to show for it.

Insurance - at least the way we do it here - is the problem, not the answer, and until we face that, it will be one crisis after another.


: Sorry, but... (none / 0) (#34)
by ScottW714 on Thu Jun 09, 2011 at 02:07:00 PM EST

... even though I agree wholeheartedly with everything you wrote, it's not reality. Reality is that insurance is woven into the bill. Your arguement was settled years ago, and insurance won. I don't like it either.
I wasn't complaining, just making note that we have taxes, which are mandates. I went off topic a bit, but I have no problems paying taxes that don't directly benefit me, like property. Because of the reasons you listed and others that have nothing to do with the topic at hand.
I also agree about insurance, but that is an entirely different conversation, which I agree insurance is the problem. IMO the government should be in the 'business' of dealing with people's health because they are not cost driven, or at least not as cost driven as the private sector is.
--------------------
But back to reality, the mandate is the foundation to which nearly all of the Health Care bill is built on, remove it and everything else collapses.
What is your arguement here, do away with the whole bill ? Seems like you want something that has nothing to do with the legislation passed, me too, but we are simply past that discussion. I am simply dealing with what is on the table, not what I would like to see on the table.
It's why republicans want the mandate gone like yesterday. Once it's removed, insurance can go back to denying coverage and/or picking customers, which puts us back to square one.
Seems like the point is being missed here, w/o a mandate, the entire bill will be worthless, period.
Seems like the mandate debate is boiling down to what should have passed, rather than what did.

At least according to Katyal (none / 0) (#14)
by andgarden on Wed Jun 08, 2011 at 04:10:31 PM EST

arguing before the 4th Circuit, the tax argument has been preserved.


Can you explain (none / 0) (#35)
by Makarov on Thu Jun 09, 2011 at 05:02:43 PM EST

how the individual mandate is not a "head tax", prohibited in Article I Section 9:

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

The 26th Amendment permits income to be taxed without respect to census proportion, but the penalty/tax for the individual mandate, as I understand it, seems to be a direct tax for existing, and unrelated to income.

E.G., if you had no income in a particular year but failed to qualify for Medicaid under asset tests, you would still be subject to the individual mandate and its penalty.


: It's an Indirect Tax/Fee for Future Services (none / 0) (#36)
by ScottW714 on Fri Jun 10, 2011 at 08:37:28 AM EST

Pretty sure there are a lot of angles you could argue as far as what it is and how it's assessed, which to me is the problem.
They should have had the guts to call it a tax and given people with insurance a credit. Exact same result w/o all the current issues with the state AG's and people digging into the Constitution trying nullify it.
They wouldn't have to track the non purchasers and everyone would have insurance that is on the grid.

Dem dishonesty (none / 0) (#27)
by diogenes on Wed Jun 08, 2011 at 10:10:46 PM EST

Saying that the healthy must be "forced" to pay to support the uninsured is nothing more than a stealth tax increase. They should have raised taxes to pay for health insurance for all when they had the mandate and overwhelming majorities in 2009. Obama brought this on himself.

: Problem Is... (5.00 / 1) (#31)
by ScottW714 on Thu Jun 09, 2011 at 08:51:18 AM EST

... in this political climate raising taxes is worse than drowning kittens on YouTube for fun.
Or rather that's how these clowns see it. I can't say I would mind a tax increase so long as it's going to something w/i our borders to help our people.

The reality is (none / 0) (#33)
by TeresaInSnow2 on Thu Jun 09, 2011 at 10:10:08 AM EST

...if the mandate is overturned, the (un)affordable insurance law will also die....except that all the nasty cuts that insurance companies have already implemented to make insurance even more "affordable" will remain.

Much of the damage is already done and insurance companies will find no reason to undo it.