Tag: individual mandate

Federal Judge Denies Obama Administration’s Motion to Dismiss Virginia’s ObamaCare Lawsuit

From The Los Angeles Times:

RICHMOND, Va. (AP) — Virginia’s lawsuit challenging the Obama administration’s health care reform law has cleared its first legal hurdle.

U.S. District Judge Henry Hudson on Monday denied the Justice Department’s request to dismiss the lawsuit.

Virginia Attorney General Ken Cuccinelli claims that Congress does not have the authority under the Constitution’s Commerce Clause to require citizens to buy health insurance or pay a penalty.

The Virginia General Assembly passed legislation this year exempting state residents from the coverage mandate.

More than a dozen other state attorneys general have filed a separate lawsuit in Florida challenging the federal law, but Virginia’s lawsuit is the first to go before a judge.

Randy Barnett in the Wall Street Journal: “A Commandeering of the People”

Cato senior fellow Randy Barnett is the subject of the Wall Street Journal’s nearly-full-page Weekend Interview. Randy talks about interpreting the Constitution with “a presumption of liberty,” the subtitle of his book Restoring the Lost Constitution; about the Supreme Court’s expansion of government power from Wickard v. Filburn to Gonzales v. Raich; and especially about the constitutionality of the new health care bill and its individual mandate. Randy wrote an amicus brief with Cato in support of the Virginia attorney general’s challenge to the health care mandate.

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

For the full legal argument, read the brief.

RomneyCare Advocates: We Swear, This Time Centralized Planning Will Work

You know things aren’t going well in Massachusetts when supporters of RomneyCare write “there’s some evidence that the reforms signed into law by Mitt Romney in 2006 are struggling.”  That’s how The Washington Post’s Ezra Klein puts it in a post defending RomneyCare.  The New Republic’s Jonathan Cohn offers a similar defense.

Klein mentions only a few of the difficulties confronting Massachusetts.  Here are a few more:

  • The Commonwealth Fund reports that even though Massachusetts already had the highest health insurance premiums in the nation, premiums rose faster post-RomneyCare than anywhere else; 21-46 percent faster than the national average.
  • A recent study estimates that RomneyCare has so far increased employer-sponsored health-insurance premiums by an average of 6 percent.
  • The success that Klein sees in Massachusetts’ individual market – which accounts for just 4 percent of the private market – is merely the product of shifting costs to workers with job-based coverage.
  • Contrary to Klein’s post hoc spin that RomneyCare “was never an attempt to control costs,” Romney himself promised that “the costs of health care will be reduced.”
  • Aaron Yelowitz and I find evidence suggesting that uninsured Massachusetts residents are responding to the individual mandate not by obtaining coverage but by concealing their insurance status.  Coverage gains may therefore be less than official estimates suggest.
  • Evidence is mounting that, despite stiffer penalties than ObamaCare will impose, increasing numbers of people are gaming the individual mandate by only purchasing health insurance when they need medical care. Such behavior could ultimately cause the “private” insurance market to collapse.

Nevertheless, the Klein/Cohn thesis is basically that costs have been climbing and employers have been dropping/curtailing health benefits for decades.  So you can’t blame that stuff on RomneyCare.  We should instead be thankful that Massachusetts enacted a new raft of government price controls, mandates, and subsidies to protect residents from those features of “the American health-care system.”

The only problem is that “the American health-care system” is the product of the old raft of government price & exchange controls, mandates, and subsidies.  The largest purchaser of medical care in the country (and the world) is MedicareMedicaid is second.  The Left complains so much about fee-for-service medicine fueling rising health care costs and reducing quality, you’d never know that their beloved Medicare program is the primary reason for its dominance.  Likewise, the reason why employers are dropping and curtailing coverage is that the government turned the private health insurance market into an unsustainable employment-based system that is doomed to unravel.  Cohn’s book documents the inhumanity of that system so well, you’d think it would sour him on the sort of centralized planning that created it.  I could go on…

RomneyCare and its progeny ObamaCare are attempts by the Left’s central planners to clean up their own mess.  If Klein and Cohn want to defend those laws, pointing to the damage already caused by their economic policies won’t do the trick.  They need to explain why government price & exchange controls, mandates, and subsidies will produce something other than what they have always produced.

Government Essentially Concedes Commerce Clause Challenge to Obamacare, Calls Individual Mandate a Tax

This Sunday’s New York Times had a fascinating story about how the defense of the individual mandate has shifted from the Commerce Clause – even though the law itself is replete with boilerplate about “economic activity” – to Congress’s taxing power.  Here’s the first paragraph (h/t Jonathan Adler):

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

This is huge.  After months of arguing that cases like Wickard v. Filburn (Congress can regulate the wheat farmers grow for personal consumption) and Gonzales v. Raich (Congress can regulate personal growth of state-allowed medicinal marijuana) justify the requirement that every man, woman, and child buy a health insurance policy, government lawyers (and spokesmen) now say the mandate is just a regulation accompanying a lawful tax (the penalty you pay for not buying insurance).  After I spent most of April and May criss-crossing the country debating the constitutionality of Obamacare, it turns out that my opponents were barking up the wrong tree!

But don’t just take it from me.  Here’s Georgetown law professor and Cato senior fellow Randy Barnett’s dissection of the Times story and its significance.  An excerpt:

Now there are cases that say (1) when Congress does not invoke a specific power for a claim of power, the Supreme Court will look for a basis on which to sustain the measure; (2) when Congress does invoke its Tax power, such a claim is not defeated by showing the measure would be outside its commerce power if enacted as a regulation (though there are some older, never-reversed precedents pointing the other way), and (3) the Courts will not look behind a claim by Congress that a measure is a tax with a revenue raising purpose. 

But I have so far seen no case that says (4) when a measure is expressly justified in the statute itself as a regulation of commerce (as the NYT accurately reports), the courts will look look behind that characterization during litigation to ask if it could have been justified as a tax, or (5) when Congress fails to include a penalty among all the “revenue producing” measures in a bill, the Court will nevertheless impute a revenue purpose to the measure. 

Now, of course, the Supreme Court can always adopt these two additional doctrines. It could decide that any measure passed and justified expressly as a regulation of commerce is constitutional if it could have been enacted as a tax. But if it upholds this act, it would also have to say that Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS. Put another way since every “fine” collects money, the Tax Power gives Congress unlimited power to fine any activity or, as here, inactivity it wishes! (Do you doubt this will be a major line of questioning in oral argument?) 

Well, at least they’re not (yet) relying on Rep. John Conyers’s “Good and Welfare Clause.”  (Conyers, remember, is a lawyer and chairman of the House Judiciary Committee).

For a concise legal argument against the use of the taxing power to justify the individual mandate, see Cato’s amicus brief supporting Virginia’s challenge to the health care reform.  And for a great resource on all the state lawsuits against the new law, see this new blog/website run by Santa Clara law professor Brad Joondeph.

Under Romney/ObamaCare, Even the Scapegoats Scapegoat

In a recent post on how RomneyCare is increasing health insurance costs in Massachusetts (by encouraging healthy residents to purchase coverage only when they need medical care) and how ObamaCare will do the same, I linked to a Boston Globe article where an insurance-company spokeswoman made this odd claim:

We believe…the gaming in the system…is adding as much as $300 million dollars to the health care system in Massachusetts.

It’s hard to know what she meant. Taken literally, this claim is obviously untrue.  The gamers aren’t adding revenue to “the system” – they’re withholding revenue.  Nor are they adding costs, in the sense of additional medical spending.  If anything, overall spending falls because the gamers are less often insured, and therefore consume less medical care.

She might have meant that the premiums the gamers aren’t paying (or the difference between what they pay and the medical care they receive) amounts to $300 million, and that the gamers are imposing that cost on non-gamers in the form of higher premiums. But that doesn’t hold water, either.  The gamers have zero power to impose costs on non-gamers; only the government has that power. All the gamers are doing is responding rationally to the incentives RomneyCare creates and avoiding — lawfully, I might add — a $300 million tax.

So if that was her meaning, this spokeswoman should have said:

RomneyCare is imposing a $300 million tax on insured Massachusetts residents by encouraging other residents to game the system.

Instead, she blamed consumers and argued for laws that make it harder for consumers to avoid RomneyCare’s private-insurer bailout individual mandate.

So now we’ve got President Obama, who signed a law requiring health insurers to pay for more stuff, blaming insurers for rising premiums.  We’ve got pro-RomneyCare politicians doing the same in Massachusetts.  And we’ve got health insurers, who support laws forcing consumers to buy their products, blaming consumers for the cost of those laws.

Remember how RomneyCare and ObamaCare were supposed to promote responsibility?

RomneyCare Unleashed Adverse Selection, As Will ObamaCare

The Massachusetts health care law that Gov. Mitt Romney signed in 2006, and the nearly identical federal law that President Obama signed this year, create perverse incentives that are causing health insurance costs to rise and could eventually cause health insurance markets to collapse. A report released yesterday by the Massachusetts Division of Insurance shows that process is well underway.

Massachusetts requires health insurance companies to sell to all applicants, and imposes price controls that require insurers to charge all applicants the same premium, regardless of their health status.  ObamaCare would do the same.

Those price controls have two principal effects on healthy people.  First, they increase the premiums that insurers charge healthy people (the additional premium goes to reduce premiums for sick people).  Second, they enable healthy people to wait until they are sick to purchase coverage.  Since insurers must take all applicants, and charge them the same premium, there is little or no downside to waiting until one gets sick to purchase coverage.

Those price controls also guarantee that when healthy people drop out of insurance pools, premiums rise for everyone who remains, which causes more healthy people to drop out, and do on.  Economists and actuaries call this an “adverse selection death spiral.”

The Boston Globe reports that the Massachusetts Division of Insurance found that in the wake of RomneyCare, many more healthy residents are purchasing coverage only when they need it:

The number of people who appear to be gaming the state’s health insurance system by purchasing coverage only when they are sick quadrupled from 2006 to 2008, according to a long-awaited report released yesterday from the Massachusetts Division of Insurance.

The result is that insured residents of Massachusetts wind up paying more for health care…

The number of people engaging in this phenomenon — dumping their coverage within six months — jumped from 3,508 in 2006, when the law was passed, to 17,177 in 2008, the most recent year for which data are available.

In the hope of preventing this sort of gaming behavior, RomneyCare requires Massachusetts residents to purchase health insurance.  Yet that “individual mandate” appears not to be working, probably because the penalties for non-compliance are far less than the cost of the mandatory coverage.  Thus many residents decline to purchase health insurance, pay the penalty (or misrepresent their coverage status), and purchase health insurance only when they need medical care.

ObamaCare contains similar price controls and requires nearly all Americans to purchase health insurance by 2014.  Yet ObamaCare’s penalties for non-compliance are also far less than the cost of the required coverage for most people.

As goes Massachusetts, so goes the nation.

ObamaCare’s Unlimited-Coverage Mandates Will Increase Some Premiums by 7 Percent (or More)

Among the many ways ObamaCare will increase the cost of health insurance, it will require all Americans to purchase unlimited annual and lifetime coverage.  The latter requirement takes effect this September.  The former will require consumers with non-grandfathered health plans (i.e., about half of the market) to purchase coverage with an annual limit on claims of no less than $2 million by 2014, and unlimited annual coverage thereafter.

In interim final regulations and a “fact sheet” released this week, the Obama administration claims that the mandate to purchase unlimited annual coverage will increase the cost of employment-based and individually purchased coverage by an average of about 0.1 percent.  That average glosses over the fact that these mandates will have zero effect on consumers who already purchase the required coverage.  Consumers who are actually affected by the mandates will see larger premium increases.

For example, the regulations indicate that the phased-in mandate to purchase unlimited annual coverage will increase premiums for the 18 million Americans affected by a weighted average of 0.15-0.18 percent.  Even that weighted average hides the fact that this mandate will cause premiums to rise as much as 6.6 percent for 278,000 Americans.  This mandate will increase premiums by even more – and for more people – once it is fully implemented.  But the administration did not include an estimate of the premium impact beyond 2014.

The Obama administration also estimates that the mandate to purchase unlimited lifetime coverage, when spread across all insured workers, will increase premiums by about 0.5 percent.  Yet that requirement would not affect the 40 percent of insured workers who already purchase unlimited lifetime coverage.  When spread across the 93.6 million affected workers, the average premium increase rises to 0.8 percent.  The increase will be greater than that for the 26.5 million workers with lifetime coverage limits at or below $2 million, and greatest for the 1.5 million workers with limits at or below $1 million.  But the administration offers no estimates for these workers.

Spread across the entire individual market, the unlimited-lifetime-coverage mandate would increase premiums by an average of 0.75 percent, according to the administration.  But since the mandate won’t affect 11 percent of that market, the average impact on the 8.7 million people affected will also be 0.8 percent.  Again, the 300,000 consumers in that market with lifetime limits at or below $2 million will face larger premium increases.  And again, the administration provides no estimates specific to these consumers. Which is a shame, because – aside from the uninsured – it is these consumers on whom ObamaCare will place the greatest burdens.

All told, ObamaCare’s unlimited-coverage mandates will increase the premiums of affected consumers by an average of about 1 percent, and as much as 7 percent for some consumers.  Or maybe more: the administration acknowledges that a “paucity of data” about the impact of these mandates means that there is “tremendous,” “substantial,” and “considerable” uncertainty about the mandates’ costs.