The United States Supreme Court - Image: NaitonalJournal.com
From the beginning of the passage of the Health Care and Education Affordability Reconciliation Act of 2010 has been problematic – politically and logistically. Written in what amounts to a biblical tome format, the Act to Overall America’s Health Care to a “State Controlled” system brought about a schism in the population in 2010 that was not anticipated by either major political party. The Tea Party, focus on taxes, turned to focus on the Legislation known as “Obama’s Signature Legislation” or, in other words, the only thing that the President has accomplished, of note, in his term to date. Today, the Supreme Court will be ruling on the constitutionality of the Act, and, as such, there is much speculation as to how that ruling should or may come down.
The man at the center of the all the focus is one Chief Justice John Roberts – who is rumored to be writing the Majority Opinion. Forbes suggests that the Court is likely to partially overturn Obama Care, however, as to the actual Health Care Act, there are only two options available: If one believes the Constitution to be fluid and living document that is outdated and therefore easily manipulated to fit the era, then the Bill would stand. However, if the majority are strict constructionists, believing that the Constitution is to be interpreted as written – the Bill falls. The Bill falls, not in part, but in total due to one glaring mistake made by the House and the Senate in their rush to push this Bill to Obama’s desk for signature – they failed to include a severability clause.
There is without doubt speculation as to why this may have occurred, that if the Bill were to be challenged and then struck down, it would allow for the Administration and chief architects to rewrite and rebuild, which makes little to no sense, given the volatility of American politics and the obvious opportunity to win or lose elections based on the mood of the nation. In other words, Obama had one shot, and one shot only at getting his legislation passed. He now has one shot, and one shot only at seeing it either stand in total and or fall completely. From this opinion, the fact that the federal mandate included in the bill, forcing individuals to purchase an item (health care), would be in violation of the Commerce Clause. This is the primary case which has been brought by multiple states to the highest court – the fact that the law, as written in unconstitutional.
The further fact that there is no “safety net” or severability clause included in the act, suggests that should the mandate fail to meet the test of Constitutionality, then the balance of the Act would, by association, or the inability to disassociate, (lack of severability), fall as well.
Roberts, who is a strict Constructionist in the role of writing the majority opinion, yet this offers no clue as to which way the majority ruled on said Health Care Act. Precisely because he has noted he would write the opinion regardless of the ruling. There is some basic math to suggest, however, that the ruling will not be in favor of maintaining the law given the make-up of the court.
The Courtin current makeup: Roberts, Chief Justice (Strict Constructionist), Antonin Scalia, (Strict Constructionist), Anthony M. Kennedy (Undetermined), Clarence Thomas (Strict Constructionist), Ruth Bader Ginsburg (Legislate Not Interpret), Stephen G. Breyer (Legislate Not Interpret), Samuel Anthony Alito (Strict Constructionist), Elena Kagan (Legislate Not Interpret), Sonia M. Sotamayor (Undetermined). Therefore, there are 4 that would interpret the Constitution as it stands, there are 3 that would certainly re-write the entire Constitution given the chance, and then there are two that have written opinions that are contrary to one or the other stated points of view. The later are the “wild cards” of the Court.
In any event, the law, as written will be adjudicated today by the Highest Court in the Land, without political motivation (for those non-legislating justifies), however, it is this opinion that there can only be two Constitutionally correct outcomes, given the fact that there is, again, a lack of severability – the Bill will either be struck down in its entirety or held valid in its entirety. To rule “in part”, makes no sense if one is a Strict Constructionist. On the flip side, if it is ruled “in part”, in any shape of form, then it will be clear that Robert’s Majority Opinion, would indicate that the influence of those who would legislate and those that would, for lack of a better phrase, sit on the fence to render a decision that is equal to both sides, solving nothing, and being rather politically correct for both parties.
If the law is deemed unconstitutional, and without the severability clause, the entire law collapse, then it is the duty of the Congress and the Senate as they now sit, to re-write as quickly as possible, a sensible plan for the nation – one which might imitate yet another Massachusetts Insurance Model, that of the Auto Industry.
In extremely simple terms: Everyone in Massachusetts is required by law to own auto insurance – the State passed a law allowing Massachusetts residents greater access to multiple carriers rather than the original “few” that existed. The result: the costs went down significantly; individuals were given a wide range of plans to choose from, with varying levels of benefits, making the individual decision to purchase what they needed at a price they could afford.
In the same wise, Health Care could be adjudicated, open to competition across state lines, kicking the literally monopoly that certain carriers or quasi cooperatives (such as Blue Cross Blue Shield), have over individual states to the curb – mandating few benefits – those that are preventive care should stand, and offering a la cart, those current mandates that individuals could purchase as a “rider” to their policy – paying a higher or lower premium, depending upon need and finally, taking personal responsibility. As to Medicaid and Medicare – the Federal and State agencies could further mange the monolithic budget by instituting a program that vests the insured in their health care program through a rewards systems. This rewards systems has been in place in self-funded insurance plans, and works towards a reduction of fraud and reduction of premiums paid by both the employer and the employee. The gist: Employees (or recipients of benefits) monitor their health care bills, and report errors to the plan administrator, those individuals finding erroneous or fraudulent claims would then be eligible for a “reward”, either a percentage of the savings, or in the form of increased benefits (add a mandate from the menu.) Streamline, and simplified, a plan that allows everyone access, without fear of fine, and with the ability to control costs, for themselves, their employer and or even the State and/or Federal Government.
One final note: for those states who have instated some form of mandated state health plans, prior to Obama’s national model, would they not then, be compelled to look at the model they currently use, and compare their health care programs to their auto insurance programs and, perhaps, just perhaps, offer the aforementioned scenario to the consumers in their States, bringing more affordable health care coverage to all residents. Of course, this would have to pass muster with the individual carrier – cooperatives that have strangleholds on certain states, and serious lobbying power in the various Capitals.
No comments:
Post a Comment