From John Nelson, President of Warner Pacific who’s company is a General Agency that helps Agents with healthcare issues, quotes, and placing health insurance. He is actively involved with the process of Obamacare and talks to many people in Washington regarding the healthcare challenges we all face as Americans. It’s one of the best non-partisan viewpoints and understanding of what is going on now. The reading is long, but very informative on what is going on, that I couldn’t stop.
From John: The legal challenges against the PPACA (Obamacare), I will attempt to articulate what I think might happen. My discussion will be limited to certain aspects of the bill – primarily with regard to the individual mandate and the question over severability. So I will be excluding a fair amount. Remember, PPACA is over 2,700 pages long and affects virtually every aspect of healthcare delivery and its related financing (the insurance component) including Medicare, Medicaid and private insurers. It even deals with student loans. Also, my discussion will be limited primarily to one challenge to the law – the one that involved dozens of states suing the federal government in a Florida court.
There are a number of other legal challenges against the federal government that might lead another observer to draw a different conclusion on how these challenges will ultimately pan out down the road. But given the clout and importance of the states, many observers including myself have been particularly interested in that one. Before I address what I think might happen with the Supreme Court, I think it is important to understand the status of the States’ lawsuit and how they got here. So I will be first explaining why the states sued the federal government, how the court ruled and the subsequent action by a district appeals court.
The Reason the States Sued the Feds
The primary reason over two dozen states and other parties (the plaintiffs) sued the federal government is because of the individual mandate. They simply do not think that the federal government has the authority to mandate citizens to buy health insurance. The states believe that the decision about whether or not to compel someone to buy insurance is theirs to make and not the federal government’s. By the way, this is why folks aren’t challenging the likes of Massachusetts which has a similar mandate in place. Massachusetts has the authority as a state to do this.
In more technical terms, the states believe that the federal government via the PPACA is stretching what’s known as the “Commerce Clause” beyond what it was designed to do and is an overreach of power by the federal government. It all harkens back to our history and the compromises that came together to form our nation. The federal government has powers but so do the states. The original 13 individual states wanted to retain a certain amount of autonomy when they formed the union. So there are powers unique to the federal government and there are powers unique to the states. The Commerce Clause was created about a hundred years ago and has evolved over time. It was created to address the question of which governmental entity has the power of regulating business when business is transacted across state lines. For example, let’s say that California has the authority to regulate the California Widget Makers. Colorado has the authority to regulate the Colorado Widget Makers, too. But the way they regulate their Widget Makers is different than how California regulates its Widget Makers. The regulations are different and were promulgated out of the customs and needs of the unique populations. Let’s now assume that Joe’s California based widget company has decided to expand its customer base beyond California and into Colorado. Which regulations apply to Joe? Colorado or California’s?
The Commerce Clause exists, in part, because it answers this question and creates consistency for the likes of Joe because he only has to play by one set of rules and not two. Back to PPACA. So the law mandates that people will have to buy individual coverage starting in 2014. The states are saying “no, whether or not they should be forced to buy coverage is our call, not yours.” The feds are saying it’s their call because a persons decision about whether to obtain or go without coverage transcends state lines and affects everyone throughout the country. The states disagree. But how they’re saying no via their lawsuit in Florida is interesting because their argument is based on this: The Commerce Clause only applies to those people who are engaged in commerce. Those who choose not to buy a product are therefore not involved in commerce and the mandate, therefore, should not apply to them. They say the feds cannot force people out of inactivity into activity. The feds counter by saying that because of regulations that compel hospitals to care for people regardless of whether they have coverage or not, that while someone may appear to be inactive, they’re really not because they’ll eventually need care, they will get it and the rest of us will end up footing the bill via cost shifting (keep in mind that about 20% of our commercial premiums are a direct result of doctors and hospitals charging carriers more to make up for the lack of payments they’re getting from the feds and the uncompensated care they’re giving to folks who don’t have any coverage).
In their lawsuit, the states also asked that if the court agreed with them about the individual mandate, that the whole law should be thrown out and ruled unconstitutional. The basis of their argument is that there is no severability clause anywhere in the 2,700 plus pages of the law. A severability clause basically enables the bulk of the law to survive even if a portion of it is thrown out. These clauses are typical in business contracts (such as agent agreements). But there isn’t one in PPACA and the states said that it should be thrown out if the mandate goes down.
How the Florida Court Ruled
The Florida Court agreed with the states on both counts. Basically, the court said that the government cannot compel people to engage in an activity like buying health insurance. That authority is left to the states. And they agreed that this portion of PPACA was not severable and, therefore, the whole thing is unconstitutional. The court’s rationale here was interesting, I thought.
The reality is that Congress passes a lot of laws that do not include a severability clause. And yet many of those laws remain in place after the court has ruled against certain provisions of them because severability is implied. The courts, not wanting to thwart the will of the people via their elected representatives know that throwing out every single law because of problems with certain sections would create a logjam in government and nothing would get done. So the courts prefer not to do this. But judges don’t automatically assume severability. They go back to and research any documentation they can get their hands on to determine whether or not lawmakers intended to include severability in the legislation. And that’s just what the Florida judge did with the PPACA.
So what did he find? He found that a prior draft of the PPACA did include a severability clause which meant that for some reason, someone pulled it out when the final version was reported out of Congress – possible evidence that Congress did not mean for the PPACA to include severability. Additionally, the judge did more homework and then came across news clips of the President of the United States talking about the importance of the individual mandate and saying that without the mandate, everything else including the provisions that mandate carriers to provide guarantee issue coverage with no waiting period on preexisting conditions would collapse. We can’t force carriers to do this unless everyone is covered, he said. Congress pulled the severability clause from a prior draft of the law and the President was publicly quoted as saying that without the mandate, other aspects of the law won’t work. So the judge concluded that legislators felt that you couldn’t have one without the other. And that’s why the Florida judge cited in his reasoning that the ruling that the individual mandate is an overreach and, therefore, the whole thing must go down with it.
With the judge ruling against the feds and striking down PPACA, the feds appealed to the District Court of Appeals.
The District Court of Appeals Ruling
Three judges were involved in the ruling of the district court – two Democrats and one Republican. Basically, one of the Democrats and a Republican agreed with the Florida judge on the mandate. And they carried the argument one step further. If the PPACA’s individual mandate is left to stand, then where do the feds stop? If a person’s coverage status affects the financial health of the overall healthcare delivery system, then why not compel him to workout, eat better, etc, etc, etc? Not stopping the mandate opens the door for the federal government to impose all kinds of requirements on citizens that the government deems beneficial to overall society. Where does federal authority stop? Allowing the individual mandate to stand would be tantamount to opening a giant door for additional federal influence over states’ rights.
But the appeals court disagreed with the Florida judge over the severability clause. The court said that standard protocol within the House of Representatives assumes that most legislation is severable and that a specific clause isn’t always necessary. The court was sensitive to the impact on the insurance industry if carriers are required to take all applicants with no waiting periods on preexisting conditions with a mandate. But the judges didn’t think this was all that important given that most of the people the mandate would apply to already have coverage. Those who don’t have coverage now, they said, are those who would be eligible for Medicaid and individual subsidies. So if the bulk of the population the mandate would apply to is already insured, then the mandate is not really that important (they did not address the scenario where people may opt to drop their coverage if they know they can get it anytime when they really need it).
So now we have a bit of a disagreement between the Florida court and the appeals court – not to mention all the other PPACA-related lawsuits that are being litigated in other courts throughout the county. Conflicting views and directives from a law as expansive as PPACA is not conducive to harmonious execution of the provisions of that law. Given the two different rulings, what is a given state to do? Do you follow through on the mandate or not? Do you begin building the exchanges or not? You have one court that says no and another that says kind of. It is for these reasons and many others that people believe the next stop is the Supreme Court.
Why and When the Supreme Court Will Likely Take the Case
Before we get into how the Supreme Court is likely to reconcile these contradictions between the lower courts, let’s talk about the question of whether or not the court will even take the case on and the basis of their decision to do so. The fact is that the Supreme Court has to be asked to rule on a case first. And if they are, 4 out of the 9 justices have to agree to take it. When the court takes on a case, it’s usually because the justices believe that the case particulars can create the foundation of a ruling over an issue that the justices have viewed historically as being inconsistent with constitutional law or that is confusing and something that they believe they should address or clarify. So the justices pick and choose cases that they can best use to harvest rulings that help the country in this regard. Often, when they take on a case, it has little to do with the actual issue of the case. More, it has much to do with a bigger picture question or issue pertaining to constitutional law.
So what is the big, compelling question/issue that the Supreme Court might want to resolve using the PPACA as the vehicle? I think it’s the Commerce Clause. This clause has been around for almost a hundred years and it has slowly grown to cover a lot of commercial activity throughout the country. The line between the autonomy of the states and the role of the federal government that was so carefully engineered by our founding fathers seems to have become more blurred over the last century and especially during the last decade. Where do you draw the line? How far reaching should the Commerce Clause be?
To the extreme, if the Commerce Clause continues to grow in influence and affect more and more businesses and everyday life, then what’s the point in even having states? These are very compelling questions for the justices to address, in my opinion. And I can’t imagine a greater platform and vehicle for a grand discussion and directive on this than the PPACA. A prospective ruling on this could be the ruling of the decade – not because of the mandate but because of how it affects states and their relationships with the federal government. So that’s why I believe the Supreme Court will take it. But when will they get it? No one’s sure. The federal government will want to delay the time the case gets to the court as long as possible. The more it’s delayed, the more aspects of the PPACA are likely to be rolled out and become part of societal infrastructure – if a state has already received money and built an exchange with it, what do you do if the court throws out PPACA? My bet is the exchange (or pieces of it) stays in place. And this is why the states want to see the case go to the court right away. From what I’ve read, there’s a 50/50 chance that the court will issue a ruling before the next year’s election.
How Will the Supreme Court Rule On the PPACA?
I for one think there’s a 60/40 chance in favor of the court ruling against the mandate. I have no clue whether they will consider the mandate severable or not, but many observers think the possibility of the court overturning the entire PPACA is unlikely.
What If the Supreme Court Overturns Just the Mandate and Leaves the Rest of the PPACA Intact?
If they rule against the mandate leaving guarantee issue and the no-preexisting clauses intact, we’ll have an individual insurance market rife with adverse selection and severe price increases just like the health insurance environments we already have in New York and New Jersey. So what would lawmakers do with this kind of ruling and the prospects of the entire country turning into a New York-like market? There is no clear cut answer here. Democrats and many republicans consider medical underwriting an anathema. They don’t like it at all. So there would be a natural reluctance to repeal the guarantee issue portion of the law. The other thing is that many democrats believe that the mandate is not really necessary. Last year, I heard an advisor to the White House state that eliminating the mandate will make no difference at all and that people will continue to buy coverage because it “is the right thing to do”. So I really doubt that if the PPACA remains intact sans the mandate, that we will see congress abolish the guarantee issue portion of the law. However, I do believe that we will see regulations that will be geared towards protecting the integrity of the individual market such as special open enrollment periods.
Right now, as the law is written, anyone after January 1st, 2014 will be able to sign up for individual coverage, be covered for their pre-existing conditions and not be rated up according to their health history. There is a mandate to buy coverage but the penalty for failing to do so is very weak. This is a recipe for adverse selection and disaster. There might be a way to fix this, though, via regulations. A rule could be promulgated that states that all citizens have a one-time opportunity to sign up for individual coverage and it is during the month of January, 2014. Sign up then and you’ll get your coverage as envisioned by the PPACA. If you miss this date and change your mind later, then carriers would have the right to rate you up and impose a waiting period. I see the scenario of creating a rule like this more likely than Congress making a politically unpopular law that reinstates medical underwriting.
What If the Supreme Court Overturns the PPACA Entirely?
If the Supreme Court throws the whole thing out, then a lot of things will revert back to the days before PPACA was implemented but ghosts of it will remain.
The MLR requirement will go away – but some of the states will miss it and might pass legislation to reinstate it on their own with perhaps even tighter restrictions. Will commissions on individual climb back up to the levels they were before the PPACA was signed into law? Probably, but I wouldn’t be surprised to see carriers take a little while to increase them.
The federal funding and rules for exchanges go away – but states are already developing them. Do they stop midstream and throw out what has already been built? Or do they stay the course and continue building them (keep in mind that Utah and Massachusetts already have exchanges up and running). It’s hard for me to believe that exchange development for all states will be stopped wholesale if the PPACA goes away entirely. My bet is that some states will continue to build their exchanges albeit with an emphasis on the individual market and less on small group.
Will healthcare delivery costs go up or down if the PPACA goes away? Delivery costs are always trending up but if the law is overturned, the rate of increase is likely to slow due to providers not needing to cost shift as much as they are now due to higher populations of Medicaid patients and cuts to Medicare.
Agents and the industry can breathe a sigh of relief – maybe. For about a month or two. PPACA relieved a lot of pressure on the states to do something about escalating healthcare costs and the growing populations of uninsureds. If PPACA goes away, states will feel more compelled to act on their own. America’s healthcare system has been broken for sometime. That’s why Congress acted and created the PPACA. Unfortunately, the law is bending the healthcare cost curve up and is making things worse. But if PPACA goes away, we’re still left with a broken system that is rapidly becoming a black hole in our economy. Healthcare eats up 16% of our GDP. In 40 years, at the current rate of growth, it will account for 40% of our GDP. How are we going to pay for it? PPACA’s demise would lead to a short term sigh of relief for many but the problems that we’ve had before and after March, 2010 will continue to haunt lawmakers, business, agents and our industry until they are tackled in a meaningful way.
John Nelson
If you would like more information or have any questions, please call me at 949-248-3112 or visit www.capistranoinsurance.com and send me an email.
Thank you and God Bless America!
Darrell Fryer