Judge Hudson Reminds Me: We Need Single-Payer!

I am not fond of the health insurance mandate included in the Patient Protection and Affordable Care Act. I agree with Michael Moore that people aren't cars. If health insurance is so important that it warrants a government intervention in the free market as drastic as the insurance mandate introduced to us by Republican Mitt Romney in Massachusetts, then we should skip the middle man and move straight to a universal single-payer system that would guarantee coverage for every American.

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SD Blogosphere Reaction:

• Dr. Blanchard finds Hudson's ruling reasonable but still prefers electoral to judicial remedies.
• Mr. Dahle finds Hudson getting money from a GOP PR firm.
• Mr. Woodring thinks Mr. Jefferson would be proud.
• Mr. Sanborn maintains it is unconstitutional to compel citizens to purchase anything. But does that apply to state governments, too, Michael?
  

I thus react with some ambivalence to Judge Henry Hudson's ruling in favor of the Commonwealth of Virginia challenging the insurance mandate on Constitutional grounds. The ruling is pretty thin gruel in some eyes, a thorough rejection of Obamacare in others.

Hudson rules on two key points. He accepts Virginia's argument that the enforcement of the insurance mandate is a penalty, not a tax. That may not matter to the average citizen—either way, it's money out of your pocket—but it matters to the court and the Constitution. If it's a tax, then Congress can act under the General Welfare Clause, and pretty much every court challenge to health care reform ends. If it's a penalty, then Congress is acting under the Commerce Clause.

That's where things get interesting. Virginia's challenge, like others, hinges on the idea that Congress act under the Commerce Clause to compel people to participate in interstate commerce by buying health insurance. The federal government says everyone eventually participates in the health care "market," and choosing not to buy health insurance shifts costs to everyone else in the market, so federal requirements to maintain financial responsibility for one's own health care via insurance are justified regulation of interstate commerce. Judge Hudson sides with Virginia: he says the government can regulate activity but not inactivity.

Yet state and local governments apparently retain the authority to regulate a host of other economic inactivities. South Dakota still penalizes you for not buying car insurance. The sheriff will nab you for vagrancy if you don't buy or rent a domicile of some sort, and the city or county will come after you again for nuisance violations if you don't engage in enough economic activity to maintain that domicile sufficiently. We punish parents if they don't purchase sufficient food, clothing, and shelter for their children. And not that I need much persuading, but the government will get on my case if I don't engage at some bare minimum in the clothing market.

Judge Hudson's ruling does not threaten state insurance mandates; Hudson appears concerned only with "unbridled exercise of federal police powers."

But the ruling brings me back to my basic argument for a universal single-payer health insurance system. Insurance works better when you get more people in the pool to share the risk. The best insurance possible would be the biggest pool possible: all 307 million Americans in one big pool. We all pay for one big army to protect the entire country from invaders and terrorists and other disruptive forces. We could all pay for one big army of doctors to protect us from the physical and economic devastation of disease and injury.

The right way to provide that universal protection is to stop viewing health care as a matter of commerce (health care doesn't work by free market principles) and start viewing at as a general welfare issue.

Thanks, Barack: More Small Biz Offer Health Insurance

Repeal this, Kristi:

Some small businesses are benefiting from portions of the [health care reform] law, which includes a tax credit beginning this year that covers as much as 35% of a company's insurance premiums.

According to a report by Bernstein Research in New York, the percentage of employers with between three and nine workers and which are offering insurance has increased to 59% this year, up from 46% last year. The report relies on data from a September survey by the nonprofit Kaiser Family Foundation [Janet Adamy, "Health Benefits Appear on Rise," Wall Street Journal, 2010.11.02].

The tax credit isn't a full fix: health premiums are still going up, and small businesses have to do more paperwork to get Uncle Sam's help. But in a bad economy, shops with fewer than ten employees are exactly the businesses we would expect to have the hardest time offering benefits for their workers. Yet thanks to President Obama and health care reform, more of those smallest businesses are getting a tax credit that allows them offer their workers health insurance.

Go ahead, Kristi. Tell us why you don't like that. Tell us why reducing taxes and expanding small-biz health coverage is a bad idea.

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Health care reform hasn't cut into insurer profits yet. A new report from Health Care for America Now finds that the big six insurers are insuring fewer people but allocating more money toward administrative overhead and profit:

On average, each of the six now devotes 20 cents on the dollar to non-medical services, compared to 16.5 cents last year and, according to HCAN, 5 cents in 1993.

March's healthcare overhaul will require insurers to spend at least 85 cents of every premium dollar on patient care. Those changes take effect next year [Elise Viebeck, "Health Insurance Companies Likely to Break Profit Records for 2010," The Hill:Healthwatch, 2010.11.16].

Health care CEOs also have the highest median pay in the country, $10 million.

Health care reform can't come soon enough.

Insurance Agent Noem Supports Denying Pregnant Women Coverage

Kristi Noem says the health care reform law has "some fatal flaws."

Funny—that's the same thing insurance companies say about hundreds of thousands of Americans to whom they want to deny coverage:

The nation’s four largest for-profit health insurers denied coverage to more than 651,000 people over a three-year period, citing pre-existing conditions, according to an analysis of insurer data detailed in a Congressional investigation.

Between Aetna, Humana, UnitedHealth Group, and WellPoint, that averages out to a denial of coverage for one out of every seven applicants, according to an Energy and Commerce Committee memo about the investigation.

...Individuals were denied coverage based on “an extensive list of medical conditions,” the memo noted. One company had a list of more than 400 medical diagnoses used to decline coverage to those seeking it, and common conditions such as pregnancy, diabetes, and heart disease were included on the list [Marian Wang, "Insurers Denied Health Coverage to 1 in 7 People, Citing Pre-Existing Conditions," ProPublica.org, 2010.10.13].

Pregnancy as a pre-existing condition. That's the status quo ante that President Obama and the Democratic Congress are changing. That's the status quo ante that purportedly pro-life Noem would return us to by repealing health care reform. If you get pregnant, Kristi Noem wants insurance agents like herself and her husband to be able to kick pregnant women, those darned financial risks, out of their office.

Supporters Twist Noem's Rubbery Record

Noem supporters appear to indulge in their own brand of Taqiyya: it's o.k. to deceive to get Kristi elected. Noem supporters will lay baseless claims about Noem's opponent living in Texas. Now to avoid questions about hypocrisy on sexier issues, a letter-writer to that Sioux Falls paper fabricates Noem's voting record.

The topic: Senate Bill 134 from the 2009 Legislative session. This bill would have required health insurance policies sold in South Dakota to cover contraceptive drugs and devices, which some of us lefties dug but which some conservatives now boosting Noem found odious. Kristi Noem co-sponsored SB 134. Sponsoring a bill, putting your name at the top, means you support it.

Yet Noem supporter Lloyd W. Ringrose spins this revisionism for his gal Kristi:

It is my understanding that after SB134 was written, it was different than its original intent, and, in fact, Rep. Noem voted against the bill when it came to the floor of the South Dakota House of Representatives [Lloyd W. Ringrose, "Letter: Noem's Record on Abortion," that Sioux Falls paper, 2010.08.09].

Noem never voted against SB 134. It never reached the State House. The State Senate killed it (though it took them three committee votes and a full Senate vote to strike the rubbery rascal down). And it's wording was never changed. The record shows no amendments, only the original printed version that Noem sponsored. The only verifiable item on the record is Noem's sponsorship of SB 134, indicating her support for mandating insurance coverage of contraception.

Boy, I wonder if the Susan B. Anthony List included SB 134 in its endrosement of Noem as an authentic feminist.

You know, Noem supporters, if you have to make stuff up to support your candidate, you're working too hard. Maybe you should just switch to B. Thomas Marking. At least he doesn't have a record of legislation and ill-considered statements to defend.
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Update 12:33 CDT—Bonus fact check: Roger and Betty Prunty respond to the pro-Noem propaganda accusing SHS of living in Texas. The Pruntys appear qualified to comment on where the Congresswoman lives: they live next door to the Herseth Sandlin household in Brookings.

Tenth Amendment Kills Defense of Marriage Act: Health Insurance Reform Next?

The Defense of Marriage Act got toasted in federal court last week, with a Nixon appointee ruling the law a violation of the Tenth Amendment—you know, that little gem conservatives love about powers not delegated to the feds being reserved to the States and the people.

Funny, I don't think I heard repeal of the Defense of Marriage Act on the teabaggers' to-do list. It's certainly on mine: the only help I need in defending my marriage comes from the one person wearing the ring that looks like mine.

But as David Montgomery notes, conservatives might want to cheer a little more loudly—or liberals more cautiously—for this affirmation of the Tenth Amendment:

In particular, a variety of states — including South Dakota — are challenging the Patient Protection and Affordable Care Act, the 2010 health care bill, in part on Tenth Amendment grounds.

Let's (incorrectly) oversimplify things here for a moment and say that these two measures are linked by the same interpretation of the Tenth Amendment — that a robust judicial interpretation of the Tenth will strike down both DOMA and Obamacare, while a liberal interpretation will uphold both laws [David Montgomery, "Tenth Amendment Collateral Damage," Behind Government Lines, 2010.07.09].

Montgomery poses a Constitutional gut check to both sides. Imagine if we Wellstone Democrats had to trade victory on health care for victory on same-sex marriage. Imagine if Gordon Howie could be vindicated in his crusade to destroy Obamacare but had to accept Adam and Steve's domestic partner insurance benefits and adjoining burial plots in veterans cemeteries.

I think we may avoid Montogomery's proposed dilemma. Attorney General Marty Jackley and his grandstanding pals on the health insurance reform lawsuit aren't making the same Tenth Amendment argument as the DOMA challengers did.

AG Jackley will want to review South Dakota v. Dole, which figures prominently in Judge Tauro's DOMA ruling. South Dakota v. Dole was our lawsuit against Uncle Sam over the 1984 National Minimum Drinking Age Act, which required states to raise their drinking age to 21 or lose some federal highway money. South Dakota sued, saying setting the drinking age was a power reserved to the states. In 1987, Chief Justice Rehnquist and six colleagues disagreed, establishing five criteria to justify a federal law under the Spending Clause, despite Tenth Amendment doubts:

1. the intent is "general welfare";
2. conditions are clear, so states know what happens if they participate or don't;
3. conditions must relate to the purpose of the programs involved;
4. the law must be consistent with the rest of the Constitution; and
5. the financial pressure involved can't be so huge as to effectively leave the states with no choice but to go along.
   

Judge Tauro found that DOMA fails to pass Constitutional muster in part on criterion #4, because DOMA violates the Equal Protection Clause. In other words, DOMA tells states, "You have to discriminate against same-sex couples." Not cool... and not replicated in any way by the health insurance reform law AG Jackley is challenging. The insurance mandate imposes no discrimination.

Satisfied with the above reasoning on the Equal Protection Clause, Judge Tauro dodges Massachusetts's claim on criterion #3, that DOMA's conditions are not germane to Medicaid, state cemetery policy, etc. But I would suggest Massachusetts has a winning argument on that point, too, that AG Jackley won't be able to replicate on the health insurance lawsuit. Keeping homosexuals from saying "I do" is at least a couple policy steps away from the purpose of Medicaid and veteran burials. In health insurance reform, requiring every citizen to carry coverage is pretty germane to health insurance policy.

Judge Tauro's ruling finds that DOMA clearly intrudes on state sovereignty by denying each state the right to define marriage. What similar intrusion on states' rights does the insurance mandate cause? How does the federal insurance mandate prohibit states from passing any number of their own laws relating to health insurance? Massachusetts was able to demonstrate a direct conflict between its sovereignty and the requirements of the Defense of Marriage Act. AG Jackley must show a comparable conflict by which the insurance mandate and other provisions of the Patient Protection Act prevent South Dakota from exercising its sovereignty on health care.

DOMA forced states to discriminate, imposed social policy through unrelated programs, and intruded on an area of state sovereignty with a long-standing, well-attested tradition. The Patient Protection Act does not do any of those things, at least not as clearly as DOMA. AG Jackley and his quixotic friends may have other Constitutional arguments to offer, but they won't much help in last week's Tenth Amendment ruling from Judge Tauro.

Of course, I could be wrong. Dr. Blanchard, a fellow supporter of legalizing same-sex marriage, find's Judge Tauro's ruling more odious judicial activism that reads the Tenth Amendment in a way that runs counter to 220 years of Constitutional practice. Your thoughts?