Last week, when the Eleventh Circuit Court of Appeals ruled that Obamacare’s mandate that everyone buy health insurance is unconstitutional, it paved the way for a showdown in the U.S. Supreme Court. For the first time, the mandate was struck down separately from the rest of the health-reform law, raising the possibility that we could be left with the behemoth but without its controversial head.
It is clear to me that the individual mandate is unconstitutional. But removing it while leaving the rest of the law intact would make things much worse for doctors, patients, and insurance companies alike.
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Proponents of the law have always referred to the mandate as the linchpin, because compelling everyone to have health insurance of some kind is the only way for the federal government to ensure compliance across the board with its new policies and mandates — including coverage of everyone, regardless of preexisting conditions. In fact, the biggest reason for making insurance involuntary is to avoid the so-called “insurance death spiral,” where without an individual mandate, healthy people will wait to get insurance until they get sick, which drives up prices. Further, insurance companies and drug companies decided to play ball with the president only because of the guarantee of millions more customers many of whom are still healthy.
So what will happen to my patients if the court’s decision stands?
First, insurance premiums will continue to rise. They are rising already, and the new Obamacare regulations will cause them to rise further. Whether you believe that Obamacare should mandate insurers to cover birth-control pills, sterilization procedures, morning-after pills, breast pumps, and domestic-violence screens without a co-pay, one thing’s for sure: Doing so will put financial pressure on insurers. The draft regulations of the health-reform law, instituted last year, are pushing insurers in the direction of lower co-pays and deductibles, which will also result in higher premiums as insurers struggle to preserve profits. And without the individual mandate, private insurers will have fewer customers than anticipated, amidst all this governmental pressure. Add to that the costs of covering everyone, regardless of preexisting conditions, at relatively the same price, and premiums will soar.
Second, employers, who currently provide health insurance to over 160 million workers, will see the rising premiums and decide to dump their employees onto the new state health-insurance exchanges beginning in 2014. A recent report by the consulting firm McKinsey predicts that at least 30 percent of employers will consider this move. But without the individual mandate, these employees may decide that it isn’t worth it for them to buy insurance on the exchanges, and go without it altogether.
Third, with Medicaid expanding to cover families with up to $60,000 in income in many cases, expect enrollments to swell well beyond the 16 million additional beneficiaries now anticipated. Patients dumped by employers but no longer faced with a penalty for not buying insurance will quickly apply for Medicaid if they qualify. When you add this tremendous expense to the government subsidies for the low-income patients who use the exchanges, you can see that the burden to the federal and state governments, and ultimately to the taxpayer, will be enormous.
As I’ve said many times, the last thing we doctors need is more insurance, and more government regulation of that insurance, interfering with our one-on-one practice of medicine. With the individual mandate, Obamacare is very problematic for both doctors and patients. Without the mandate, Obamacare will be the perfect storm.
It is my take that even the Dems (not the truly looney left) will be relieved if the mandate is struck down , which I believe will happen. Dismantling the rest will follow replaced by needed common sense reforms. Reality is overcoming even the most obdurate wishful thinking
I believe the entire edifice is unconstitutional. I don't believe for a second for example that the Commerce Clause gives the federal government the authority to dictate the terms and conditions of private contracts. By what authority does the federal government get to decide the minimum coverage an insurer must provide or what types of products an insurer can offer? Obamacare seeks to ban the use of high deductible plans with accompanying HSAs. Where does this power come from? In my opinion this far reaching meddling is not within the scope of the original intent of the Commerce Clause, which, was actually quite modest in its scope. If the federal government can dictate the terms of private contracts then do they not then already have dictatorial powers?
Approve the mandate and the federal government just quantum leaped into tearing the constitution to shreads. This opens the door to excessive control over all aspects of our lives. Nice choice. exorbitent health care costs or exorbitent federal control using the mandate as precedent. Europe is disintegrating before our eyes. The downward spiral started with the British NHS in 1946 and baby look at her now. Too much government control makes one sick. Free Markets should have been too big to fail. Kensynian policies have to permanently prime the pump forever to artifically maintain economics. Omabacare has to extract revenues to prime the health care pump forever in order to maintain socialist medicine. Like social security what happens when the Congress votes to divert "payments" to other "entitlements". They opened the spicots of Social Security. Loose money is a terrible thing not to "invest". How is the VA and Indian Reservation health care holding up? Death Panels. The only good Indian is a terminal one? How about some Dr. Debakey Brain transplants for Congressmen?
Lemnos, since the fall of the USSR and the Clinton years, there remains no democrat party *except* for the looney left. Moderate democrats are now known as republicans.
Your wish that "Dismantling the rest will follow replaced by needed common sense reforms. Reality is overcoming even the most obdurate wishful thinking" is laudably optimistic, but we have seen no evidence of this happening beyond a symbolic and doomed vote early in the new Congress.
Now, if the House were refusing to fund DHHS or some such tactic, I might be more optimistic myself.
Doctor R, I respectfully disagree. Even the self-identified D's have an instinct for survival in the face of the dawning realisation of the folly they have perpetrated on the American public. They will scheme and struggle over the bones of the carcass but the beast is dead and putrefying.
Maybe I'm off this morning but it almost seems as though Dr. Seigel is making an argument FOR the mandate.
He refers to Obamacare without the mandate as the perfect storm, is he willing to live with an imperfect storm; say a category 4 rather than a category 5?
I have always believed the mandate was merely a tool to ensure that everyone dumps their private policy and opts for the single payer government plan.
Based on Dr. Seigels analysis it works the same way if it is no longer enforceable.
Medicare is an entitlement for roughly 45 million people and it is going to bankrupt the country. Obamacare is an entiltement for the remaining 260 million. Won't it bankrupt us even faster?
Dr. Siegel, you may be right when you say that the end result of the law will be worse without the mandate than with it. But the role of the courts is not to make policy decisions on which laws will result in a better outcome -- only to interpret the laws as expressed in the statutes and constitution. When a statute conflicts with the constitution, the latter must prevail, obviously, but a statute constitutionally enacted by the representatives of the people -- no matter how imprudent -- must be allowed to stand.
In legal terms, this principle is reflected by the strong presumption in favor of "severability," by which the unconstitutional parts of a statute are struck out while the rest remains. As the court points out in its opinion (it would be helpful to read its discussion; it is quite accessible, even to a non-lawyer) unless the court can say conclusively that Congress would not have enacted the law without the unconstitutional provision (or Congress has written an explicit non-severability clause into the law), they must sever.
If the result is undesirable, it is for Congress to fix.
If only the mandate is struck, how do we deal with the rest of it?
The Democrats answer will be "we tried to avoid it, now we have no choice but tax dollars & single payer." If they have the ability to block repeal - control of the House, the ability to filibuster it in the Senate and/or the Presidential veto - they'll use it.
If Republicans don't have the votes, etc. to repeal, then they're going to be under significant pressure from doctors, insurers, etc. to "do something to avoid the financial catastrophe headed our way."
So you can see the train wreck coming - who's going to blink?
Personally, I'll be rooting for reversal on severability.
The classic method by which statism has progressed is for the government to impose economic controls, then when the controls cause severe problems, blame them on the tattered remnants of the free market. This is basically your observation about the Democrats: when Obamacare fails to deliver quality, low-cost health care, as it must with or without the mandate, they will call for more controls (i.e. single-payer).
But I think there going to have an even harder time without the mandate than with it. The worse Obamacare's failure, and the sooner the public experiences it, the better, and the pressure for repeal will become irresistible if the mandate is severed and struck down. The Democrats themselves must fear this also: notice that they were careful to avoid having the most obnoxious and unpopular provisions take effect before 2013 and 2014, by which time, they cynically calculated, it would be too late for the public to save itself.
If the SCOTUS affirms the 11th Circuit before the election, Obama's defeat becomes all the more likely. I cannot imagine that Democrats can retain the House in 2012. That leaves the Senate, and as you point out, the filibuster. Interestingly, few conservatives have remaked on this point, but Republicans were never going to get 60 seats, so assuming they manage to get 51 or 52, they had better be prepared to junk the filibuster and steamroller the Democrats. Let's hope there are enough non-establishment Republicans who understand that the public welfare, which depends on the repeal of Obamacare and the rest of the Democratic agenda, is more important than the Senate's old-boys club traditions.
By inserting severability into this where no explicit clause existed they have committed one of the most egregious cases of judicial activism in the history of the court.
The subject of the law itself is beyond the scope the federal government and it all needs to be extirpated.
By leaving the basic structure in place they pave the way for justification for more regulation and even more confiscatory tax rates so we can have "shared sacrifice" i.e. yoke the productive to the support of those on the government payroll(workers and non)for which the pResidnet so openly agitates.
There is no severability clause in this bill. In fact the entire funding for this bill is based upon the government's ability to force people at gun point to purchase health insurance. To sever the insurance mandate is to cut off funding for the bill, which essentially kills the bill. The chicken may run around with its head cut off for a while, but eventually it dies.
