The answer is yes … and no.
A three-judge panel of the 11th Circuit Court of Appeals has now weighed in and two of the judges one Republican and one Democratic appointee ruled unconstitutional the health care legislations mandate requiring people to have health insurance. Thats the good news.
But the court stopped short of following federal Judge Roger Vinson of Florida who struck down the whole law. The Appeals Court decided to leave the rest of the legislation in tact. That ruling immediately raised the question: If the U.S. Supreme Court came to the same conclusion could the rest of ObamaCare survive?
Although as a presidential candidate Barack Obama criticized the mandate; now the Obama Justice Department says the mandate is absolutely necessary to make the law work. Its just one of many Obama flip-flops in his long and sordid drive to control virtually every part of the U.S. health care system.
Another of the important flip-flops playing a role in the 11th Circuits decision is whether the mandate is a tax. In the fall of 2009 the president told ABCs George Stephanopoulos in a televised interview that the mandate absolutely was not a tax. Now of course the Justice Department claims it absolutely is.
But in its very carefully reasoned and well-written majority opinion the 11th Circuit ruled that the mandate is a penalty and not a tax and that some parts of the law were severable from the mandate. Lets take the last claim first.
ObamaCare is 2700 pages long and sticks the federal governments nose in virtually every segment of the health care system. Many of those regulations restrictions and intrusions have little or nothing to do with the mandate. For example:
The much-hyped free" benefits added to Medicare and private health insurance last year;
The recent and also much-hyped requirements that health insurance cover all FDA-approved contraceptives along with other services without patient copays;
The Independent Payment Advisory Board (IPAB) that will soon morph into Medicares rationer-in-chief;
The Department of Health and Human Services Secretary Kathleen Sebeliuss heavy-handed approach to private health insurance including efforts to monitor premium increases and punishing health insurers that dont toe the administration line.
However there are also good provisions such as:
Establishing a regulatory pathway for biosimilar" drugs;
And some important steps to reduce the fraud and abuse in Medicare.
The mandate to buy health insurance would have little to no effect on any of these and many other provisions. Even many of the new taxes are not necessarily dependent on the coverage mandate. They are intended to pay for Medicaid expansion and subsidized coverage for the poor health care pork given to the states high risk pools to cover uninsurable people (at least until 2014) health care clinics for the poor and many of the new free" coverages mentioned earlier.
However as big and intrusive as these steps are they pale in comparison to the mandate to buy coverage or be penalized. That provision allows Washington to micromanage every health insurance policy in the country. If people are required to have coverage then Washington must determine what kind of coverage is qualified." And they will be very expensive comprehensive policiesthe only kind most liberals and Democrats think are worth having.
If the Supreme Court were to strike down only the coverage mandate as an overreach of the federal governments constitutionally limited powers the state-based health insurance exchanges might still function. And the federal subsidies to help families with incomes up to 400 percent of the federal poverty level pay for coverage might still flow. Thats because the government can provide families with a subsidy if they choose to buy health coverage in the exchange without demanding that they do so.
By contrast without the mandate lots of people and employers would likely continue buying non-qualified coverage outside of the exchange limiting the governments ability to interfere.
But just because a health care system might find ways to function under a wounded rather than a dead ObamaCare doesnt mean thats any way to run a health care system.
Even if the Supreme Court follows the lead of the 11th Circuit or if it upholds the law congressional candidates running next year should still make repeal and replace" the second most important plank in their campaign platformsafter jobs and the economy. ObamaCare may be able to survive an unconstitutional mandate but the country cant.
Institute for Policy Innovation (IPI) resident scholar Dr. Merrill Matthews writes this week in his Right Directions column in Forbes.com: http://www.forbes.com/sites/merrillmatthews/2011/08/15/can-obamacare-survive-an-unconstitutional-mandate/
The Institute for Policy Innovation (IPI) is an independent nonprofit public policy organization based in Dallas Texas.
The answer is yes … and no.
A three-judge panel of the 11th Circuit Court of Appeals has now weighed in and two of the judges one Republican and one Democratic appointee ruled unconstitutional the health care legislations mandate requiring people to have health insurance. Thats the good news.
But the court stopped short of following federal Judge Roger Vinson of Florida who struck down the whole law. The Appeals Court decided to leave the rest of the legislation in tact. That ruling immediately raised the question: If the U.S. Supreme Court came to the same conclusion could the rest of ObamaCare survive?
Although as a presidential candidate Barack Obama criticized the mandate; now the Obama Justice Department says the mandate is absolutely necessary to make the law work. Its just one of many Obama flip-flops in his long and sordid drive to control virtually every part of the U.S. health care system.
Another of the important flip-flops playing a role in the 11th Circuits decision is whether the mandate is a tax. In the fall of 2009 the president told ABCs George Stephanopoulos in a televised interview that the mandate absolutely was not a tax. Now of course the Justice Department claims it absolutely is.
But in its very carefully reasoned and well-written majority opinion the 11th Circuit ruled that the mandate is a penalty and not a tax and that some parts of the law were severable from the mandate. Lets take the last claim first.
ObamaCare is 2700 pages long and sticks the federal governments nose in virtually every segment of the health care system. Many of those regulations restrictions and intrusions have little or nothing to do with the mandate. For example:
The much-hyped free" benefits added to Medicare and private health insurance last year;
The recent and also much-hyped requirements that health insurance cover all FDA-approved contraceptives along with other services without patient copays;
The Independent Payment Advisory Board (IPAB) that will soon morph into Medicares rationer-in-chief;
The Department of Health and Human Services Secretary Kathleen Sebeliuss heavy-handed approach to private health insurance including efforts to monitor premium increases and punishing health insurers that dont toe the administration line.
However there are also good provisions such as:
Establishing a regulatory pathway for biosimilar" drugs;
And some important steps to reduce the fraud and abuse in Medicare.
The mandate to buy health insurance would have little to no effect on any of these and many other provisions. Even many of the new taxes are not necessarily dependent on the coverage mandate. They are intended to pay for Medicaid expansion and subsidized coverage for the poor health care pork given to the states high risk pools to cover uninsurable people (at least until 2014) health care clinics for the poor and many of the new free" coverages mentioned earlier.
However as big and intrusive as these steps are they pale in comparison to the mandate to buy coverage or be penalized. That provision allows Washington to micromanage every health insurance policy in the country. If people are required to have coverage then Washington must determine what kind of coverage is qualified." And they will be very expensive comprehensive policiesthe only kind most liberals and Democrats think are worth having.
If the Supreme Court were to strike down only the coverage mandate as an overreach of the federal governments constitutionally limited powers the state-based health insurance exchanges might still function. And the federal subsidies to help families with incomes up to 400 percent of the federal poverty level pay for coverage might still flow. Thats because the government can provide families with a subsidy if they choose to buy health coverage in the exchange without demanding that they do so.
By contrast without the mandate lots of people and employers would likely continue buying non-qualified coverage outside of the exchange limiting the governments ability to interfere.
But just because a health care system might find ways to function under a wounded rather than a dead ObamaCare doesnt mean thats any way to run a health care system.
Even if the Supreme Court follows the lead of the 11th Circuit or if it upholds the law congressional candidates running next year should still make repeal and replace" the second most important plank in their campaign platformsafter jobs and the economy. ObamaCare may be able to survive an unconstitutional mandate but the country cant.
Institute for Policy Innovation (IPI) resident scholar Dr. Merrill Matthews writes this week in his Right Directions column in Forbes.com: http://www.forbes.com/sites/merrillmatthews/2011/08/15/can-obamacare-survive-an-unconstitutional-mandate/
The Institute for Policy Innovation (IPI) is an independent nonprofit public policy organization based in Dallas Texas.
