# Individual Mandate

Iowa reaction to ruling striking down health insurance reform

U.S. District Court Judge Roger Vinson struck down last year’s health insurance reform law yesterday, backing the lawsuit filed by Florida’s attorney general and joined by 25 other states. Vinson’s 78-page opinion can be read in full here. David Kopel summarized the key points at the Volokh Conspiracy blog:

1. The 26 states lose on the argument that the mandate for drastically increased state spending under Medicaid is unconstitutional. State participation in Medicaid always has been voluntary, and remains so. […]

2. The plaintiffs win on the individual mandate. The individuals plaintiffs, and the National Federation of Independent Businesses have standing to challenge the mandate. So do Utah and Idaho, at the least, because of state statutes forbidding health insurance mandates. According to original meaning, “commerce” was trade. Citation to Randy Barnett. Even the modern precedents require “activity” as a predicate for commerce clause regulation.[…]

3. Necessary & proper does not save the mandate. […]

4. The mandate is not severable from the health control act. Defendants themselves have argued forcefully that the mandate is absolutely essential to the entire regulatory scheme. There is no severability clause. The mandate is tightly integrated into the entire act. […]

6. The entire act is declared void. […] Of course the 11th Circuit might grant a stay, and Judge Vinson might also do so, but as of right now, there is no stay.

The White House immediately made clear that the federal government will continue to implement the Affordable Care Act. I would be shocked if the U.S. Court of Appeals doesn’t grant a stay of Vinson’s ruling, especially since two other U.S. district court judges ruled last year that the individual mandate is constitutional. Vinson’s ruling went further than U.S. District Court Judge Henry Hudson’s decision in December, which struck down the federal requirement that individuals purchase health insurance but let the rest of the law stand. Click here for links to numerous reactions to Vinson’s ruling. Legal analyst Ilya Somin finds the judge’s reasoning persuasive, while Orin Kerr argues that Vinson erred by going against precedent (Supreme court case law). Dave Weigel explains how Congressional Democrats failed to include a standard severability clause in this legislation. Brian Beutler notes that U.S. Supreme Court Chief Justice John Roberts (one of the most conservative members of the high court) recently struck down a single provision of a law that lacked a severability clause.

Representative Steve King (IA-05), a champion of efforts to repeal health insurance reform, was jubilant about yesterday’s news: “Many of us opposed ObamaCare in part because of our oath to the Constitution. Any member who had reservations should now be empowered to vote with those of us who will cut off all funding to ObamaCare starting with the continuing resolution.” The full text of King’s press release is after the jump.

Iowa State Senator Jack Hatch blasted Vinson’s “blatant judicial overreach” and expressed confidence that courts will ultimately uphold the federal law. Hatch chairs the Working Group of State Legislators for Health Reform and joined more than 70 state lawmakers who filed a “friend of the court” brief in the Florida case supporting the constitutionality of the law. The full press release from Progressive States Network and the Working Group of State Legislators for Health Reform is after the jump.

Senators Tom Harkin and Chuck Grassley didn’t release any statement on Vinson’s ruling, which surprised me, since both quickly reacted to Hudson’s ruling against the individual mandate in December. Yesterday Harkin publicized the first in a series of Senate HELP Committee hearings about “the tangible, positive impact that [health insurance] reform is having on Americans’ lives.”

Governor Terry Branstad joined the plaintiffs in the Florida lawsuit two weeks ago (disregarding Iowa Attorney General Tom Miller’s opinion). I was surprised not to see any statement from the Branstad administration on Judge Vinson’s ruling yesterday. I will update this post with further Iowa reaction as it becomes available.

UPDATE: Through the governor’s Twitter account, Branstad’s communications director Tim Albrecht said released this statement:

“This health care law is clearly not sustainable nor is it affordable for the long-term. I believe it would be appropriate for both parties to start over and advance a plan that is more workable.”

When I asked how questions about whether the law is sustainable or affordable related to the constitutional matters at hand (judge rejecting argument against Medicaid expansion but accepting case against individual mandate), Albrecht added, “The governor continues to believe the individual mandate is unconstitutional.” To my knowledge, Branstad has not publicly acknowledged that a few years ago he supported a state mandate to purchase health insurance.

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Founding Father signed health insurance mandate into law

State attorneys general have filed two federal lawsuits challenging the individual mandate to purchase health insurance, which President Barack Obama signed into law last week. Those lawsuits look like pure political posturing to me, given the well-established Congressional powers to regulate interstate commerce and taxation.

It turns out that precedent for a health insurance mandate is much older than the 1930s Supreme Court rulings on the Commerce Clause. Thanks to Paul J. O’Rourke for the history lesson:

In July, 1798, Congress passed, and President John Adams signed into law “An Act for the Relief of Sick and Disabled Seamen,” authorizing the creation of a marine hospital service, and mandating privately employed sailors to purchase healthcare insurance.

This legislation also created America’s first payroll tax, as a ship’s owner was required to deduct 20 cents from each sailor’s monthly pay and forward those receipts to the service, which in turn provided injured sailors hospital care. Failure to pay or account properly was discouraged by requiring a law violating owner or ship’s captain to pay a 100 dollar fine.

This historical fact demolishes claims of “unprecedented” and “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty…”

Perhaps these somewhat incompetent attorneys general might wish to amend their lawsuits to conform to the 1798 precedent, and demand that the mandate and fines be linked to implementing a federal single payer healthcare insurance plan.

O’Rourke posted the full text of the 1798 legislation as well.

I’m not one to claim American’s “Founding Fathers” could do no wrong; after all, President Adams also signed the Sedition Act, which violated the First Amendment. But Republican “strict constructionists” say we should interpret the constitution only as 18th-century Americans would have understood it. Some claim judges should cite only 18th-century sources when interpreting the constitution. Well, Congress enacted and the president signed a health insurance mandate less than a decade after the U.S. Constitution went into effect.

I don’t expect these facts to affect Republican rhetoric about health insurance reform. Thankfully, Iowa Attorney General Tom Miller is not wasting our state’s money on this frivolous lawsuit. So far I haven’t heard any Republicans demand his impeachment, as some GOP legislators are doing in Georgia.

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Republican distortion watch: Grassley edition

Senator Chuck Grassley complained this week that he is not being included in negotiations to merge the health care reform bills passed by the Senate Finance Committee and Committee on Health, Education, Labor and Pensions.

Finance Chairman Max Baucus, a Montana Democrat, “assured us that Republicans would be at the table through the process of negotiating a single bill,” Grassley said. “And obviously that’s kind of ruled out now by the fact that I am not a part of a bipartisan agreement.”

Look, the HELP Committee adopted about 160 Republican-proposed amendments to the health care bill during the markup process, yet not a single Republican voted to send that bill out of committee. Then Baucus bent over backwards to include Grassley in negotiations all summer, but he joined all the Finance Committee Republicans except for Olympia Snowe in voting against the health care bill. Why should Grassley have a say in how the HELP and Finance bills are combined?

Now Steve Benen catches Grassley “going around the bend” in his criticism of health care reform:

This week, Grassley appears to have completely lost it, offering at least tacit support for radical “Tenther” theories that insist that health care reform may be unconstitutional.

    “I’m not a lawyer, but let me tell you, I’ve listened to some lawyers speak on this. And you know, it’s a relatively new issue. I don’t think we’ve ever had this issue before of having to buy something. And a lot of constitutional lawyers, saying it is unconstitutional or at least in violation of the 10th Amendment. Now maybe states can do this, but can the federal government? So, I have my doubts.”

This was specifically responding to a question about individual mandates — a measure he’s already endorsed as a good idea that he supports.

Obvious inconsistencies notwithstanding, the notion that health care reform is “in violation of the 10th Amendment” is demonstrably ridiculous. The idea that “a lot of constitutional lawyers” see health care reform as unconstitutional is absurd.

For more details on Grassley’s previous public support for an individual mandate to purchase health insurance, read this post by Benen or this one by Jason Hancock.

Grassley’s misleading and inconsistent comments about health care reform have greatly harmed his reputation with Iowa Democrats and independents this year. It will be interesting to see whether he can repair the damage before next November. I don’t see him getting nearly as large a crossover vote as he has in his previous elections.

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Grassley votes no as Senate Finance Committee approves health care bill

The Senate Finance Committee approved its health care reform bill on a 14-9 vote yesterday, with all Democrats and Republican Olympia Snowe of Maine voting in favor. Ranking Republican Chuck Grassley, a key member of the committee’s “gang of six” negotiators this summer, joined the rest of the Republicans in voting against the bill. Speaking to the Des Moines Register Grassley “said he has no regrets about working with majority Democrats on the committee, only to oppose the bill. Given more time, he might have struck a deal, he said.”

This guy is the perfect picture of a bad-faith negotiator. From the Register:

Grassley said he objects most to provisions in the bill that would require Americans to obtain health insurance. But Grassley also said the bill does too little to block federal money being spent to provide abortions and provide coverage for illegal immigrants.

“Those aren’t the only things, but I think they are the most controversial or the most difficult to deal with,” Grassley told The Des Moines Register.

As Jason Hancock reported for the Iowa Independent last week, Grassley publicly supported the idea of an individual mandate to purchase health insurance this summer. I agree that requiring individuals to purchase insurance is problematic if there is no broad-based public health insurance option (because then the government is just subsidizing private insurers), but of course Grassley opposed the public option too.

In addition, the “gang of six” made changes in the bill before markup to address groundless Republican claims about illegal immigrants. According to PolitiFact, the “Baucus plan explicitly states that no federal funds – whether through tax credits or cost-sharing credits – could be used to pay for abortions (again, except for rape, incest, or the life of the mother).”

Trying to cut deals with Grassley is a waste of time. For more on that point, check out the skipper’s recent diary.

Speaking of Grassley, Cityview’s Civic Skinny thinks he should be worried about a potential race against attorney Roxanne Conlin. When a reporter asked Secretary of Agriculture Tom Vilsack whether his wife, Christie Vilsack, might run against Grassley, he replied, “You should ask her about that.” (UPDATE: Dave Price did ask her and wonders whether she is the mystery candidate.)

As for the health care bill, the Finance Committee and HELP Committee versions have to be merged before a floor vote. It’s imperative that a public option be included in the version sent to the floor, and HELP Committee representative Chris Dodd says he will fight for that. On the other hand, Snowe and a few Democrats, like Blanche Lincoln of Arkansas, might vote against the bill on the floor if it contains a public option. Chris Bowers wrote more at Open Left about the merging process in the House and Senate.

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A pattern to Grassley's obstructionist ways

In February 2009, Grassley said he wouldn't vote for the stimulus package unless it contained mortgage relief for struggling homeowners even though he held a fundraiser with mortgage industry brass.  He also voted against cramdown months after calling for mortgage relief in Sen. Dick Durbin's amendment that would have allowed single residence homeowners to reshuffle their mortgage if they were falling behind on payments.  The law currently allows multiple residence homeowners to do this for their vacation homes and yachts. 

Now,  Grassley says the deal breaker for him in health reform is the individual mandate.  If folks are penalized for not carrying insurance, he won't support health reform.  But last summer he supported the individual mandate in at least 2 interviews. 


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Grassley's case against health care reform

For months, White House officials and Senate leaders praised the “gang of six” negotiations toward a bipartisan deal on health care reform, even as other observers doubted the Republicans in that group were negotiating in good faith. At the beginning of the summer recess in August, Senator Jay Rockefeller (who was shut out of the deal-making) warned:

Changes to the bill have been frustrating, Sen. Jay Rockefeller (D-W.V.) told reporters at a press conference, particularly given that the Republicans — Mike Enzi of Wyoming, Chuck Grassley of Iowa and Olympia Snowe of Maine — are, in his opinion, just stalling for time.

“You just watch as the bill diminishes in its scope, in its coverage, in its ferocity to try to attack the problem. I don’t know where it will come out,” Rockefeller said. “My own personal view is that those three Republicans won’t be there to vote it out of committee when it comes right down to it, so that this all will have been a three-or-four-month delay game, which is exactly what the Republicans want.”

No Republicans stood with Senate Finance Committee Chairman Max Baucus last week as he finally unveiled what David Waldman described as “a plan that amounts to capitulating to every Republican demand, and then adding a heaping pile of political suicide on top of it.” The bill is in markup this week, and CA Berkeley WV has been blogging the Senate Finance Committee meetings for Congress Matters (day one, day two and day three).

Where does ranking Finance Committee member Grassley stand after Baucus bent over backwards to keep negotiating with him all summer? After the jump I’ve posted the relevant portion of a transcript from Grassley’s September 24 telephone news conference with Iowa reporters. The short version is, he’s against the bill because:

1. The individual mandate to buy health insurance amounts to “[q]uite a steep tax for people that maybe don’t pay a tax.”

2. Democrats supposedly were “not willing to go far enough” on enforcement to make sure illegal immigrants wouldn’t be covered.

3. Democrats supposedly “weren’t willing to go far enough to make sure that the subsidy through the tax credit was not used to finance abortions.”

4. You shouldn’t be “increasing taxes and cutting Medicare” when “we’re in depression.”

I told Iowa Republicans not to worry about Grassley voting for any health care reform bill. Senate Democrats should reject the concessions Baucus made to win GOP votes that are now off the table.

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Big change is coming on health care

I’ve been consistently worried that Barack Obama would not set an ambitious domestic policy agenda if elected president. His post-partisan rhetoric has given me the impression that he would move toward compromising with the Republican position on various issues before negotiations with Congress have begun. Specifically on health care, I agreed with Paul Krugman of the New York Times that Obama’s proposal was not as good as the plans John Edwards and Hillary Clinton advocated during the primaries.

Obama hasn’t been sworn in yet, and the new Congress won’t meet for more than a month, but already there are signs of growing momentum for truly universal health care reform (and not just incremental progress toward that goal).

On Wednesday Senator Max Baucus of Montana, who chairs the Finance Committee, released a “white paper” on health reform. You can get the gist by reading this diary by TomP or this one by DemFromCT. Ezra “Momma said wonk you out” Klein dived into the details in a series of posts this week.

The key point is that Baucus embraced the concept of mandatory health insurance, but with a public plan any American could choose to join. So, if private insurers kept jacking up premiums while covering less and less medical care, people could “vote with their feet” by paying into a public plan that would work like Medicare (the patient chooses the doctor).

This story explains Baucus’ line of thinking:

Baucus, of Montana, chairman of the Senate Finance Committee, said in a health-care blueprint released today that only a mandate could ensure people didn’t wait until they were ill to buy health insurance, forcing up the price for everyone.

The 89-page proposal revives a debate from the Democratic presidential primaries about how to overhaul the U.S. health- care system. Obama supported requiring coverage only for children, saying adults would buy coverage voluntarily if it were affordable. Senator Hillary Clinton of New York said insurance must be mandated for everyone.

“Requiring all Americans to have health coverage will help end the shifting of costs of the uninsured to the insured,” Baucus said today in his plan. The requirement “would be enforced possibly through the U.S. tax system or some other point of contact between individuals and the government,” he said, without spelling out possible penalties. […]

Because of the urgency of health-care reform, Congress should move on legislation in the first half of next year, Baucus said at a press conference today in Washington.

“There is no way to solve America’s economic problems without solving health care,” he said. The $2.2 trillion health-care system “sucks up 16 percent of our economy and is still growing,” Baucus said.

It’s hard to exaggerate the significance of this development. First, as many others have noted, if Baucus runs health care reform through the Finance Committee there is a good chance it will be the kind of bill not subject to a filibuster. That means the Democrats would need only 50 votes (not 60) to pass it in the Senate.

Second, Baucus is among the more conservative members of the Senate Democratic caucus (check out his Progressive Punch ratings here). If he is ready for big, bold health care reform, the ground has shifted.

Third, this development could be very discouraging for Iowa’s own Senator Chuck Grassley, the ranking Republican on the Finance Committee. Traditionally, Grassley and Baucus have had a close working relationship. But this past summer Grassley was annoyed when Democrats rejected a deal he thought he had cut with Baucus on a Medicare bill, and Baucus denied having reached any prior agreement with Grassley.

This report from Wednesday quotes Grassley expressing skepticism about finding the money to pay for a big health care initiative.

If Baucus moves away from the habit of compromising with Grassley now that the Democrats will have a solid Senate majority, could Iowa’s senior senator decide to step down in 2010? We all know that Grassley’s seat is safe for Republicans unless he retires. He seems to like his job, but perhaps facing defeat after defeat in a Democratic-controlled Congress would diminish his desire to hang around for another six years.  

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