Obama Care and The Big “If” – Severability - Interpreting Tea Leaves and Roberts Role in Writing the Majority Opinion. Commentary and Opinion

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Act, there are only two options available: If one believes the Constitution to be fluid and living document that is outdated and therefore easily manipulated to fit the era, then the Bill would stand.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.

Live on C-Span, Obama Health Summit – Options Abound, Will Party Politics Trump the Needs of the Public?

Will the President Set Aside Ego and Party Politics for the Public? Obama Health Care Plan Logo - image "thisainthell blog

The Presidents Health Care Forum will be broadcast on C-Span today beginning at 10 AM. One can watch the proceedings online at C-Span.org/Topics/Health-Care-Lesigslation-Town-Hall. The forum, designed to be a show of bi-partisanship, will showcase the Presidents Health Care Plan, a copy of which has been available at Whitehouse.gov/health-care-meeting/proposal for the past week is an outline, with pdf downloads available showing “key highlights” of what Obama envisions for the Public. C-Span has both the House and Senate versions, with a comparative analysis by the Kaiser Foundation here at-C-Span.org/Topics/Health-Care-Lesigslation-Town-Hall. All three proposals include hefty increases in taxes – they have kept the CBO busy trying to calculate the scale of the costs of each proposal - in the instance of the President’s plan, there is, apparently, no way to actually project the expenditures.

The clash will come from Party politics, in part, because Conservative Republican’s have been kept out of all meetings, in both houses, to date. It is not so much that Republican’s do not have solutions; it is that their solutions do not include 10,000 pages of entitlements, jargon and impending government bureaucracy. Due to the simple nature of the cost savings measures proposed by Republican lawmakers, Democrats who thrive on government spending, have, to date, refused to listen and have dismissed solid ideas out-of-hand. One of which is to start-from scratch, to work on a true bi-partisan measure – something the President is loath to do. It would, in essence, be a further delay in passing legislation on health care. More likely, it would no longer be the “Presidents” plan, which, either through arrogance or ignorance is preferred.

Would it not be better to take Health Care Reform back to the drawing table, listen to ideas from all sides, and come up with a program that would benefit the public, without breaking the bank? There are options available that would cut costs – and they come from both the public and private sector – yet, no-one can cut through the haze of self-important party politics long enough to get anything done. The later, in this case, may not be a bad idea.

Some stunningly simple examples of how to control costs come from both sides of the aisle, and should be considered and implemented – a pared down approach that would expand coverage, and decrease costs. Hillary Clinton’s plan, as explained during an interview with Bill O’Reilly of Fox News, would expand the coverage currently offered to the members of Congress, as well as those civilian employees and retirees that work for the government to the general public. During the Town Hall Meetings, Representative Nikki Tsongas was asked why she would be exempt from the plan proposed by Congress and be allowed to maintain her current coverage, the same coverage Hillary Clinton would extended to Americans in general (article with Clinton’s interview and plan here )to which the representative replied that she had a wide range of options. Exactly Clinton’s point – in fact if that coverage were made available to the general public as an option it would have the effect of widening the risk pool and driving pricing down further. (So much for super-delegates.)

Republican proposals include simple tort reform (which will limit mal-practice awards, some of which are ridiculously high, which will lower physician’s costs, ultimately passing savings down to the consumer), and allowing carriers to sell policies across state lines (which will increase competition and again, drive down costs to the consumer).

An op-ed in the Orange Country Register written by George Patos, a former deputy undersecretary of Commerce, former general counsel to the Self-Insurance Institute of America and current Executive Director, Healthcare Performance Management Institute suggests the putting technology to use so that companies can better streamline health care costs and take better control over their health care expenses. Mr. Patos’ full article is available here at www.ocregister.com/opinion/health-255811-care-companies

It is not for lack of better ideas, rather unwillingness on the part of the administration and the majority in Congress to accept ideas that are at once simple and will actually work, without increasing the deficit. This schoolyard mentality that has evaded Washington politics for far too long is to benefit a Political Party, not the public. It has not gone unnoticed. Current polling on Congressional job approval has dropped to a stunning 10%, 51% of American’s actually Fear the federal government more than insurance companies and a CBS News Poll reports that 55% of American’s disapprove of the Presidents handling of the Health Care Reform Issue. One would think that a true show of bi-partisanship from both parties on this issue, taking it back to the table with all plans laid out and choosing the most cost-effective, viable pieces from contributions both public and private, would best serve the public. If it took a year or more to get this most important legislation passed and get it right, so that any reform has almost full public support, it would be worth the time and trouble. It would also, possibly save a few jobs in Congress. That said it is doubtful that today’s summit will be nothing more than a show of party politics, pitting us and against them, in that ever mind-numbing “Shining city on the Hill”.