Prior to Tuesday’s arguments before the Supreme Court, I believed that the Court would uphold the health insurance purchase mandate by a comfortable margin. Unlike the Rehnquist Court, the Roberts Court has not made federalism a signature issue, and justices such as Antonin Scalia seemed amenable to the exercise of federal powers consistent with commerce clause precedents. My reasoning, discussed in my earlier blog posting, was that the health care market is the most encompassing national commercial market in America, consuming some 17% of GDP, and with pharmaceuticals, medical equipment, electronic medical records, and insurance claims all moving widely across the nation. The Court’s precedents all pointed toward a broad scope for the commerce authority.
Having heard the arguments on Tuesday, I now believe that health care reform hangs in the balance. Although the tenor of the arguments cannot necessarily predict the result, the Court’s conservative bloc expressed skepticism about the constitutionality of the mandate. Justice Kennedy, often the pivotal vote in close cases, expressed the view that the mandate fundamentally changed the relationship between the individual and the state. Health care reform does do that, but only in the best possible way: by creating a social contract whereby everyone is entitled to access affordable care. And the Affordable Care Act (ACA) establishes this social contract in a way that is in my view clearly constitutional. Read More
Florida v. HHS – a suit brought on behalf of 26 states challenging the constitutionality of the Affordable Care Act (ACA) – represents a rare moment in America’s history. The Supreme Court will determine whether the United States coalesces behind an historical health system reform providing near-universal coverage, or retreats from it.
Although Florida v. HHS raises four constitutional questions – the individual purchase mandate, Medicaid expansion, severability, and the Anti-Injunction Act – undoubtedly the mandate presents the most novel and consequential issue, with constitutional and social policy implications that are far reaching. Why is the constitutional question so original and meaningful in understanding the scope of Congress’ powers? Why is the social policy question indispensable to the future of health care reform? And what is the inter-play between the constitutional and social policy questions?
Novel Constitutional Questions
Integral to the ACA’s conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional. Read More
On Feb. 17th, in an extremely shortsighted move, Congress voted to cut $5 billion from the Affordable Care Act’s health prevention fund to offset the cost of delaying (by 10-months) scheduled cuts to Medicare physician payments, known colloquially as the “doc fix.” This represents a one-third reduction in the fund’s current budget. The prevention fund, which has been lauded as one of the most important contributions to the advancement of public health, began with $500 million in 2010 and was scheduled to reach $2 billion by 2014. Now, the prevention fund will not reach $2 billion until 2022, at the earliest. The Secretary of Health and Human Services may transfer money from the fund to any program authorized by the Public Health Service Act for “prevention, wellness, and public health activities including prevention research and health screenings, such as the Community Transformation grant program, the Education and Outreach Campaign for Preventive Benefits, and immunization programs.”
This decision was penny wise and pound foolish. Chronic diseases, which many of the fund’s programs target, cause approximately 80% of deaths in the United States and account for 75% of the nation’s health spending. If we have any hope of bending the cost curve, we must take prevention seriously and spend accordingly. Annual spending related to type 2 diabetes, a mostly preventable disease, is expected to reach $336 billion by 2034 up from $113 billion in 2009. At the same time, a mere 3 percent of national health expenditures in 2009 went to “government public health activities.” Read More
Posted in Health reform;
In response to the second anniversary of Haiti’s January 12, 2010 earthquake, this post is the fourth and final in a four-part series examining the implications of ongoing efforts to establish U.N. accountability for allegedly causing Haiti’s deadly cholera epidemic in the months following the events of January 12, 2010. This post was authored by O’Neill Institute Research Associate, J.P. Shuster, with support from O’Neill Institute Law Fellow, Ana Ayala.
Concern for the outbreak of cholera in Haiti, which has now killed 7,001 Haitians and infected over 522,000 others since it began in late October of 2010, reached the U.S. Congress late last month. Members of the Congressional Black Caucus, including Representatives Barbara Lee (D-CA), Yvette Clarke (D-NY) and Donald Payne (D-NJ), as well as a collective of concerned non-governmental organizations, known as the Haiti Advocacy Working Group (HAWG), sponsored a briefing entitled “Health and Cholera” in conjunction with the second anniversary of Haiti’s devastating 7.0-magnitude earthquake on January 12, 2010. Panelists at the briefing included Ambassador Eric Goosby, the U.S. Global AIDS Coordinator; Dr. Jon Andrus, the Deputy Director of the Pan American Health Organization (PAHO); Dr. Jordan W. Tappero, Director of the Health Systems Reconstruction Office at the Centers for Disease Control and Prevention (CDC); Dr. Ralph Ternier, the Director of Community Health at Zanmi Lasante (ZL); the Haitian sister organization of Partners in Health (PIH); and Dr. Mark Weisbrot, the co-director of the Center for Economic and Policy Research (CEPR). Read More
In response to the second anniversary of Haiti’s January 12, 2010 earthquake, this post is the third in a four-part series examining the implications of ongoing efforts to establish U.N. accountability for allegedly causing Haiti’s deadly cholera epidemic in the months following the events of January 12, 2010. This post was authored by O’Neill Institute Research Associate, J.P. Shuster, with support from O’Neill Institute Law Fellow, Ana Ayala.
The second anniversary of Haiti’s devastating 7.0-magnitude earthquake passed earlier this month, perhaps expectedly, without it receiving a fraction of the global media attention and international support that accompanied the sufferings experienced on January 12, 2010. Yet the aftermath of that traumatic event and the harrowing days that followed remain a reality for Haitians. Included in the litany of those miseries is an ongoing cholera epidemic that started just ten months after the earthquake. The epidemic has now killed nearly 7,000 people, infected 520,000 others and continues to cause 200 infections per day. What is more, multiple scientific investigations have demonstrated that U.N. peacekeepers with MINUSTAH, the peacekeeping mission in Haiti, likely exposed Haitians to the water-born illness inadvertently via negligent maintenance of sewerage facilities at a Nepalese camp. Based on that evidence, a Haitian non-governmental organization, the Bureau des Avocats Internationaux (BAI), and its U.S. partner, the Institute for Justice and Democracy in Haiti (IJDH), filed on November 3, 2011, a petition with the Claims Unit of the Office of the United Nations Secretary-General in Haiti on behalf of 5,000 victims of cholera and their families. Yet the U.N. has refused to accept responsibility for transporting the disease to Haiti or provide compensation to victims of the epidemic.
This series has primarily considered the problem of U.N. accountability for the international spread of disease. Part I of this series explored the mounting evidence against the U.N. that suggests the international body negligently, if unintentionally, transported cholera to Haiti through infected Nepalese peacekeeping personnel. Part II of this series took a close look at the immunity provisions that could pose a major challenge to Haiti’s cholera victims from obtaining effective judicial relief from the U.N. Read More
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.