How health care reform really could get repealed—and why the repercussions would go well beyond health care.

[one...two...tree 2,762]

Jonathan Cohn, New Republic

Steven Hyder, 40, runs his own legal practice out of a shared office in downtown Monroe, Michigan, a blue-collar town south of Detroit. Mostly he handles relatively routine, low-profile work: bankruptcies, personal injury claims, that sort of thing. But recently, he became part of a much bigger case. He's a named plaintiff in a lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act. The focus of Hyder's suit, which was organized and written by a conservative legal organization, is the "individual mandate"—the requirement that everybody obtain health insurance or pay a fee to the government. The case is one of several moving through the federal judiciary. Sometime in the next few years, at least one of them is likely to end up before the Supreme Court.

A few weeks ago, I spoke with Hyder at his office, in order to learn more about why he had brought this case. He said his motive was straightforward. He's opted not to carry health insurance because he doesn't think the benefits justify the price, and he doesn't want the government forcing him to do otherwise. Okay, I asked, but what if he gets sick and needs hospitalization? How will he afford those bills? It was a distinct possibility, he agreed, patting his waist and noting that he was a little overweight. But those potential bills would be problems for him and his hospital, he suggested, not society as a whole.

When I told him that I disagreed—that his decision to forgo health insurance meant other people would be paying his bills, via higher taxes and insurance premiums—he politely and respectfully took issue with my analysis. The discussion went back and forth for a while, but soon it became apparent that our differences went beyond the finer points of health care policy, to our most basic understanding of the rights and obligations of citizenship. "It's a complete intrusion into my business and into my private life," he told me. "I think it's one big step towards a socialist society and I'm purely capitalist. I believe in supply-side economics and freedom."

If those sentiments sound familiar, it's because you've heard them a lot lately. They're the rallying cries of the Tea Party movement and, more generally, of conservatives convinced the government has gotten out of control. So far, it's proven more effective as a campaign slogan than a governing strategy. This week's congressional vote on health care repeal is purely symbolic because Democrats hold the Senate and President Obama holds a veto. And even if Republicans do recapture the Senate and the White House in two years, they will likely think twice before repealing the program: While public opinion on the Affordable Care Act as a whole is divided, people remain wildly enthusiastic about its benefits.

But judges don't operate within the same constraints as politicians. And this is where the health-care repeal litigation is fundamentally more threatening than attempts to repeal the law through Congress. Experts I've interviewed aren't by any means convinced that the repeal lawsuits will succeed, but they also are not dismissing them out of hand. It's easy to see why. Conservatives have spent decades populating the federal bench with judges who, although hardly monochromatic, share a suspicion of government intrusions into the economy. One such judge has already ruled the Affordable Care Act unconstitutional; another is likely to do so sometime this month, maybe even this week. Although these judges would still represent a minority viewpoint, given that a dozen other federal judges have so far dismissed similar lawsuits or declared the Affordable Care Act constitutional, the votes that count are on the Supreme Court, where conservatives appointed by Republicans hold a 5-4 majority.

Smart legal minds, moreover, can always find plausible precedents or nuances to validate their point of view. And that is exactly what the lawyers making the case for health care repeal have done. The legal debate surrounding repeal is complicated and multi-dimensional. But part of it revolves around a novel philosophical twist: a distinction between activity and inactivity that, repeal advocates say, makes the insurance requirement an illegitimate exercise of federal authority. It's an arcane legal point, but, suddenly, a consequential one, and not just because of its relevance to health care. Some experts believe that a ruling striking down part of the Affordable Care Act could render vulnerable wide swaths of the regulatory state, breathing new life into a notion of limited government this country rejected a very long time ago.

In 1895, the state of New York passed a law prohibiting bakery employees from working more than 60 hours per week. At the time, long hours were forcing them to live and sleep in their tiny workplaces, jeopardizing both their health and that of customers. But Joseph Lochner, a New York bakery owner, didn't like the interference. When an employee filed a complaint about hours exceeding the maximum, and the state slapped Lochner with a $50 fine, he appealed the conviction with a lawsuit claiming the law was unconstitutional.

A few years later, in Lochner v. New York, a 5-4 majority on the Supreme Court held that New York state had indeed overreached—that government had no authority to exercise such "police power" over what was, after all, private economic activity. In the three decades that followed, the Lochner Court, as it became known, would continue to strike down key pieces of Progressive era legislation and, eventually, the New Deal. In some cases, including Lochner, the Court cited a supposedly sacrosanct right to private economic decision-making, free from interference by the states or the federal government. In others, the Court relied on a narrow interpretation of Washington's authority to regulate interstate commerce, effectively limiting it to the management of trade that literally crossed state lines.

Underlying both arguments was a claim that the Framers of the Constitution never envisioned the sort of extensive government intrusions into the economy reformers of the early twentieth century had in mind. And that claim may have been true. But that was in large part because the writers of a constitution ratified in 1787 had no idea what the country would be like in 1897. In fact, the economy had undergone a dramatic, fundamental change in the late nineteenth century—shifting from agriculture to industry and from rural to urban. These changes had concentrated power in large corporations, widened inequality, and created a large class of laborers with precious little ability to provide for their own economic security. The progressive laws of that era were designed to remedy those ills by, among other things, guaranteeing safe workplaces, setting minimum wages, and creating mandatory government-funded pensions for old age.

The conflict between judicial literalism and economic reality finally came to a head during the Great Depression and Franklin Roosevelt's presidency. And, under increasing political pressure, the Court did an about-face—issuing a series of rulings puncturing Lochner's veneration of private economic rights and justifying vast powers for the federal government. The bases for these new powers, according to the Court, were expansive understandings of constitutional clauses authorizing Congress to regulate interstate commerce and to levy taxes so that it could provide for the general welfare. In one of the most critical and influential decisions of that era, Wickard v. Filburn, the Court in 1941 ruled that the federal government could prohibit a farmer in Ohio from growing surplus wheat, even if it was purely for his own family's consumption. The worry wasn't so much the behavior of that one farmer, Roscoe Filburn, but the possibility that many more farmers would do the same thing, affecting the price of wheat and such products as cereal or grain-fed beef that depended upon it.

Health care reform reflects the same impulse as the economic reforms of yesteryear. Just as private markets in banking, investments, and agriculture all failed in the 1930s, threatening to drag down the economy, so too the private market for health care has failed, leaving millions of Americans unable to get essential medical treatment while saddling individuals, businesses, and taxpayers with increasingly unsustainable financial burdens.

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http://www.tnr.com/a...ssions?page=0,1

[james&olya 1,121]

Excellent article Steven! Probably too long and too many polysyllabic words for a certain vocal contingent on here! I personally am not worried about whether this might get overturned. The consequences to the public at large would be overwhelming and would probably bring a very large majority around to a much more progressive point of view that could then be tapped for many other progressive issues, maybe even some common-sense gun control!! This whole issue brings to mind the adage, 'be careful what you wish for, you may get it!'

[mawilson 2,133]

The consequences to the public at large would be overwhelming

What consequences? The bill hasn't affected anyone one bit - most of the provisions don't even kick in until 2014!

We will soon "find out what's in it", to paraphrase Nancy, but if it were to disappear today, the public wouldn't even notice it was gone.

[james&olya 1,121]

What consequences? The bill hasn't affected anyone one bit - most of the provisions don't even kick in until 2014!

We will soon "find out what's in it", to paraphrase Nancy, but if it were to disappear today, the public wouldn't even notice it was gone.

Maybe you aren't aware of the critical condition of american healthcare financing. Fewer and fewer jobs come with decent health insurance. Co-pays and deductibles are ballooning. Insurance companies are getting ever more brazen in cutting off insurance for people when they become ill, and then refusing coverage for any 'pre-existing' condition. Hospitals and other care providers are stressed by low payment rates. The current state of affairs is increasingly untenable. It is getting worse every day!

People ARE noticing what is in the new law and they are liking what they see. The republicans have bull-shitted and bamboozled as much as they can but gradually the truth is getting out there. The public is noticing what the republicans in congress are up to and it may cost them dearly!

Edited January 21, 2011 by james&olya

[mawilson 2,133]

Maybe you aren't aware of the critical condition of american healthcare financing. Fewer and fewer jobs come with decent health insurance. Co-pays and deductibles are ballooning. Insurance companies are getting ever more brazen in cutting off insurance for people when they become ill, and then refusing coverage for any 'pre-existing' condition. Hospitals and other care providers are stressed by low payment rates. The current state of affairs is increasingly untenable. It is getting worse every day!

My health insurance premiums went up this year just like they did last year and the year before that.

The new law didn't do jack for my premiums, co-pays and deductibles.

[james&olya 1,121]

My health insurance premiums went up this year just like they did last year and the year before that.

The new law didn't do jack for my premiums, co-pays and deductibles.

I agree that this health reform is not likely to work well. It is a band-aid when what is needed is major surgery. Single payer 'Medicare for all' is what is needed!!

[mawilson 2,133]

I agree that this health reform is not likely to work well. It is a band-aid when what is needed is major surgery. Single payer 'Medicare for all' is what is needed!!

So you agree that we should repeal this piece of ####### and replace it with something better?

(Not that GOP would ever support a single-payer system - gotta keep those big insurance companies in business!)

[james&olya 1,121]

So you agree that we should repeal this piece of ####### and replace it with something better?

(Not that GOP would ever support a single-payer system - gotta keep those big insurance companies in business!)

Hell No! This is a very good step forward. I agree that single payer will not pass yet. Better to wait and pass a better program to REPLACE this one. If you repeal this one we will be stuck with what we had before and that is definitely worse!

It is like the saying, 'the perfect is the enemy of the good'.

[The_Dude 1,142]

I agree that this health reform is not likely to work well. It is a band-aid when what is needed is major surgery. Single payer 'Medicare for all' is what is needed!!

So you agree that we should repeal this piece of ####### and replace it with something better?

(Not that GOP would ever support a single-payer system - gotta keep those big insurance companies in business!)

It's not really a bandaid, it's more like using a staple gun in your garage to fix a broken arm. The bill is a piece of #######. It didn't start out that way, after all the negotiating, it ended up that way. It's a government mandated monopoly for the insurance companies. They ARE the problem with our health care system. I am in favor of a single payer system, much like what Canada or Switzerland uses, whereas not everything is paid by the state. Essential care is paid for, but not elective care.

[james&olya 1,121]

It's not really a bandaid, it's more like using a staple gun in your garage to fix a broken arm. The bill is a piece of #######. It didn't start out that way, after all the negotiating, it ended up that way. It's a government mandated monopoly for the insurance companies. They ARE the problem with our health care system. I am in favor of a single payer system, much like what Canada or Switzerland uses, whereas not everything is paid by the state. Essential care is paid for, but not elective care.

I don't have much more fondness for this bill than you do. At least they are using the stapler to try and fix the arm! I think that it does establish in the mind of the public that it is reasonable to expect that government can and should see to it that health care will be available to all. I hope we soon have single payer and can tell the insurance companies they are no longer needed. Maybe they can find jobs where they are actually doing something that benefits most people, rather than enriching a few by denying needed care to the many!

[Usui Takumi 1,562]

It's not really a bandaid, it's more like using a staple gun in your garage to fix a broken arm. The bill is a piece of #######. It didn't start out that way, after all the negotiating, it ended up that way. It's a government mandated monopoly for the insurance companies. They ARE the problem with our health care system. I am in favor of a single payer system, much like what Canada or Switzerland uses, whereas not everything is paid by the state. Essential care is paid for, but not elective care.

I am too, Federally supported but not Federally run. Keep the control at state or county levels. I wouldn't want my healthcare run like USCIS for instance.

[Pooky 3,787]

It's not really a bandaid, it's more like using a staple gun in your garage to fix a broken arm. The bill is a piece of #######. It didn't start out that way, after all the negotiating, it ended up that way. It's a government mandated monopoly for the insurance companies. They ARE the problem with our health care system. I am in favor of a single payer system, much like what Canada or Switzerland uses, whereas not everything is paid by the state. Essential care is paid for, but not elective care.

+1

Been saying this from the start. The insurance companies are a 15-20% inefficiency built into the system. They have to go from the basic form of healthcare before anything in the way of improvement will happen.

[james&olya 1,121]

Is there anyone reading this that likes the private insurance companies controlling health-care?

[mawilson 2,133]

Is there anyone reading this that likes the private insurance companies controlling health-care?

No, but I like the idea of a government-run health insurance company

even less.

That said, I think the insurance model only works well for catastrophic

coverage - cancer, heart attacks, car accidents, etc. It doesn't work

at all for routine care or when you want to cover every conceivable procedure.

I have no problem with private insurance companies selling catastrophic

health coverage - they already do that for other types of insurance (life,

homeowners, disability) and I haven't heard any complaints. I'm sure

they can calculate the actuarial risk of the enrollees of such plans

better than the government.

Catastrophic coverage aside, I think people should make their own choices

and pay their own way. The government can pick up the tab for the poor

and unemployed.

[Mr. Big Dog 10,747]

Catastrophic coverage aside, I think people should make their own choices and pay their own way.

Throw in one annual physical and you have a high deductible insurance plan. I just switched to one of these at work for the family and come out several hundred bucks ahead - and that is after paying premiums and putting the full annual deductible into an HSA. I looked at the math back and forth and found that enrolling into one of the regular plans would be pizzing money away in premiums. I rather have it accumulate in the HSA.