Category Archives: Healthcare

Judicial Restraint vs. Judicial Activism — Conservative Style

By tmess2 | Published July 21, 2019

When the Supreme Court was expanding the rights of minorities and women back in 1950-1975, conservatives were strongly emphasizing the need for judicial restraint and condemning the Supreme Court as an activist court.  Now that the shoe is on the other foot, we are beginning to see how much conservatives really believe in judicial restraint and how activist they are willing to be to get what they want.

There are several doctrines that courts have traditionally used that “restrain” courts from reaching to strike down laws or at least from striking down more laws than they should.  Currently, there is the latest case challenging the Affordable Care Act.  This case claims that, when the Republicans passed there tax cut last year, Congress by setting the penalty for not complying with the individual mandate at zero made the entire Affordable Care Act unconstitutional.

To understand the theory, you have to go back to the decision upholding the individual mandate in 2012.  Under that decision, the individual mandate was only constitutional because it was a tax.  Under the theory being pushed by Republicans, because the tax is now set at zero, the individual mandate is unconstitutional. And the trial court — accepting this theory — found,  that because the individual mandate is unconstitutional, the entire act is unconstitutional.  This case is currently before the Fifth Circuit and the three-judge panel seemed likely to affirm — at least the finding that the individual mandate is unconstitutional. Continue Reading...

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The Path Forward

By tmess2 | Published July 29, 2017

Looking at the Republican debacle over Health Care, I was constantly reminded of two things.

First, I keep on thinking of a classic Saturday Night Live skit from their third season portraying Richard Nixon as a vampire-like figure who keeps coming back.  Like Nixon in that skit, just when we think that the Republican efforts at gutting health care are done, they find a way to resurrect the bill.  Since the Senate never actually voted on the final bill (which was put back on the calendar after the substitute amendment failed), it could be brought back to the floor at any time.

Second, I am reminded of Representative Pelosi’s comments while the Affordable Care Act was pending that we would not know what was in the bill until it finally passed.  While Republicans made a lot of hay out of this comment, she was expressing the reality of the legislative process.  Until the vote on the final version of the bill, it is possible that legislators will add new provisions and delete others.  Normally, however, under ordinary process, there is a core of the bill that stays relatively the same.  With this bill, the Republicans have treated the bill as a placeholder.  The message in the House and the Senate has been just pass this bill whatever its flaws and we can decide on the real terms of the bill later.  The concept that the conference committee would write an entire bill from scratch as opposed to merely reconciling the disagreements between the two houses is mindboggling. Continue Reading...

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Healthcare: What’s Next?

By DocJess | Published July 19, 2017

As you’ve certainly heard, the Senate tax-cut-for-the-wealthy-at-the-expense-of-the-sick has met it’s death. Yes, Mitch will hold a “Repeal Only” bill next week, but that’s not going anywhere either. You may wonder why that vote is being held, and the answer is rather simple: Donald Trump is intellectually impaired. The White House has put a lot of pressure on Mitch to hold said vote because first, while #NotMyCheeto cannot name all 52 GOP senators, he holds out some hope that he can corral people to vote for it, and second, because he views the vote along the lines of a “loyalty” vote. He wants that opportunity to take names on who is “fir ‘im, and agin ‘im”. Also, Mitch would rather be a loser than a quitter.

So what’s left? Basically the option that cost John Boehner the speakership: bipartisanship. The other option would be for #NotMyCheeto to cease the insurance company payments, and dismantle the individual mandate via Executive Order, which would throw 32 million people off the roles of Exchange-based insurance as well as Medicaid as soon as the insurance companies could get new rate levels through the state insurance commissioners. While Trumpkin couldn’t care less, since his criminal family isn’t affected, and there’s no impact on Russians, the House and Senate DO care because the full house and a third of the Senate is up for re-election next year, and voters never forget who took something from them.

At the White House yesterday, Trumpkin said: “We’re not going to own it. I’m not going to own it. I can tell you the Republicans are not going to own it. We’ll let Obamacare fail, and then the Democrats are going to come to us.” Idiot. Continue Reading...

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Health Care 2019

By tmess2 | Published March 26, 2017

Barring something unexpected, as discussed in Doc Jess’s post, the major action for the rest of this Congress on health care is likely to be at the administrative level with Tom Price doing his best to undermine the Affordable Care Act.  However, there have been some unanticipated holes that have developed over the past seven years that do need to be fixed.  As such, if Democrats regain control of the House and Senate in 2019 what issues should they be looking to address.

At the top of my list is the Medicaid expansion hole.  Back in 2012, the Supreme Court ruled that states did not have to participate in the Medicaid expansion.  The Affordable Care Act assumed that every state was going to participate in the expansion and only provided for subsidies for those who did not qualify for Medicaid.   When a significant number of states opted to not expand Medicaid coverage, this created a group who earned to much to sign up for Medicaid, but too little to get subsidies to purchase insurance.  The obvious fix is to expand the subsidies to cover this gap group.

The second issue concerns the exchanges.  Again, the Affordable Care Act assumed that most (if not all) states would opt to set up exchanges just on principles of state autonomy.  (Why would Republicans who complain about the feds taking over the insurance market let the feds take over the insurance market in their states?)  It turned out that Republicans in the state wanted the symbolism of resisting more than actual local control.  This problem offers a chance to offer the Republicans a two-edged sword.  The Republicans complain that one of the problems with health insurance is that companies are unable to offer policies that cross state lines.  (Placing the blame on regulations is not accurate, and the biggest restraint on such policies is the need of insurance companies to have deals with the local hospitals.)  So I would offer up for discussion an exemption for policies offered on the federal exchange.  If a state does not have its own exchange, policies on the federal exchange will be exempt from state regulations and will only be subject to federal regulations.   If a state wants to regulate those policies, it can take over the exchange.  If not, a state will not be permitted to sues state regulations to obstruct the federal exchange.  My hunch says that the states will not opt to set up their own exchanges and that the exemption of insurance companies from state regulations will not increase the number of policies that cross state lines. Continue Reading...

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Healthcare: Next Steps

By DocJess | Published March 26, 2017

We had our day of glee over the abject failure of the GOP. And let’s recap: they had SEVEN YEARS to come up with a replacement and chose not to. It’s critical to understand why they didn’t, because it affects what we do moving forward. The Republicans never developed a replacement because they don’t want government to have any part of healthcare (or social services of any sort). Their goal is to dismantle not just the ACA, but Medicaid, Medicare and then Social Security. As a side dish – public education, environmental protection, etc. That’s their goal. And when your goal is death, you’re never looking to develop a treatment plan.

The AHCA bill was a tax bill, plain and simple. Its thrust was to create a trillion dollars in savings so that Ryan and crew could enact the tax cut bill they want: without the savings, it will be harder to decrease monies paid by individuals making over a million a year. They’ll likely make some progress, however, on corporate tax dismantling. More on that below.

It went down in flames for several reasons: yes, the protests certainly gave cover to Republican in moderate districts, especially those that Hillary Clinton carried last year. Don’t underestimate that, and DON’T STOP!!! But the overarching reasons are all on the Republican side: they have to do with the Freedom Caucus which stood en bloc in the face of direct threats from the White House. They couldn’t care less what their party thinks of them, they’re not afraid of Trump and Bannon, they don’t even care that much about their constituents. They are ideologues with no understanding of how government functions, only how to stop it. Their goal is NO government, and they’re too stupid to understand that “NO government” is synonymous with “Failed State” and “Anarchy”. In our planning, we need to consider the best ways to leverage them. Remember, this was never going to pass the Senate, and we suspected that when the first draft was published in early March. (See paragraph six in this link.) Continue Reading...

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