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August 14, 2011

Another Victory For Universal Healthcare

By: John Caruso

Yet another judicial blow against President Obamney's corporate health insurance mandates:

[T]he individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.

I've talked to liberals who aren't thrilled with Obama's health care plan but nonetheless think it must still be worthwhile, because a) after all, Obama likes it, and b) it at least does something.  The fact that the something it does is to entrench corporate power over health care in the US to the point where it would take a nuclear bomb to dislodge it, not to mention to put a lengthy debate about universal healthcare off the national agenda for decades, either doesn't occur to them or is subsumed by their knee-jerk partisan instinct to at least politely nibble at whatever shit sandwich the Democrats happen to be feeding them at any given moment.  And the imperative of dining on that questionable meal also makes them willing to spin tortured rationalizations around the notion that it's ok for the government to compel us to buy a product from private for-profit corporations for our entire lives.

So it's left to conservatives and their knee-jerk partisan instincts to try to nullify this government gift to some of the most predatory and exploitative corporations in the US.  Thanks for doing what you can to save universal healthcare from the ongoing assault by Democrats and their misguided liberal supporters, 26 Republican attorneys general and governors!

(Yes, I'm plagiarizing myself.)

MOREOVER: The 11th Circuit also explicitly concluded that the expansion of Medicaid in the act is not unconstitutional—they struck down just the individual mandate and nothing else:

We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.

So if Congress wants to go back and handle health care the right way—by making Medicaid or some other form of federally-funded health care available to everyone in the nation—there's no reason they can't do it.  For people who'd actually like to see universal healthcare in this country within the next few decades, this decision couldn't possibly have been better.

— John Caruso

Posted at August 14, 2011 11:49 PM

How do you think this plays out?

Posted by: John Lewis at August 15, 2011 12:09 AM

No idea; I wouldn't even venture a guess about what the Supreme Court will do, much less what might happen beyond that.

Posted by: John Caruso at August 15, 2011 12:46 AM

Excellent article. It sez what I want to hear. As I've posted before(years now I guess counting Pelosi)---

MAKE MEDICARE/MEDICAID THE SINGLE PAYER, call Boehner @1-202-225-0600. Let's do what will work.

See, even the Teabaggers pay off on occasion. NOW all that's needed is to edumacate them willy baggers to the conclusion of single payer as the way to go.

Posted by: Mike Meyer at August 15, 2011 02:09 AM

"So if Congress wants to go back and handle health care the right way..."

Objection, the witness' statement assumes facts not in evidence.

Posted by: Davis X. Machina at August 15, 2011 03:24 AM

It now moves on to the Supreme Court, where its fate is not certain. The powers that be are not digging it, are not in sync with the direction the populace wants to set as our course.

Posted by: Dredd at August 15, 2011 09:58 AM

Shouldn't a Constitutional law professor be able to design a law that is...Constitutional?

Posted by: TK421 at August 15, 2011 12:02 PM

Wow, I thought it was Congress that wrote legislation and not the President. Silly me, TK421.

Posted by: DS at August 15, 2011 12:04 PM

Wow, I thought it was Congress that wrote legislation .

I don't believe that episode of Schoolhouse Rock showed those lobbyists lurking in the shadows.

Posted by: Happy Jack at August 15, 2011 12:18 PM

Forcing people to buy a private product seems a great idea. I'd even take it one step further and require everyone to buy not just health insurance, but also a pizza with toppings, a diet coke, and a new car -- every month. This would also fix the economy, and I am quite sure the commerce clause allows government to do that. (Although which toppings are allowed will be something for constitutional scholars to figure out.)

Posted by: bobs at August 15, 2011 12:31 PM

how about car insurance, yes you could damaged other peoples property, but isn't the same with the health insurance - one can go to an emergency room and somobody else will pay the bill. (as far as I know if one goes to the emergencu room they should not denny the help/services)
would be nice that somebody looks all aspects of the issue.

Posted by: n at August 15, 2011 01:50 PM

N, a person can elect not to own a car. A person can take public transport, or buy a bike, or walk, or mooch rides all the time. A person cannot choose not to have a body. (Well, they can, but that's a bit of an unreasonable choice to put upon citizens; 'Pay money to an industry that supplies no value and pays its CEOs lots of money, or commit suicide!! Or pay a fine, I guess.'

Posted by: duck-billed placelot at August 15, 2011 02:03 PM

first off, i agree with universal health care completely. single payer is the only solution.

but what about the arguments made that trying to cover everyone in this current shitty system is impossible (cost-wise) without the mandate? i have heard lots of well reasoned (not total spin) arguments like this. basically that healthy folks opt out, and make the whole system more costly for those without.

i guess my question is, if single payer is not a viable option politically, then what do we do to achieve something like it in the current confines?

my hopeful side would like to see a revolution by the people demanding medicare for all, but i my cynical side just doesnt see that happening.

Posted by: phemfrog at August 15, 2011 02:54 PM

It's quite remarkable how the Obomber managed to pick the worst possible option here. Either single payer or complete liberalization would have been preferable to this fuck up.
One would think he'd been paid to produce this result.

Posted by: bilejones at August 15, 2011 06:08 PM

It's called plutocracy-plus, or so I hereby christen it.

In a standard plutocracy, the government steals the money from the middle class and THEN gives it to the rich.

In plutocracy-plus, we cut the middle man. The government orders the middle class to give its money DIRECTLY to the rich.

Posted by: bob at August 15, 2011 06:49 PM

Let's face facts, single payer=death of the health insurance industry. Politically impossible for the two major parties, physically possible for ANYONE else. REMEMBER, the TAXPAYER owns AIG majority-o-stock. WE R ALREADY in the underwriting business.

Posted by: Mike Meyer at August 15, 2011 08:03 PM

I've been rooting for this outcome and am as pleased as you sound, John.

Been getting into arguments with my liberal father about it though.

Hopefully we can move on to putting a stake through the heart of the medical insurance industry. Not that I'm optimistic about it, given our current political culture/institutions.

Posted by: Rojo at August 15, 2011 09:29 PM

To understand what is going on with health care in this country, oddly enough I think the best book to read might be William Black's The Best Way to Rob a Bank is to Own One, which isn't about health care at all, but certainly is about how corporate fraud thrives in certain deregulated corporate environments. As someone now up to his eyeballs in dealing with this mess, I'm astonished at what they have been getting away with. (We'll fix that, but unfortunately the Himalayas will no longer be covered with ice by then.)

President Obamney, that's a good one. As to what the Supreme Court will do on the mandates question, a good start for anyone would actually be knowing something about law and the Supreme Court. Having opinions that aren't based on at least some knowledge has drawbacks for anyone who isn't exceptionally funny and clever. (Thank goodness everyone around here is.)

Single payer would be an infinitely better system than we have, as would many other systems, so pass out your pamphlets, because what nobody believes in isn't an option.

Posted by: N E at August 15, 2011 10:25 PM

The health insurance industry is only 50% of the problem, at best; the providers themselves are equally responsible. Many providers band together into networks in order to bargain more effectively with insurers (who, let's face it, don't want to pay out that much money). Providers are the only people here with no negative incentives - the more they charge, the better it is for them. Everything in the medical industry is subject to this bloat - from medical devices on down through procedures, tests, and doctors' salaries.

Health insurance is consolidated at the state level - many states are ruled by near-monopolies, against which the federal government has no power thanks to a handy anti-trust exemption for insurance, which effectively means that within a state there is a single entity bargaining with providers anyway. As much as we'd like to bargain with insurers, the fact is that they don't actually deserve the majority of the blame. Yes, they're less efficient than public-sector health coverage (I think the overhead is something like 30% vs. 3% for private vs. public, or in that ballpark). But health care costs in the US are about twice as high as anywhere else in the world, and for generally poor outcomes (we consistently rank among the worst of developed countries in health indicators). This is not entirely, or even mostly the fault of health insurers, except insofar as they're unable to do anything about it.

There's much more to the equation, here. Keeping health care costs down requires a lot of effort - it means managing the number of doctors in your country (again, paid twice as much in the US as anywhere else in the world). Professional organizations fight tooth and nail to restrict the supply of doctors for exactly this reason. It also means reforming the manner in which medicine is run; more prevention, less treatment, and a generally healthy population.

All of these are steps that are necessary to reducing the cost of health care, that go well beyond simply changing how we pay for it. None of these things are even in discussion; only rarely does anyone bother to vilify doctors and hospitals (and their attendant associations and lobbying groups) for their contribution to our health care mess.

Posted by: saurabh at August 16, 2011 12:57 AM

@NE: As to what the Supreme Court will do on the mandates question, a good start for anyone would actually be knowing something about law and the Supreme Court. Not exactly. When court decisions are typically 5-4, knowledge about the constitution and the law is unnecessary for prediction purposes.

@Saurabh: Good point. Insurers are targeted in this case because of the mandate. But I agree the other players in the health racket, er, free market are, if anything, worse culprits. I think the single highest source of cost is the multiplication of unnecessary procedures. But doctors are overpaid (because med schools are intentionally and unecesssarily overselective), Big Pharma sets prices, lawyers feed off malpractice, etc.

Posted by: bobs at August 16, 2011 12:50 PM

"This is not entirely, or even mostly the fault of health insurers, except insofar as they're unable to do anything about it."

Now that is complete bullshit, and suggesting that providers are half the problem is ridiculous. Sure there are greedy doctors, and there are certainly assholes who go to med school, as there are assholes in all walks of life, and sure there are unnecessary procedures performed by doctors, and sure there are inefficiencies and waste in hospitals and other facilities, but "villifying" hospitals is ridiculous, and that goes for the vast majority of doctors too.

I don't have time to go on a managed care rant right now, because I have to run, but the present health insurance system does not work, and frankly, I don't even think it is designed to work. The real goals of the system are more mercenary, which is why William Black's book is relevant.

Posted by: N E at August 16, 2011 02:43 PM

NE: I'm not suggesting that insurers aren't greedy, or that the way the system is run is not a problem, but the fact is that providers ARE a huge portion of the problem - a systemic piece that needs to be addressed. It is not coincidental that doctor's salaries in the US are twice that anywhere else, and that health care costs in the US are twice that anywhere else. My comment was intended to highlight this fact, not to exonerate health insurance companies (which probably need to be eliminated).

Also, I did not suggest that doctors are assholes. I suggested that they are overpaid, which is true compared to the rest of the world, and that they organize in order to maintain this situation. Many other professional organizations do the same.

My argument is mathematical. Health care costs in the US are twice as high as the OECD average. While higher administrative costs due to our mostly-private insurance system are partly to blame for this, that only accounts for a fraction - a minor fraction - of the increased cost. The remainder is due to the poor health of our population and the high-cost practices of providers.

Many countries with equivalent health outcomes manage to do so at a much lower cost. The US is a HUGE outlier on health spending. The fact is the way we practice medicine in this country is as much to blame as the way we pay for it; that needs to be changed, and that needs to be brought into the debate first.

So, if you'd like to clarify why you think my argument is bullshit, I'd appreciate it.

Here's some good reading that I think reinforces my point:
"Slowing the Growth of Health Care Costs - Lessons from Regional Variation"

"Slowing the Growth of Health Care Costs — Learning from International Experience"

"Public Attitudes Toward. Health Care Spending Aren't. The Problem; Prices Are."

See "Exhibit 3" here for a nice chart demonstrating how much of an outlier the US is:
"Health Spending In OECD Countries: Obtaining Value Per Dollar"

Posted by: saurabh at August 16, 2011 03:46 PM

@NE: By the same token, your average schmuck at Aetna is no more deserving of vilification than your average provider. But a quick look at the end of the food chain tells you health insurance is less than half the story. For example, the AMA has kept the number of doctors unchanged in the last quarter century (while the population grew by 40%); Big Pharma has successfully lobbied to prevent the government from negotiating prices; etc. Insurance profits are not the major cause of health cost inflation.

Posted by: bobs at August 16, 2011 04:27 PM

The possible debate between NE and others on the degree of responsibility of the insurance companies looks kind of interesting, if it goes further.

In the meantime, completely off-topic but for anyone interested, IOZ is back. I hadn't bothered to check in weeks and there he was, blogging again.

Posted by: Donald Johnson at August 16, 2011 04:38 PM

Ergh, my response to NE got swallowed by Akismet. Rest assured that it was really brilliant and answered all of your questions on the subject. I also included a short section presenting a quick sketch of my Unified Field Theory framework.

Posted by: saurabh at August 16, 2011 04:50 PM

many years ago now, back in the twentieth century, first lady hillary clinton had a task force of 500 or so to come up with an elaborate health care reform plan - after they wrote it up they handed it to congress - "pass this" - of course congress did nothing of the sort

at that time, my stepmother, in her innocence, then as now a republican, said - and this is an exact quote, to the best of my recollection - "why couldn't it be like medicare? that works pretty well"

and now here we are, a couple of decades later, and in dc they are discussing RAISING the age of eligibility for medicare as a cost-saving measure


may the creative forces of the universe have mercy on our souls, if any

Posted by: mistah 'MICFiC' charley, ph.d. at August 16, 2011 06:15 PM

Okay, I have to admit that the sins of health insurers are the part of the problem I get to see most, and as I am an advocate for providers, and sometimes patients (so I might be changing my moniker to 'angel of God'), it would be unnatural and perhaps even unprofessional for me to look at this without bias.

That being said, my perception of the providers I know anything about is that they are at least trying, whereas the payers are controlled by MBAs who have their eye very much on their own profits and nothing else. The hubris among them astonishes me, and I am embarking on doing my damndest to smash it into a million pieces. Since United Healthcare has about a trillion dollars, however, the Himalayas really are in more immediate danger.

But it's the patients who are in the most immediate danger, with the large providers (not the doctors)gaining on them fast.

Still, as I recall that New Yorker article last year that was quite good, the more the profit maximization model is introduced into the provider model, as it was in the south Texas city I have forgotten that was featured, the greater the problem becomes.

Even apart from all its other sins and problems, capitalism does not work well for public goods, and health care has too many of those aspects and other characteristics that make turning capitalists loose on it something like putting a wolf in the flock.

Posted by: N E at August 16, 2011 06:43 PM

@saurabh - You left out the part you promised about the Grand Unified Theory. Shame on you for manipulating me!

Posted by: Aaron Datesman at August 16, 2011 09:53 PM

Aaron - I blame the spam filter. Any spam filter worth its salt ought to weed out stuff like that.

Posted by: saurabh at August 16, 2011 10:38 PM


It was the statement that providers are as responsible as health insurers that I think to be la mierda de una vaca. Right now I think the health care system is being predominantly destroyed by the insurance component. The advent of Gingrichian managed care after the first failed health care reform effort by the Clintons introduced some terrible hidden financial dynamics, and that situation has deteriorated. The MCOs view themselves as having a mandate to not pay for anything, and they are increasingly aggressive about it. This was basically a Trojan Horse intended to destroy Medicaid and Medicare by replacing them with privatized contractors under the guise of more choice, and it is working. Of course, the MCOs aren't the whole problem, and commercial forces are wreaking havoc elsewhere among the insurers and hmos too.

Just so you know, their justification for wreaking havoc is that our health care costs are out of control--your argument is predominantly used by unprincipled commercial forces to justify doing harm, not good, in the health care world. After all, if our costs are spiraling out of control, we have to exercise some painful discipline. The argument is that putting our foot down and not paying for things is necessary, and not paying hospitals and other providers is a big start. This effectively requires them to then drastically cut back services and ultimately bankrupts them or forces them to turn to state government, which has no funds. I'm not Aaron, so I don't have a study, but I would expect the ultimate result of the policy to be an increase in the fatality and mortality rates among the vulnerable poor, especially children.

As for doctors making too much money, i'm certainly not prepared and won't have time in this lifetime to figure out how the salary of doctors compares in some meaningful way(akin to "purchasing power parity") to the salary of doctors in other countries. My sense is that isn't even close to the biggest part of the problem, but I could be educated on that--I have no strong feeling one way or the other. Some doctors make lots of money, but that isn't why our health care system is imploding. If that were the problem, it would be more easily fixed--we should of course use more nurses and medical assistants and lots of others to improve health, and could do it vastly better than we now do too. But there are more fundamental problems stemming from commercial forces that will tear the whole system apart if not checked.

Reinstating some confidence that government can solve problems is going to be very hard, but without it the problems that can only be solved by government--and that includes pretty much everything touching upon social justice--will be intractable. Health care cannot help but implode in its present form, just as banking did and will again. Until the market forces destroying health care are removed from the equation, rationalizing the practice of health care in the US strikes me as unlikely to work, and you won't be able to address all those peripheral and subordinate issues.

Posted by: N E at August 17, 2011 07:48 AM

The AMA is this country's largest, most powerful association of doctors. It ferociously opposes single payer. It fought tooth and nail against medicare and it killed HillaryCare.

So let's hear it for doctors as "angels of God" !

Posted by: bobs at August 17, 2011 12:17 PM

Poor healthcare and greedy doctors SHOULD be addressed by competent medical boards, IMHO. Insurance and standardized costs control ARE two problems WE can address with Medicare/Medicaid.

Posted by: Mike Meyer at August 17, 2011 12:55 PM


First of all, I'm the 'angel of God', supposedly per one unreliable and highly biased source you don't even know, not some doctor. I don't get that sort of praise much, so please don't screw that up.

Sure the AMA is mostly conservative and very establishment and has plenty of rich, conservative members, and sure it is naturally therefore opposed to single payer, and it always has been opposed anything too "radical", but I didn't say anything about the AMA. It's about what the ABA is, so of course it's not full of Kucinich fans.

I didn't even say anything about doctors being anything superspecial. But as much as is wrong with the AMA and those doctors who have subordinated the Hippocratic oath to something they read in Atlas Shrugged, the system is being destroyed by the business people who now give marching orders to everyone in the system from the top down. The hospitals and clinics and doctors aren't the real problem.

Posted by: N E at August 17, 2011 03:22 PM

I was looking thorough some old magazines, and one from back in 1992 caught my eye.
It was a glossy, professional looking zine that focused on the health care system. The backers of the magazine were doctors, nurses and others who were fed up with our pathetic health care system.

One article had a detailed account of one drug, an item that sheep farmers put in their animals' food to prevent disease.

However, people doctors use the same medicine to treat a different problem that surfaces in human beings.

What was so scary was the price difference. As an item to be placed in animal food, a farmer could buy it by the bucket for less than $ 15 for a two week supply.

The same item used and put inside capsules for human beings cost over $ 200 for a month (150 capsules.)

And don't even suggest that the quality has to be better, (Blah Blah Blah) for humans. "Sixty minutes" quashed that amusing thought when it interviewed a lady whistle blower about her experiences in a Mexican pharmaceutical manufacturing plant.

The whistle blower had documented where a powder-ized drug of one type
contaminated some of the powder-ized material for different drugs. The parent company, a well known American company, distributes this crap.

So you think you are getting a pain killer, but you may be getting female hormones or antidepressants in the mix. Why would that Big Pharmaceutical company care? They care about their profits, not about the purity of the crap they are selling us.

Posted by: elise mattu at August 17, 2011 05:02 PM

Health care is in trouble in significant degree because of the microbial effect on cognition which the health world knows nothing much about.

Posted by: Dredd at August 17, 2011 07:27 PM


Pretty interesting and mind-bending stuff. I can't tell how much there is to it, but I think there are still a lot more mysteries in the human body, especially the neurological system, than we can even imagine.

Posted by: N E at August 17, 2011 10:49 PM

all these human-symbiozing microbes - how different are they from the microbes living in/with chimps, dogs, cats, rats, crabgrass? in other words, might the difference between me and my cat be mostly due to the human vs cat genes, and not so much to the microbes-in-me vs the microbes-in-my-cat?

Posted by: mistah charley, ph.d. at August 18, 2011 09:06 AM

I am sure you mean universal in its most limited sense.

Posted by: Dredd at August 18, 2011 03:50 PM

@NE: Ah, so you admit that doctors are led by scumbags. Well, that's a start. Your argument (such as it is) sounds a lot like, "My brother-in-law works for Goldman Sachs and he's a good guy, so to vilify Goldman Sachs is bullshit."

@elise: Remember, The first thing we do, let's kill all the lawyers, doctors, pharmacists, and insurers.

Posted by: bobs at August 18, 2011 06:36 PM


That "argument," such as it sounded, wasn't anything I said, but I do get a kick out of your comment to Elise, which reminds me how important it is not to care too much what people think, since often they don't.

Posted by: N E at August 18, 2011 07:16 PM

It's a stretch but maybe he's "playing chess" and he really wants to see a "too big to fail" level of corruption, whereupon he would nationalize one or two of the failing insurance companies, thus providing universal healthcare.

Posted by: Lewis at August 18, 2011 09:23 PM

Yeah, and maybe he's bombing so many countries to make Americans see the ultimate futility of the use of force, so he can dissolve the military and bring us world peace. But will the people who joked about his Nobel have the honesty to admit they were wrong once that happens?

Posted by: John Caruso at August 18, 2011 11:40 PM

@bobs Nothing in my post hints at any dislike for doctors or lawyers, or pharmacists. I rely on my doctor, my lawyer and my pharmacist very much.

However the top 1% of executives at the Big Insurers and the top 1% of executives at Big Pharma do not seem to have my interests at heart. Or yours, for that matter. And I would include the executives at Big Banking and Big Finance in the same category. Most people that I know agree.

Posted by: elisemattu at August 20, 2011 02:47 PM