Health Care Bill Could Face String of Legal Challenges

Organizations and lawmakers opposed to the health care reform package are getting their legal briefs in a bunch, threatening to challenge the constitutionality of the sweeping overhaul should it make its way to President Obama's desk.

Republicans have agreed to allow the Democratic-led Senate to move up the time for a final vote to 8 a.m. Thursday so that lawmakers and their staff can go home for Christmas. But GOP supporters aren't backing down on their threats to put a stop to the legislation using whatever legal means possible.

Two key issues seem to be attracting the bulk of the legal threats: a mandate for individuals to purchase health insurance and the special treatment that states like Nebraska are getting in the bill.

On the first issue, Sen. John Ensign, R-Nev., on Tuesday renewed the call to examine the constitutionality of whether the federal government can require Americans to purchase a product.

"I don't believe Congress has the legal or moral authority to force this mandate on its citizens," Ensign said in a statement, raising what's known as a "constitutional point of order." Such procedural challenges are rare and typically lead to a vote.

The non-profit Fund for Personal Liberty, as well as a Virginia-based group called the 10th Amendment Foundation, already have threatened to file suit in federal court over this issue if the health care bill passes.

The Constitution allows Congress to tax, borrow, spend, declare war, raise an army and regulate commerce, among other things. Proponents of the insurance mandate point to the Commerce Clause in arguing that Congress is within its rights to require health insurance and dismiss such potential legal challenges.

But foes say the across-the-board requirement is too broad.

"I personally do not believe the Congress has the authority to enact an individual mandate requiring a person to purchase a product from a private seller," said Kent Masterson Brown, lead counsel with The Fund for Personal Liberty. "I don't think the power is there. This is not regulating anything."

He said his group would be joined by the Washington Legal Foundation in filing suit against the health care bill.

"This thing may be stillborn, even if it passes," he said.

Even though Obama argues that the mandate is similar to laws requiring drivers to obtain auto insurance, opponents cite several key differences. First, the auto insurance mandate is avoidable, since anyone who doesn't want to pay doesn't have to drive. Second, auto insurance is mandated in large part so that drivers carry liability insurance to cover damages to other people and cars -- not themselves. Third, auto insurance regulation occurs at the state level.

When the Congressional Budget Office considered the idea of a health insurance mandate back in 1994 under the Clinton administration, it concluded that the mandate would be "an unprecedented form of federal action." The only congressional mandate close to that was the draft, the CBO concluded.

Ensign cited that finding in his complaint.

Still, the legislation does provide for federal subsidies for those who might have trouble affording insurance coverage, and it provides for exemptions for some individuals.

Other legal objections are emerging in the wake of a concession that Sen. Ben Nelson, D-Neb., won for his state as a condition for his support of the health care bill. Senate Majority Leader Harry Reid agreed to provide for full and permanent federal aid for Nebraska's expanded Medicaid population. It was only one of a slew of hand-crafted sweetheart deals for those senators who agreed to support the bill.

But the Nelson deal swiftly drew the ire of Sen. Lindsey Graham, R-S.C., who has asked his state's attorney general to give the issue a legal review. He told Fox News on Tuesday that other states can probably bring a "constitutional challenge" over the issue. He said it's unfair for one state to get special treatment while others pick up the tab.

"I don't believe most senators believe this is OK," Graham said. "I think it stinks. I think it's sleazy."

Graham said his state could file an equal rights suit under the Constitution. The Constitution calls for "equal protection" of all citizens.

Likewise, two Republican state representatives from Tennessee on Monday asked their state attorney general to look into the issue -- they called the Medicaid expansion an "unfunded mandate."

Rep. Debra Young Maggart and Rep. Susan Lynn claimed the Nebraska deal was unfair to other states and asked that Attorney General Robert Cooper take "appropriate legal action" against the federal government if the bill becomes law.

"It is clear by the wording of the legislation itself that not every state would face a similar and equal burden," they wrote. "We see this as a violation of equal protection of the law, an affront to our sovereignty, and a breach of the U.S. Constitution."

The non-profit Liberty Legal Institute is poised to assist states that are considering filing suit against the government over the health care bill. The group would not disclose where the suits might come from, but claimed great interest in putting health care reform to the legal test.

"There are a lot of states that are concerned that this violated the 10th Amendment and they are weighing their options," Kelly Shackelford, chief counsel, said in a statement.

The 10th Amendment declares that powers not delegated to the United States by the Constitution are "reserved" for the states or "the people."

Still another challenge is coming from Sen. Jim DeMint, R-S.C., who on the Senate floor raised concerns about a section in the health care bill that appears to say that the Senate cannot make changes to it in the future.

"It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection," the section says.

DeMint said he found that "particularly troubling."

"We will be passing a new law and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law," DeMint said. "I'm not even sure that it's constitutional."

The overall section the senator referred to applied to the creation of an Independent Medicare Advisory Board.

But a senior Reid aide noted that the language restricting the repeal of the measure only applied to one subsection -- a subsection dealing with the manner in which the proposal for the board is introduced and considered in Congress. The aide said the language DeMint found "troubling" did not apply to board or its duties as a whole.

Plus the aide noted that the language can be waived by a 60-vote majority in the Senate.

"It's really a sign of desperation," the aide said.

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Send the ACLU a CHRISTmas Card

A couple days ago I got this fwd and thought it quite a "clever"! I'm sure it has been circulated before but had to share in case there are those out there that haven't seen it.

...................................................................................................................................................
Christmas cards. This message is coming early so that you can get ready to
include an important address to your list.

Want to have some fun this CHRISTMAS? Send the ACLU a CHRISTMAS CARD this
year.

As they are working so very hard to get rid of the CHRISTMAS part of this
holiday, we should all send them a nice, CHRISTIAN card to brighten up their dark, sad, little world..

Make sure it says "Merry Christmas" on it.

Here's the address, just don't be rude or crude. (It's not the
Christian way, you know.)

ACLU
125 Broad Street
18th Floor
New York , NY 10004

Two tons of Christmas cards would freeze their operations because they
wouldn't know if any were regular mail containing contributions. So spend
44 cents and tell the ACLU to leave Christmas alone. Also tell them that
there is no such thing as a " Holiday Tree". . . It's always been called a
CHRISTMAS TREE!

And pass this on to your email lists. We really want to communicate with the
ACLU! They really DESERVE us!!

For those of you who aren't aware of them, the ACLU, (the American Civil
Liberties Union) is the one suing the U.S. Government to take God, Christmas
or anything Christian away from us. They represent the atheists and others
in this war. Help put Christ back in Christmas!

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Dean of Harvard Medical School Gives Health 'Reform' a Failing Grade

The changes proposed by Congress will require more draconian measures down the road. Just look at Massachusetts.

By JEFFREY S. FLIER




As the dean of Harvard Medical School I am frequently asked to comment on the health-reform debate. I'd give it a failing grade.

Instead of forthrightly dealing with the fundamental problems, discussion is dominated by rival factions struggling to enact or defeat President Barack Obama's agenda. The rhetoric on both sides is exaggerated and often deceptive. Those of us for whom the central issue is health—not politics—have been left in the lurch. And as controversy heads toward a conclusion in Washington, it appears that the people who favor the legislation are engaged in collective denial.

Our health-care system suffers from problems of cost, access and quality, and needs major reform. Tax policy drives employment-based insurance; this begets overinsurance and drives costs upward while creating inequities for the unemployed and self-employed. A regulatory morass limits innovation. And deep flaws in Medicare and Medicaid drive spending without optimizing care.

Speeches and news reports can lead you to believe that proposed congressional legislation would tackle the problems of cost, access and quality. But that's not true. The various bills do deal with access by expanding Medicaid and mandating subsidized insurance at substantial cost—and thus addresses an important social goal. However, there are no provisions to substantively control the growth of costs or raise the quality of care. So the overall effort will fail to qualify as reform.


In discussions with dozens of health-care leaders and economists, I find near unanimity of opinion that, whatever its shape, the final legislation that will emerge from Congress will markedly accelerate national health-care spending rather than restrain it. Likewise, nearly all agree that the legislation would do little or nothing to improve quality or change health-care's dysfunctional delivery system. The system we have now promotes fragmented care and makes it more difficult than it should be to assess outcomes and patient satisfaction. The true costs of health care are disguised, competition based on price and quality are almost impossible, and patients lose their ability to be the ultimate judges of value.

Worse, currently proposed federal legislation would undermine any potential for real innovation in insurance and the provision of care. It would do so by overregulating the health-care system in the service of special interests such as insurance companies, hospitals, professional organizations and pharmaceutical companies, rather than the patients who should be our primary concern.

In effect, while the legislation would enhance access to insurance, the trade-off would be an accelerated crisis of health-care costs and perpetuation of the current dysfunctional system—now with many more participants. This will make an eventual solution even more difficult. Ultimately, our capacity to innovate and develop new therapies would suffer most of all.

There are important lessons to be learned from recent experience with reform in Massachusetts. Here, insurance mandates similar to those proposed in the federal legislation succeeded in expanding coverage but—despite initial predictions—increased total spending.

A "Special Commission on the Health Care Payment System" recently declared that the Massachusetts health-care payment system must be changed over the next five years, most likely to one involving "capitated" payments instead of the traditional fee-for-service system. Capitation means that newly created organizations of physicians and other health-care providers will be given limited dollars per patient for all of their care, allowing for shared savings if spending is below the targets. Unfortunately, the details of this massive change—necessitated by skyrocketing costs and a desire to improve quality—are completely unspecified by the commission, although a new Massachusetts state bureaucracy clearly will be required.

Yet it's entirely unclear how such unspecified changes would impact physician practices and compensation, hospital organizations and their capacity to invest, and the ability of patients to receive the kind and quality of care they desire. Similar challenges would eventually confront the entire country on a more explosive scale if the current legislation becomes law.

Selling an uncertain and potentially unwelcome outcome such as this to the public would be a challenging task. It is easier to assert, confidently but disingenuously, that decreased costs and enhanced quality would result from the current legislation.

So the majority of our representatives may congratulate themselves on reducing the number of uninsured, while quietly understanding this can only be the first step of a multiyear process to more drastically change the organization and funding of health care in America. I have met many people for whom this strategy is conscious and explicit.

We should not be making public policy in such a crucial area by keeping the electorate ignorant of the actual road ahead.

Dr. Flier is dean of the Harvard Medical School.

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