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The Individual Mandate’s Shameless Flip-Floppers

From The Hill:

GOPers Who Were For It Before They Were Against It

By Juan Williams

12/05/11 05:15 AM ET

What do Newt Gingrich and Mitt Romney, the leading contenders for the Republican presidential nomination, have in common?

Long before President Obama, both supported an idea they now pretend to spurn — the idea of requiring people to buy health insurance.

As recently as 2009, Romney publicly supported, the “individual mandate” for buying health insurance. And as recently as last month one of Gingrich’s websites still endorsed the “mandate” for all Americans earning more than $50,000 annually.

Romney and Gingrich are not alone in their history of supporting the idea of a government requirement that everyone buy health insurance. As governor of Utah in 2007, Jon Huntsman endorsed a healthcare reform plan from the United Way of Salt Lake City that called for a mandate.

“I think if you’re going to get it done and get it done right, the mandate has to be part of it in some way, shape or form,” he said at the time.

Gingrich, Romney and Huntsman are wide open to charges of political hypocrisy.

They apparently feel the need to fake their outrage over the individual mandate to win the GOP nomination. In an age of outrageous political posturing — telling lies and daring anyone to call you on it — this is the strongest indicator of the current lack of leadership and honest political debate about major national problems.

And it is not even good politics. Continue reading

The Medicaid Ambush

From Slate:

The Supreme Court’s unexpected and astounding reasons for wanting to hear a challenge to Obamacare.

By and

Monday, Nov. 14, 2011

The Supreme Court agreed Monday to hear a challenge to the Affordable Care Act, which means a five-and-a-half-hour oral argument before the court this spring, with a ruling likely by the end of June. It’s hardly surprising that the court agreed to hear this case: There was a deep split of opinion between several federal appellate courts, 26 states say they hate this law, and the Obama administration wanted the court to hear it quickly. The surprise is which issues the court has asked each side to address, and for how long. By this measure, the court’s announcement is precisely 64 percent expected, 18 percent unexpected, and 18 percent astounding.

The health care law, signed by President Obama in March 2010, extended insurance coverage to more than 30 million Americans, in part by requiring citizens to purchase health insurance by 2014 or face a tax penalty. That “individual mandate” provision was the one that launched a thousand Tea Parties, and it’s the issue to which most constitutional scrutiny has been devoted: Can the government, under the Constitution’s Commerce Clause, regulate “inactivity” (i.e., the decision not to purchase health insurance), and by what principle can we limit such unspeakable powers (i.e., how far can it go in forcing citizens to eat broccoli)?

The court will hear arguments on that issue for two hours. It will also entertain 90 minutes of argument on the mandate’s “severability”—that is, whether the entire law collapses if the individual mandate provision is deemed unconstitutional. (The 11th Circuit Court of Appeals, even as it struck down the mandate, believed that the law itself would stand.)

So that’s three-and-a-half hours of debate. What are they going to argue about for the remaining two hours? That’s where it gets interesting. Continue reading

ACA Opponents Wine & Dine Justices Scalia, Thomas

From The Los Angeles Times:

Supreme Court Justice Antonin Scalia speaks to a policy forum in Washington last month. (Manuel Balce Ceneta/AP)

By James Oliphant

November 14, 2011

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas. Continue reading

CNN Poll: Support Rises For Health Insurance Mandate

From CNN:

Posted by

November 14th, 2011

Washington – The public is divided over the idea of requiring all Americans to have health insurance, according to a new national survey. But a CNN/ORC International Poll also indicates that support for the proposal, a cornerstone of the 2010 health care reform law, has risen since June.

The survey’s Monday release comes as the Supreme Court has agreed to decide the constitutionality of the sweeping health care reform law that was passed by a Democratic Congress and championed by President Barack Obama. The justices made their announcement in a brief order issued on Monday. Oral arguments would likely be held in late February or March, with a ruling by June, assuring the blockbuster issue will become a hot-button political issue in a presidential election year.

According to the poll, 52% of Americans favor mandatory health insurance, up from 44% in June. The survey indicates that 47% oppose the health insurance mandate, down from 54% in early summer.

“The health insurance mandate has gained most support since June among older Americans and among lower-income Americans,” says CNN Polling Director Keating Holland. “A majority of independents opposed the measure in June, but 52 percent of them now favor it.”

The poll was conducted for CNN by ORC International Poll from November 11-13, with 1,036 adult Americans questioned by telephone. The survey’s overall sampling error is plus or minus three percentage points.

South Carolina: Home Of Individual-Mandate Hypocrisy

From Slate:

South Carolina Gov. Nikiki Haley | Credit: Chip Somodevilla/Getty Images.

Why aren’t conservatives complaining about this South Carolina insurance law?

By |

Posted Friday, Sept. 30, 2011

The “individual mandate” in President Obama’s Affordable Care Act has provoked incredible enthusiasm among the act’s supporters and towering rage in its opponents. The obligation either to purchase insurance or to pay a fine whose proceeds would be used to offset the cost of care to the uninsured is viewed either as an essential part of the architecture of health care reform or as an affront to liberty. In few places has the attack on the individual mandate been more vociferous than in South Carolina, where both new Governor Nikki Haley and Senator Jim DeMint are leading members of the Tea Party movement. They view the individual mandate as inimical to our Constitution and the worst manifestation of government excess.

So it may surprise you to know that South Carolina has its own individual mandate—structured exactly like the federal health care mandate, but for auto insurance. Unlike virtually all other states, which require every driver to carry liability insurance, South Carolina has a more complex system. Under South Carolina state law, in effect for more than a decade, a car owner in the state must either have liability insurance or obtain an “uninsured motorist registration.” The fee for the uninsured registration is $550 and is deposited into the “uninsured drivers fund.” The website of the South Carolina Department of Insurance explains that the $550 fee is used to “offset the costs of uninsured motorist coverage.” (Some portion is also used for consumer education programs.) The “uninsured motorist coverage” is a cost borne by drivers who have their own liability insurance but also need additional insurance to provide for coverage in the event they have an accident caused by a driver who does not have liability insurance—the “uninsured driver.”  By statute—SC Code section 38-77-155—funds from the uninsured drivers fund are distributed to insurers who offer this uninsured motorist coverage. Bottom line: South Carolina forcibly transfers money from drivers who refuse to buy insurance to drivers who do buy insurance to cover the costs of risk created by the drivers who don’t buy insurance. Continue reading

Latest Healthcare Ruling A Double-Win For Obama

From The Atlantic:


By Andrew Cohen

Sep 9 2011, 2:10 PM ET

The 4th U.S. Circuit Court of Appeals ruled that the state of Virgina has no case to sue the government over federal heath care reform.

The 4th U.S. Circuit Court of Appeals gave a double victory Thursday to the White House, the Justice Department, and other supporters of the Patient Protection and Affordable Care Act. Actually, you could call it a double-double.

Not only did the three-judge panel of federal judges dismiss two separate challenges to the new health-care law. But it did so on jurisdictional grounds, which means the justices of the United States Supreme Court now may have other viable legal options available to them next year should they wish to avoid resolving this battle on the merits. And judges typically love to resolve cases without getting to the merits if they can get away with it.

In Virginia v. Sebelius, a unanimous panel declared that Virginia had no standing to sue for what state lawyers claimed was a “sovereign injury” caused by the federal health care law. Virginia couldn’t get around federal jurisdictional rules, the 4th Circuit ruled, just because the state had enacted its own measure, the Virginia Health Care Freedom Act. The state law — which states that “[n]o resident of this Commonwealth… shall be required to obtain or maintain a policy of individual insurance coverage” — was signed into law one day after President Barack Obama signed into law the federal health measure. Continue reading

A Win For The Individual Mandate

From The Washington Post:


Health reform’s individual mandate does not get a lot of love. The mandate – which requires most Americans to purchase health insurance come 2014 – polls horribly, is thought by many to be unconstitutional and, from a policy perspective, often derided as too weak to actually prod us into buying coverage.

But, today, there’s some new evidence that health reform’s individual mandate will be a powerful policy tool. Seventy-six percent of the uninsured say they would rather purchase insurance than pay the law’s penalty.

That number comes from Oliver Wyman, a consulting firm that has put together the first major market survey of the uninsured, looking at who will buy coverage under the health reform law. When asked to choose between paying a penalty and purchasing coverage, 76 percent of the uninsured said they’d rather purchase coverage. That would reduce the number of people without insurance to 5 percent of the population and have 25 million Americans purchasing through the exchanges, just slightly higher than the 24 million that the CBO projected. Continue reading

Can We Have Health Reform Without An Individual Mandate?

From The Nation:

Credit: Creative Commons/janinsanfran

Yes, It’s Called ‘Medicare for All’

By John Nichols

August 13, 2011

The essential vote on the 11th Circuit Court of Appeals panel that ruled that the individual-coverage mandate in President Obama’s healthcare reform is unconstitutional did not come from a reactionary Republican appointed by Ronald Reagan or George W. Bush.

Rather, it came from a respected jurist whose two appointments to the federal bench—first as a judge for the Northern District of Georgia in 1994 and then to the 11th Circuit in 1997—were made by then-President Bill Clinton. No, Judge Frank Mays Hull is not a raging lefty, but nor is she a right-wing judicial activist. A former law clerk for Judge Elbert Parr Tuttle, who as the chief justice of the US Court of Appeals for the Fifth Circuit from 1960 to 1967 led the court in issuing a series of epic decisions on behalf of civil rights, Judge Hull has a reputation as a moderate defender of the rule of law who has earned reasonable marks for her pragmatic and decidely mainstream interpretations of the Constitution.

So why did Hull join with another member of the appeals court panel (Chief Judge Joel Dubina, an appointee of George H.W. Bush) to form the 2-1 majority that rejected the individual mandate while affirming the rest of the law? Perhaps it was because one can favor sweeping healthcare reforms—including an expansion of Medicare—while still believing that it is wrong to require Americans to buy insurance from for-profit insurance companies.

Hull telegraphed her thinking with repeated questions during June oral arguments in Atlanta regarding the case. Noting that “the panel spent a significant amount of time discussing whether the mandate is ‘severable’ from the rest of the law,” Politico pointed out that: “Hull in particular asked the federal government three times where the line should be.”

Ultimately, Hull and Dubina came to the conclusion that the individual mandate could, and should, be removed from an otherwise constitutional plan.

Why? Because, as the judges wrote in their majority decision: “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.”

Those of us who favor fundamental healthcare reform have always been uncomfortable with the individual mandate. So was candidate Barack Obama, who distinguished himself from Hillary Clinton (a mandate backer) by saying in a February 2008, interview: “Both of us want to provide health care to all Americans. There’s a slight difference, and her plan is a good one. But, she mandates that everybody buy health care. She’d have the government force every individual to buy insurance and I don’t have such a mandate because I don’t think the problem is that people don’t want health insurance, it’s that they can’t afford it. So, I focus more on lowering costs. This is a modest difference. But, it’s one that she’s tried to elevate, arguing that because I don’t force people to buy health care that I’m not insuring everybody. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”

Candidate Obama was right. Continue reading

ACA’s Individual Mandate Wins First Appellate Review

From The New York Times:

By –Published: June 29, 2011

The Obama administration won the first appellate review of the 2010 health care law on Wednesday as a three-judge panel from the United States Court of Appeals for the Sixth Circuit in Cincinnati held that it was constitutional for Congress to require that Americans obtain health insurance.

 The ruling is the first of three opinions to be delivered by separate courts of appeal that heard arguments in the health care litigation in May and June. Opinions are expected soon from panels in both the Fourth Circuit in Richmond, Va., and in the Eleventh Circuit in Atlanta.

Lawyers on both sides of the case widely expect the Supreme Court to take one or more of the cases, perhaps as soon as its coming term, which starts in October. The speed of the Sixth Circuit ruling could help ensure that timing. Continue reading

AMA Votes In Support of Individual Mandate

From The Hill:

By Sam Baker – 06/20/11  

The AMA’s House of Delegates voted 326-165 to support the law’s requirement that most people buy insurance. The coverage mandate is at the center of several lawsuits challenging the new law’s constitutionality.AMA President Cecil Wilson said the “overwhelming” vote shows that doctors still believe a mandate is necessary to achieving universal coverage.He emphasized that the AMA — the country’s largest trade association for doctors — backed the individual mandate before the debate over healthcare reform. Many members of the traditionally conservative group wanted to see that position reassessed at the AMA’s annual meeting this week in Chicago.
Continue reading