Don’t celebrate yet
Between the courts and the Senate, there’s much to fear on reform
Notes on the news:
Healthcare reform proponents were gleeful about last week’s federal appeals court decision upholding the Patient Protection and Affordable Care Act. Given current conditions, they should hold off on popping the Champagne corks.
In its decision, a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati rejected challenges to the act from a conservative law group. The plaintiffs pushed the familiar argument about Congress lacking power to force people to buy insurance and that the law was an illegitimate use of authority to regulate interstate commerce.
“The act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader healthcare market,” wrote appellate Judge Boyce Martin Jr. in the court’s decision.
This was the first appellate decision on numerous challenges filed by conservatives. Litigation is pending before federal appeals courts in Washington, Atlanta and Richmond, Va. They may reach different conclusions.
Reform advocates took comfort in that the 6th Circuit decision included a concurring opinion from Judge Jeffrey Sutton, a George W. Bush appointee. He was the first judge to break the prevailing formula of Democrats upholding the individual mandate and Republicans rejecting it. Advocates also noted that Sutton once served as a law clerk for Supreme Court Justice Antonin Scalia. That’s important because the legal challenges almost certainly will be decided by the high court.
That’s why reform proponents shouldn’t turn irrationally exuberant. Until recently, the vast majority of constitutional lawyers would have said that Congress holds broad authority to regulate matters affecting commerce. There is a long line of cases to that effect, some cited in the 6th Circuit decision. But the Supreme Court has become highly ideological. The precedent-busting 2010 Citizens United case on campaign finance, which opened the floodgates to corporate cash, is the most prominent example of the court’s creative legal writing. Keep the Champagne on hold. Speaking of reform, let’s consider the curious case of Sen. Joseph Lieberman, an independent from Connecticut or possibly another planet. He introduced a bill last week to raise the Medicare eligibility age to 67 and thus “save” the program. His plan supposedly would save about $600 billion over 10 years and provide a temporary fix to Medicare’s dysfunctional physician payment formula, among other things.
Lieberman appears to be terminally dyspeptic, upset with his former Democratic colleagues and acting like a political version of the “Mayhem” character in the insurance commercials. Not long ago, he favored lowering the Medicare eligibility age by allowing people from 55 to 64 to buy into the program. That proposal had advantages: Middle-aged people who might have trouble getting insurance would be covered, and they would pour new revenue into the system.
But when this idea was considered as part of the Democratic healthcare reform package, Lieberman flip-flopped and torpedoed the proposal. That’s possible in the Senate, where any member can singlehandedly bring the machinery of government to a halt. We should also mention that Lieberman’s latest plan is co-sponsored by Sen. Tom Coburn (R-Okla.), another legislative pioneer who likes to throw wrenches around.
There are reform law provisions that would cut costs without punishing seniors, who won’t be courted by insurers. That’s why Medicare was instituted. If they could get coverage, it would be at a very high cost.
Lieberman’s plan is unfair. It may be satisfying to the senator’s ego, but ordinary citizens won’t like it.