By Fr. George Welzbacher
July 15, 2012
In its recent ruling (5-4) on ObamaCare, the U.S. Supreme Court would seem to be claiming for itself a new constitutional mission: no longer simply to judge through appeal to the Constitution the legality of the laws that have been passed by Congress and have been signed by the President but rather, in the interests of securing a desired outcome, to REWRITE those laws. Congress presented as NOT a TAX BUT AS A PUNITIVE MEASURE the mandate requiring adult citizens either to purchase health insurance or to pay the federal government specified sums of money. In the long debate before the bill finally passed the House and Senate (with a minimal majority, without a single Republican vote) language classifying the mandate as a TAX was resoundingly REJECTED, replaced by language insisting that the mandate was indeed a punitive measure, under the Constitution's Commerce Clause imposing a PENALTY for non-compliance. A majority of 7 to 2 on the High Court ruled (quite plausibly) that the Commerce Clause doe NOT permit imposing a penalty for NON-activity, e.g., for NOT buying health insurance. As presented by Congress the mandate was therefore rejected. But then Chief Justice John Roberts and the four "liberal" Justices saved the mandate (and therewith the whole Affordable Care Act, a.k.a. "ObamaCare") by defining the mandate as what Congress held that it was NOT: namely a TAX. Thus five Supreme Court Justices REWROTE the law and then declared it, thus REWRITTEN, as constitutional, since Congress has the power to tax.
In this ruling the Supreme Court seems arguably to have acted as a kind of Super-Legislature, not simply reviewing but REVISING legislation passed by Congress. In the view of many eminent jurists revision of congressional legislation would seem NOT to fall within the portfolio of the Court's constitutional authority. And one might ask further: if INACTIVITY can be TAXED, JUST WHAT, PRAY GOD, CANNOT BE TAXED? Are we now perhaps heading back to Elizabethan times when Recusant English Catholics were fined - or should we make that taxed? - FOR FAILURE TO ATTEND Church of England services?
On the cartoon cover of the current New Yorker Magazine President Obama is fitted out with a physician's white jacket and a stethoscope-and a smile as broad as a mile. No wonder. But it's interesting to note that while the President applauds Chief Justice Roberts' DECISION he insistently REJECTS THE REASONING THAT UNDERLIES IT. Mr. Obama defiantly maintains, now as before, that the mandate is authentically a penalty and is absolutely NOT a tax. Questions, anyone?
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* * * * *And may I share with you here two thoughtful interpretations of the significance and probable impact of the Supreme Court's ruling on the constitutionality of what is laughingly called the "Affordable Care Act."
* * * * *A Triumph and Tragedy For The Law
The Wall Street Journal, June 29, 2012
David B. Rivkin, Jr. and Lee A. Casey
The Supreme Court's ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress's power to regulate interstate commerce CANNOT support federal requirements imposed on Americans simply because they [Americans] exist. The court also ruled that there are limits to Congress's ability to use federal spending to force the states to adopt its preferred policies.
However, in upholding ObamaCare's mandate that all Americans buy health insurance as a kind of "tax," the court itself engaged in a quintessentially LEGISLATIVE activity - REDRAFTING the law's unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a NEW ObamaCare OF ITS OWN MAKING judged constitutional by this Supreme Court. CONGRESS grounded ObamaCare's individual insurance coverage mandate in its power to regulate interstate COMMERCE, supported by the Constitution's Necessary and Proper Clause, which permits Congress to make all laws "necessary and proper" for carrying into effect its various enumerated powers. It relied on these constitutional provisions so as to avoid the clear POLITICAL costs involved in simply raising TAXES to create the universal healthcare system ObamaCare's backers really desired.
ObamaCare defenders, in the courts of law and public opinion, have been pressing these points for the last two years, and they lost. A majority of justices ruled that the Commerce Clause, even in conjunction with the Necessary and Proper Clause, CANNOT support federal regulation of "individuals as such, as opposed to their activities."
This is a profound and highly significant reaffirmation of the Constitution's FEDERALIST structure, which assigns only limited and enumerated powers to the federal government and RESERVES the power to enact broad HEALTH AND WELFARE regulations to the STATES. Here, the court clearly rebuked Congress, sending a very clear message: There are judicially enforceable LIMITS to your power.
Equally important, the court also ruled that the federal government cannot use its spending power to COERCE the states into adopting federal programs and requirements. As originally enacted, ObamaCare REQUIRED the states to EXPAND their Medicaid programs so that they would cover those with incomes far ABOVE the federal poverty line. This would have shifted UNTOLD COSTS to the states, with the federal government paying these costs only for a limited time. The alternative that states faced was the LOSS OF ALL FEDERAL Medicaid funding. Seven justices ruled that, applied in this manner, the law was unconstitutional and REWROTE it to avoid this outcome. As a result, this federal hammer can no longer be used to force the states to support ObamaCare's Medicaid EXPANSION.
This is significant. Since deciding Steward Machine Co. v. Davis in 1937, the Supreme Court has maintained that the Constitution limits Congress's power to coerce the States through federal grants, but it has never identified the boundaries between the permissible use of federal funding as a carrot and unconstitutional federal COERCION. The ObamaCare decision began to draw those lines, putting real limits on Congress's ability to use the States as simple administrative units to carry out its will.
On the DEBIT side, the court UPHELD ObamaCare's individual mandate as an exercise of the federal TAXING power. THE LAW WAS NOT PASSED AS A TAX, and both the president and ObamaCare's congressional supporters persistently proclaimed that they were NOT raising taxes. The court itself was forced to concede that "the statute READS MORE NATURALLY as a command to buy insurance than as a tax."
In order to reach its conclusion that the mandate was a tax, and avoid the POLITICAL fallout of striking down President Obama's signature achievement in an election year, the court did more than overlook the statutory text's NATURAL meaning..... As Justices Scalia, Kennedy, Thomas and Alito wrote in dissent, "to say that the Individual Mandate merely imposes a tax is not to INTERPRET the statute but to REWRITE it." The perhaps unintended irony of this judicial edit is that politicians who wish to impose this type of mandate in the future will no longer be able to claim that they are not imposing a new tax.
The court's ObamaCare opinion presents an uncertain legacy. The court reaffirmed and clarified the constitutional limits on Congress's power to regulate commerce and to spend money. Yet the individual mandate and the law's Medicaid expansion were upheld through judicial copyediting that the court has ALWAYS found to be BEYOND ITS OWN constitutional power. The fact that this happened in the context of a hotly contested statute raises questions about the court's ability to remain immune to political pressures. [Emphasis added].
Messrs. Rivkin and Casey are lawyers in the Washington, D. C, office of Baker and Hostetler LLP. They pioneered the constitutional arguments against the individual mandate and represented 26 states in challenging ObamaCare before the trial and appellate courts.
* * * * *ObamaCare's Lost Tribe: Doctors
The Wall Street Journal, July 5, 2012
Back at the at the dawn of ObamaCare in June 2009, speaking to the American Medical Association's annual meeting, President Obama said: "No matter how we reform health care, WE WILL KEEP THIS PROMISE: If you LIKE your doctor, you will be able to KEEP your doctor. Period."
But will your doctor be able to keep YOU? Or will your doctor even WANT to keep you, rather than QUIT medicine?
For the longest time now, since day one of the Affordable Care Act, we have been having arguments over the mandate to purchase health-care insurance, requirements that insurance companies accept policyholders regardless of health, and price discrimination in insurance policies.
And of course this past week, the Supreme Court--or something resembling the Supreme Court--outputted a decision on the tax status of the insurance-purchase mandate, the states' obligation to pay for Medicaid and as a bonus, the Commerce Clause.
Have you noticed what got lost in this historic rumble? Doctors. Remember them?
ObamaCare has been a war over the processing of insurance claims. It has been fought by institutional interests representing insurance, hospital and pharmaceutical firms. The DOCTOR-PATIENT relationship, or what used to be called "the practice of medicine," HAS SUNK beneath these waves.
Barack Obama, a savvy pol, understood from the start that rationalizing payments claims through the maw of these private and public bureaucracies was not what the average person thinks of as "health care." To any normal person, health care means that when you or yours get really sick, the doctors and nurses who attend to you will push all else aside to give you medical help.
Thus, the constant Obama chorus that you can "keep your own doctor." No one knows better than Barack Obama that his law sends the nation's doctors on a voyage into an uncharted health-care world in which they are just along for the ride with their patients.
A Wall Street Journal story the day after the Supreme Court ruling examined in detail its impact across the "health sector." The words "doctor," "physician" and "nurse" appeared nowhere in this report. The piece, however, did cite the view of one CEO who runs a chain of hospitals, explaining how they'd deal with the law's expected $155 billion in COMPENSATION CUTS. "We will make it up in volume," he said.
Volume? Would that be another word for human beings? It is now. At Obama Memorial, docs won't be treating patients. They'll be processing "volume." And then, with what time and energy remains in the day, they'll be inputting medical data to comply with the law's new Physician Quality REPORTING System (PQRS), lodged in the Centers for Medicare and Medicaid.
Here's the Centers' own description of what PQRS does: "The program provides an incentive payment to practices with eligible professionals (identified on claims by their individual National Provider Identifier [NPI] and Tax Identification Number [TIN]) who SATISFACTORILY REPORT DATA on quality measures for covered Physician Fee Schedule (PFS) services furnished to Medicare Part B Fee-for-Service (FFS)."
We're all pressed for thinking time these days, but the one group we should make sure has TIME TO FOCUS on what's in front of them is DOCTORS TREATING PATIENTS. Instead, they'll also be doing mandated data dumps for far-off panels of experts.
Doubts, even among believers, have begun to emerge about what ObamaCare could do to the practice of medicine. A remarkable and important piece by Drs. Christine K. Cassel and Sachin H. Jain in the June 17 Journal of the American Medical Association directly asks: "Does Measurement Suppress Motivation?"
The question raised by the article is whether imposing pay-for-performance measurements on individual physicians does more harm than good: "[Close attention must be given to whether and how these initiatives motivate physicians and not turn physicians into pawns working only toward specific measurable outcomes, LOSING the complex problem-solving and diagnostic capabilities essential to their role IN QUALITY OF PATIENT CARE, and DIMINISH their sense of professional responsibility by making it a MARKET COMMODITY."
This is an important piece, because Dr. Cassel is part of the intellectual foundation for the measured-directives movement. The saying that comes to mind reading these misgivings is that it's better late than never to notice that the CORE relationship between doctor and patient is being ERODED. Except that in the wake of Chief Justice Roberts' upholding of the Affordable Care Act, IT'S TOO LATE and we're BEYOND never ....
This isn't just a fight over insurance companies. It's about the people at the CENTER of health care - DOCTORS. The Affordable Care Act will damage that most crucial of all life relationships, that between an ill person and his physician. Barack Obama's assertion that WE ALL CAN KEEP our doctors is FALSE. You could line up PRACTICING physicians from here to Boston to explain .... why that is so.
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