Don’t cel­e­brate yet

Be­tween the courts and the Se­nate, there’s much to fear on re­form

Modern Healthcare - - Opinions Editorials - NEIL MCLAUGH­LIN Man­ag­ing Edi­tor

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.

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