• Health Care and Constitutional Chaos

    As many of you know, I’m a frequent guest on Stand Up! with Pete Dominick on Sirius/XM radio. Another frequest guest, Prof. Eric Segall of Georgia State University College of Law, and I recently teamed up to write a paper on what might happen in the Supreme Court overturns the Affordable Care Act. It was published today by Stanford Law Review Online, it’s ungated, and you should go read it!


    • I’ll comment here, since SLRO lacks a quick comment feature.

      On Scalia & Raich – you are right that Scalia will write a new chapter of constitutional law, interpreting the word “proper” in the “necessary and proper” clause. But this didn’t come out of thin air – this is essentially Randy Barnett’s “commandeering the people” thesis. See http://ssrn.com/abstract=1680392. The tea party originalists are mighty creative.

    • I preface my comment by saying I am a big fan of the TIE, but the SLRO piece is basically a reargument of why the ACA is constitutional. What’s the value in that? Unfortunately, the time for that argument is over. Last day of oral arguments was in March. While I agree with your arguments, that doesn’t seem important anymore (except argumably for the court of public opinion in November and really that is about whether it is good policy, not it’s constitutionality).

      Seems that if the mandate is thrown out or if other provisions of Title I that compel state action are thrown out, many states will want to move ahead on their own. That raises interesting questions about what happens to state insurance reforms already adopted, what kind of mandates states may try to adopt and whether exchanges, even voluntary ones, will be viable. And what happens to red state policymakers 5 or 10 years from now when some of their constituents see neighbors in blue states with functioning exchanges and coverage?

      You assert but don’t go into the fact that the health sector is moving in the direction of reform and adapting to the delivery reforms outside of Title I. It would be interesting to think about whether there would be the political support for those to move separately or whether the private sector could advance the development of those?

      Anyway, those are some of the issues that this fan of TIE wishes were addressed.


      Lee Goldberg

      • Lee,

        What made Massachusetts’ reform work was (iirc) that a) the state had leftover money from a previous Medicaid demo that they had to reallocate, and b) their uninsurance rate was low, and c) it’s a pretty well off state.

        I’m not a state budget expert, but I don’t think that states can make it work on their own without the $$ from the Feds for subsidies – unless they want to pull a Vermont and roll everyone into single payer (which would still need Federal legislative authority, no?).

        Minnesota might be in a position to pull it off. They’re a productive state, and their uninsurance rate is low. However, their current legislature would oppose anything like that with maniacal fervor.

    • Kevin, just so you know, the Court didn’t seem interested at all in Randy’s “commandeering of the people” idea and no one thinks the Court will rule that way. And, as Ronald Dworkin has said, if the states can impose mandates, then so can the federal government on any issue that is national in scope–like health care.

    • Why continue to post the drivel about medical bankruptcies? As stated in the actual report, the median monthly household income was about $2,300 or so, and the median net worth for so-called “medical bankruptcies” was ($44,622) and the median net worth for “non-medical bankruptcies” was ($37,650).

      The authors defined a medical bankruptcy in a very interesting fashion:
      – 29% of the time, they simply accepted the statement of the surveyed individual,
      – 34.7% of the time, the survey subject either had unpaid medical debts discharged in bankruptcy that exceeded $5,000 or they exceeded $10% of annual income (which would be $2,670 of unpaid medical bills for an individual at the median income),
      – 45% were deemed to be “medical bankruptcies” because they lost more than two weeks of pay due to their own absence or that of a spouse or other family member.
      (percentages don’t add to 100 because multiple reasons were permitted).

      The study confirmed that medical bankruptcy court records identified average debts owed directly to doctors and hospitals at a mean of $4,988 (remembering of course, that averages can be highly deceiving).

      So, let me get this straight, the study claims that an individual with a median indebtedness discharged in bankruptcy of $44,622 would have not entered into bankruptcy had they had $0 of medical debt, and a new median indebtedness of ~ $39,600 ($44,622 – $4,988)?

      My lawyer brother, who sometimes does bankruptcy actions, confirms to me that, immediately prior to bankruptcy, people tend to not only stop paying physicians and hospitals, but to also obtain any elective services.

      What the authors should have analyzed, of course, would be a comparison of this group of so-called “medical bankruptcies” against the universe of other Americans who have $4,988 or $2,670, or whatever threshold of medical debt, but who somehow did not declare bankruptcy.