Why Obama's Healthcare Law Is Constitutional
David Cole, The Nation, 3/26/12 issue
What is at stake in the case challenging the constitutionality of the Affordable Care Act (ACA), scheduled for oral argument in the Supreme Court in March? The challengers maintain that the case is about fundamental liberty, specifically our freedom not to be compelled to purchase things we dont want. But that frame, while undoubtedly appealing to the radical libertarian strain in the Tea Party, is misleading. In fact, the only liberty that would be protected by a victory for the challengers is the freedom of insurance companies to discriminate against sick people.
The case is principally focused on the individual mandate, the laws requirement that people who are not insured and can afford health insurance must buy it or pay a tax penalty. The federal government is a government of limited powers, and although Congress has the power to regulate interstate commerce, the challengers concede, if it can force people to enter into commerce in order to regulate them, then its powers are in effect unlimited. The reason Congress has never imposed such a mandate, they maintain, is that the power does not properly exist.
The Supreme Court deems the issue sufficiently serious to schedule an almost unprecedented five and a half hours of oral argument (it usually schedules a single hour). But the argument against the law is remarkably flimsy. Two of the countrys most conservative judges, Jeffrey Sutton of the Sixth Circuit and Laurence Silberman of the DC Circuit, were unable to find a valid argument against the law and voted to uphold it. Harvard law professor Charles Fried, Ronald Reagans solicitor general, has also said the law is plainly constitutional. Its always dangerous to predict Supreme Court rulings on controversial cases, but if the Court applies its precedents faithfully, it should be a victory for the administration.
Although the challengers focus their attack on the individual mandate, that provision cannot be separated from the acts prohibiting insurance companies from denying coverage or charging higher rates based on pre-existing medical conditions. No one contests Congresss constitutional authority to enact that overwhelmingly popular protection from dubious insurance practices. But without the individual mandate, the nondiscrimination protection would be unworkable. People would have a powerful incentive to wait until they get sick before they buy insurance, because they could not be penalized for doing so. Such free-riding would defeat insurances purpose of spreading risk. As one expert told Congress, health insurance cannot work if people can delay buying it until they are on the way to the hospital. Several states have tried to prohibit discrimination against those with pre-existing conditions, but the reforms have failed everywhere they have been enacted without an individual mandate. (Only in Massachusetts, where the protection is coupled with a mandate, has the reform been sustainable.)
full: http://www.thenation.com/article/166672/why-obamas-healthcare-law-constitutional
Vincardog
(20,234 posts)That is not the purpose of insurance COMPANIES.
According to the much vaulted Free market rules the purpose of insurance companies is to MAXIMIZE profits.
If their goal was to provide health CARE by spreading risks or more accurately spreading COSTS
everyone would be covered and everyone would pay.
The problem is in the model. If health CARE is for profit. The profit motive will guarantee minimum health CARE will be provided at the maximum possible COST.
If however the health and welfare of the PEOPLE is the objective, we will look to provide the most effective health care at the minimum cost. Thus we would spend the majority of our health care dollars on PREVENTATIVE where it is cheapest and most effective. Instead we spend TOO much on insurance overhead and administrative expenses which add little to our health.
EC
(12,287 posts)Thomas' wife is working with lobbyests and PACs to overturn it. That tells me her husband told her there was nothing the SC could do about it, that it was Constitutional.