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A Victory For Health Reform And Good Law



October 8th, 2010
by Timothy Jost

Editor’s Note: Yesterday, a federal District Court judge in Michigan rejected a constitutional challenge to the Affordable Care Act. Below, Timothy Jost of the Washington and Lee University School of Law discusses the court’s decision.

In the June issue of Health Affairs, Jost and Ilya Shapiro of the Cato Institute offered “pro and con” perspectives on the constitutionality of the Affordable Care Act. Shapiro’s reaction to yesterday’s decision by Judge George Steeh can be found on the Cato Institute’s blog.

Opponents of health care reform lost another battle on October 7.  Having failed in their efforts to defeat the legislation last spring, anti-reform advocates have turned to unelected judges to overturn the will of Congress.  Reportedly, more than a dozen cases have been filed across the country by reform opponents. 

On October 7, Judge George Steeh of the United States District Court for the Eastern District of Michigan rendered the first final judgment on the primary argument urged by reform opponents—that the minimum coverage requirement of the legislation is unconstitutional.  Reasoning from clear, long-standing precedents recognizing the power of Congress under Article I of the Constitution to regulate commerce, and sweeping away the nonsense that opponents of the legislation have been arguing for months, Judge Steeh upheld the minimum coverage requirement.

To understand this controversy, it is necessary to understand what the minimum coverage requirement actually says and why Congress adopted it.  The law provides that, beginning in 2014, if you are not covered by health insurance from your job and are not eligible for Medicare or Medicaid; if you do not have a religious objection to having health insurance or belong to a health care sharing ministry; if you have been uninsured for 3 months or more; if you are not a Native American; if you earn more than the tax filing limit (currently $18,700 for a couple); if you can find a health insurance policy for less than 8 percent of your income; and if it does not otherwise cause you a hardship, you must purchase a basic, high cost-sharing health insurance policy or pay a tax penalty.  If you don’t pay the penalty, you cannot be criminally prosecuted and the IRS cannot place a lien or levy on your property.  Tax credits will also be available to help many of  those subject to the mandate (a small minority of Americans) to purchase the required insurance.

The Purposes Of The Minimum Coverage Requirements

Congress adopted this provision for two reasons.  First, the requirement was the only way to get to universal coverage using private insurance.  If you require private insurers to insure people with pre-existing conditions, the health insurance market will collapse if you do not also require healthy people to participate in the market.  Only sick people will purchase insurance, while healthy people will wait until they get sick or have an accident and then purchase insurance.  Insurance will soon be unaffordable to all.  Congress did not consider an alternative which would clearly have been constitutional—a tax-financed public insurance system like Medicare for all—because it wanted to make our private insurance system work.

Second, the use of health care is in the end unavoidable.  We will all need health care sooner or later, and when we do, someone will have to pay for it.  If an individual is insured, the insurer will pay for it.  Each year, however, $43 billion worth of care is received by people who do not have health insurance and who do not pay for it.  This cost is passed on to the rest of us—to our employers, insurers, health care providers, and the government.  This level of cost-shifting may be understandable today, when many cannot afford health insurance, but once tax credits are available so that no one needs to be uninsured, it is no longer tolerable,   The purpose of the law, that is, is to discourage this freeloading and to encourage individual responsibility (something conservatives used to be in favor of).

Opponents of the law, however, claim that Congress does not have the power under the Commerce Clause to stop this freeloading.  They claim that Congress can only regulate “activity,” and that refusing to purchase insurance is “inactivity.”  They claim that if Congress can require the purchase of health insurance, it will soon be passing laws requiring people to buy cars or eat spinach.

Health care, however, is different.  Insurance exists not only to provide financial security to the insured but also to prevent the insured from shifting costs to others.  You cannot drive a car in most states without liability insurance, or get a loan to purchase a home without homeowner’s insurance that covers the lender.  But if you don’t own a home or drive a car, there is no reason to require the purchase of auto liability or homeowner’s insurance.  Everyone can get sick or injured, however, and thus everyone must have health insurance to avoid cost-shifting.

The Legal Background

To date, three federal judges have entered rulings in cases challenging the Affordable Care Act.  In July, a federal judge in Maryland refused a preliminary injunction in a case challenging the reform law and dismissed the case as to President Obama.  That judgment was upheld by the Fourth Circuit Federal Court of Appeals.  In August, a federal court case was dismissed in California, with the judge finding that the plaintiffs lacked standing to raise a whole host of challenges to the law, including a challenge to the minimum coverage requirement and also a claim that the law violated the Equal Protection Clause by creating Offices of Women’s Health but not an Office for Men’s Health.  

In August a federal judge in Virginia denied the federal government’s motion to dismiss a case challenging the minimum coverage requirements brought by the Commonwealth of Virginia, holding that plaintiff Commonwealth had standing to challenge the law and that the Commonwealth presented “a plausible claim with an arguable legal basis.”  The court repeatedly emphasized that the decision did not resolve the merits of the claim and that “it will certainly not be the final word.”  That case is now being briefed on a motion for summary judgment, which will likely resolve the case at the trial court level.  A Florida court is also considering the federal government’s motion to dismiss a case brought by twenty state attorneys general challenging the minimum coverage requirement, and has signaled that it might not dismiss all of the claims brought by the states.

Judge Steeh’s Decision

The Michigan case, however, was the first case to reach the merits of the claim.  The court squarely upheld the minimum coverage requirements. Judge Steeh ruled first on the jurisdictional claims raised by the federal government.  Surprisingly, he held that the plaintiffs did have standing to challenge the law and that it was “ripe” for adjudication, even though it will not go into effect until 2014.  He accepted the plaintiffs’ argument that they must already “reorganize their affairs” so that they will be able to afford health insurance in 2014.  Although this argument seems spurious (who knows whether the individuals will or will not be insured or required to purchase insurance three years from now), and a claim that the plaintiffs were already suffering an injury was rejected by the judge in the California case, Judge Steeh refused to dismiss the case on this basis, obviously eager to get to the merits.

Once he got to the merits, the judge made short work of the nonsense argued by the opponents to the law.  First, he recognized that for nearly six decades the Supreme Court has interpreted the Commerce clause broadly to permit Congress to regulate the use of the channels of interstate commerce; the instrumentalities of interstate commerce and persons and things in interstate commerce; and activities that substantially affect interstate commerce. The court cited Supreme Court cases recognizing that Congress could regulate purely local, non-commercial activity as an integral part of a statutory scheme that permissibly regulated interstate commerce.  The court distinguished two cases from a decade ago that had struck down legislation regulating non-economic activity.  And the court recognized, quoting earlier Supreme Court cases,

In assessing the scope of Congress’ authority under the Commerce Clause’ the court’s task ‘is a modest one.  ‘The court need not itself determine whether the regulated activities ‘taken in aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

Judge Steeh then turned to the “rational bases” of the minimum coverage requirement.  First, he observed that Congress rationally concluded that the decisions of individuals to forego purchasing insurance coverage drives up the cost of insurance for everyone else:  “The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers.” The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic. 

No one can choose not to get sick or injured, the court recognized.  In that respect the market for health care is very different from the market for spinach or cars, which are in fact avoidable. (I avoided spinach for years). At some point we all need health care.  This is what makes the market for health care unique.  At the point we need care, we will either be insured or not.  If people are not insured, in all likelihood some of the cost of their care will be shifted to others.  The plaintiffs have in fact made a choice—a choice regarding how they will pay for their health care.  The court analogized this choice to the choice to pay by credit card rather than by a check, and in this case the problem is that the credit card debt often ends up in default.

The court further rebutted the “inactivity” canard by noting that the Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce can put themselves beyond the reach of the Commerce Clause.  The court invoked Supreme Court cases rejecting claims that individuals who grew marijuana or wheat for personal use only were not engaged in commerce or that individuals could refuse to do business with people of another race.  The court noted that it was more accurate to say that the Commerce Clause allows Congress to regulate economic decisions rather than economic activity.  Deciding not to purchase health insurance is certainly an economic decision.

The court next concluded that regulating the decision whether or not to buy insurance was essential to the broader regulatory scheme that Congress was attempting to carry out—insuring all Americans through private insurance. Judge Steeh noted that without the minimum coverage requirement, healthy people would remain outside of the market until they became ill or injured, and that the resulting insurance market, populated largely by unhealthy people, would not be viable.  The mandate is necessary to prevent adverse selection.

Finally, Judge Steeh disposed of the argument that the legislation was not justified by Congress’ taxing and spending power, essentially holding that because the provision was justified under the Commerce Clause, it was not necessary to deal with the taxing and spending power.  Interestingly, Judge Hobson in the Virginia case had observed that the power-to-tax claim was an “even closer … issue” than the Commerce Clause argument.

Looking Into The Future

Judge Steeh’s decision is solidly based on the existing law and in the factual predicate established by Congress in adopting the legislation.  The states’ cases in Florida and Virginia are presided over by judges who may not shrink from making new law to restrict the power of Congress.  Limiting the power of Congress has been a long-term right-wing agenda in the United States and has some sympathizers on the Supreme Court and many in the lower courts.  But a number of the justices who decided the medical marijuana case case in 2005 that broadly construed the Commerce Clause are still on the Court, and  some of the judges who have left the Court in the past decade were the strongest advocates of states’ rights.  Anti-reform advocates have struck a responsive chord with some segments of the public, and have clearly picked their judges well for the initial stages of litigation, but I still believe in the end the courts will defer to the reasonable judgment of Congress, as they must under current law, and not try to impose their own will on the American people.  This is as it should be.

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2 Responses to “A Victory For Health Reform And Good Law”

  1. John R. Graham Says:

    Having lost the battle of public opinion, advocates of the federal government take-over of Americans’ access to medical services have little to cheer about except for this idiosyncratic judicial decision.

    Professor Jost (who has elsewhere styled himself the National Association of Insurance Commissioners’ “consumer advocate”, although I’ve never met any consumer who voted for him), asserts a “free-rider” argument which is unsubstantiated. I wrote about this in 2007 (http://tinyurl.com/27erpka) but the myth lives on.

    The “free-rider” argument is emotionally satisfying, but economically unsound. As a class, the uninsured more than pay the costs of uncompensated care. If the federal government amended the tax code to give a deduction or credit for health insurance, instead of excluding it from compensation, this would immediately become transparent. The federal government could then make a block transfer of unclimed deductions or credits to states to fund the safety net. There is no need for even more taxation.

  2. Mike77 Says:

    Since this article is about the right wing objection and not the progressive objection to the health care plan, it states the case accurately and completely. But just for the record, many of us on the left are also outraged by the mandatory purchase requirement, for a very different set of reasons. We do not accept the idea of compulsory contributions to private corporations. Money that is extracted from citizen’s pockets must go to democratic institutions (the US Congress for example.) The idea that a citizen may have no choice but to contribute to the bottom line of a for-profit health insurer (or even a private nonprofit insurer) is simply outrageous.

    We do not accept Congress’ decision to have a private insurance system. Timothy states: “Congress did not consider an alternative which would clearly have been constitutional—a tax-financed public insurance system like Medicare for all—because it wanted to make our private insurance system work.”

    Even that framing of the issue is really not right. We do not have a private insurance “system.” We have private insurers and we have a government mandate to support them. To me that’s a kleptocracy in which private corporations have commandeered the instruments of government coercion and are using them to mandate consumer expenditures. To call it a “system” is to do it more credit than it deserves. Such use of the government to serve private ends, even if justified by a public health argument, is philosophically and politically outrageous. The fact that the political establishment is just fine with it only demonstrates the extent to which the corporate kleptocracy owns that political establishment, through its lobbying dollars and its promises of future employment for the Congressional functionaries and congresspeople themselves, after they put in their time doing its bidding in Washington.

    So there are many good reasons to be outraged at what Congress and Obama have wrought. The right has it half right – coercion is outrageous, but only when we are coerced to pay for private goods. However, coercion is more than legitimate when it is the democratic decision of a government acting in the public good and a requirement that people remit taxes to that government, and that is what we still need – a tax financed health system in which revenues flow to and through the government, counterbalancing the massive and growing power of undemocratic institutions such as health insurers in our economy and our lives.

    By cutting the government out of the loop, except as an enforcer of penalties for nonpurchase, and as an organizer of the rules of the market, what Obama and Congress have done is to participate in the ongoing process of delegitimizing government taxation and democratic control over the economic activities (like the health care industry) that should be subject to democratic decision making by representatives. They should be democratically controlled precisely because they are not, as Timothy points out, avoidable.

    The government is defunding itself, and funding health care corporations. It is attacking government itself, because it is infected with corporate parasites. Each representative and congressional aide participating in that process is just feathering his or own future bed in the health care industry after the Washington gig gets old.

    We’ve lost all sense that “we the people” should control our economic destinies. The fact that government salaries lag far behind the private sector is just one symptom of this. Massive ideological machines like Fox news (but to a lesser degree most major media) run by for profit corporations churn out antigovernment propaganda all year long. The Obama health care plan demonstrated just how far gone our political culture really is. Have no doubt that corporate America and the beholden political classes will figure out how to make the purchase mandate work. But consider where this leads on so many levels.

    Be satisfied with near universal coverage? Not if the terms of the deal represent the sale of the Republic to the private sector.

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