The 2010 Patient Protection and Affordable Care Act required the Department of Health and Human Services to enlist the Institute of Medicine to examine pain as a public health problem. It’s estimated that 116 million Americans experience chronic pain, a condition that costs the nation up to $635 billion every year.”Given the large number of people who experience pain and the enormous cost in terms of both dollars and the suffering experienced by individuals and their families, it is clear that pain is a major public health problem in America,” the report’s writing committee chair Philip Pizzo, MD, from Stanford University in California, said in a news release.
The federal government keeps arguing that the individual mandate to purchase health insurance in last year’s health care law is constitutional because it’s a tax. Judges, even those who’ve ruled in favor of the mandate’s constitutionality, keep disagreeing with them. Every single one of the decisions related to the constitutionality of the mandate has affirmed that, despite the government’s arguments to the contrary, the mandate is not a tax—and therefore cannot be constitutionally justified by Congress’s taxing power.
Remember the much ballyhooed ObamaCare promise to “bend the health care cost curve down”?
Well, a new Congressional Budget Office report on the long-term trend in the federal budget finds that the costs of Medicare and Medicaid will drive federal spending and debt to all-time highs in coming decades. In one scenario, federal health-care spending doubles over the next 25 years, to 11% of GDP in 2035 from 5.6% this year. In another scenario, the debt eclipses 100% of GDP by 2021 and 190% of GDP by 2035. That’s higher than where Greece is right now, and we see what the bond vigilantes are doing there.
What is conspicuously missing from this report is the magical windfall from the new health law. CBO reports that it is “using the same growth rates that would have been applied in the absence of the legislation.” Now they tell us. Hence, Medicare alone is projected to nearly double over the next 25 years, from 3.7% of GDP to almost 7% by 2035.
On Wednesday, the Obama Administration won its first Court of Appeals battle over the constitutionality of the health care mandate. A divided three-judge panel of the Sixth Circuit held that Congress has the power to require individuals to purchase health insurance or pay a penalty. The result is obviously correct, for reasons I’ve explained elsewhere (see “Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform,” Yale Law Journal Online), and Judge Boyce Martin’s lead opinion is brief and elegantly reasoned. The other opinions, however, contained some strange claims about constitutional law.
Smoking Policies and Birth Outcomes: Estimates from a New Era by Sara Markowitz, E. Kathleen Adams, Patricia Dietz, Viji Kannan, Van Tong :: SSRNJune 30, 2011
Smoking during pregnancy has been shown to have significant adverse health effects for new born babies. Smoking is the leading preventable cause of low birth weight of infants who in turn, need more resources at delivery and are more likely to have related health problems in infancy and beyond. Despite these outcomes, many women still smoke during pregnancy. The main question for policy makers is whether tobacco control policies can influence maternal smoking and reduce adverse birth outcomes. We examine this question using data from the Pregnancy Risk Assessment Monitoring System data from 2000 to 2005. This is a time period during which states significantly changed their tobacco control policies by raising excise taxes and imposing strong restrictions on indoor smoking. We estimate reduced form models of birth weight and gestational weeks, focusing on the effects of taxes and workplace restrictions on smoking as the policies of interest. We also estimate demand equations for the probability of smoking during the third trimester. Results show that the smoking policies are effective, but limited to babies born to mothers of certain age groups. For babies born to teenage mothers, higher cigarette taxes are associated with small increases in birth weight and gestational weeks. For babies born to mothers ages 25-34, restrictions on smoking in the workplace are associated with small increases in gestational weeks.
Coverage of Infertility Treatment and Fertility Outcomes: Do Women Catch Up? by Matilde Pinto Machado, Anna Sanz-de-Galdeano :: SSRNJune 30, 2011
The ageing of first-time mothers and the changes in women’s labor market conditions have been accompanied by the introduction and subsequent increase in the use of assisted reproductive therapies (ART) that help extend women’s reproductive life. Considering the financial cost of infertility treatments, policy interventions that increase insurance coverage may significantly affect fertility trends, and ultimately, population age structures. However, policies have ignored the overall impact of ART coverage on fertility. In this paper, long-term effects of insurance coverage for infertility on the timing of first births and on total fertility rates are examined. Variation in the enactment of infertility insurance mandates over time and across U.S. states allows the estimation of both the short-term and long-term effects. We concentrate on the effects of the more demanding mandates enacted in six states in the later 80s and 90s. Our results show that the effect of these mandates to cover infertility treatment is positive on the average age at first birth and increases over time. The long-term estimates of the increase in age of first-time mothers range from 3 to 5 months. Importantly, we also show that these mandates do not increase the total fertility rates of women by the end of their reproductive lives.
Will Tax‐Based Health Insurance Reforms Help the Self‐Employed Stay in Business? by Tami Gurley-Calvez :: SSRNJune 30, 2011
The self‐employed face a tax‐induced disadvantage relative to wage and salary workers when it comes to the payment of health insurance premiums. This paper uses a panel of individual tax return data to test whether lower health insurance premium costs because of an expanded tax incentive result in longer periods of self‐employment. The results suggest that households claiming the deduction are indeed less likely to exit self‐employment. Equalizing the treatment of health insurance premiums for the self‐employed and wage workers by allowing full deductibility from Self‐Employment Contributions Act (SECA) taxes would result in a 7% decrease in the probability of exit.
- Keynote on the Expanding Use of NHA Internationally – Speaker TBA
- Key Features of SHA 2011
- SHA 2011 Pilot Studies
- Institutionalizing NHA – Development of a Global Strategic Action Plan
- Parallel Sessions
- Poster Session
A planning meeting for the next NHA Symposium will be held over an informal dinner in the evening.
On-line registration will remain open until midnight ADT on Monday July, 4, 2011. After that on-site registration (at increased rates will be available).
Constitutional Challenges to the Health Care Mandate: Based in Politics, Not Law by David Orentlicher :: SSRNJune 30, 2011
While critics of the individual mandate to purchase health care have mounted a vigorous attack on its constitutionality, Prof. Mark Hall skillfully dismantles their claims in his article in the University of Pennsylvania Law Review.
Mandate opponents have erected a Potemkin village of logic that has a facade of credibility but ultimately is deeply flawed. As Hall observes, one might reject the mandate on the basis of plausible readings of the constitutional text or in terms of 19th Century and early 20th Century Supreme Court opinions. However, critics cannot square their view with the Court’s understanding of constitutional doctrine and theory over the past 70 years.
In this response, I highlight important points in Hall’s analysis and extend his argument with additional considerations. For example, the individual mandate should be upheld not only on the basis of the Commerce Clause power, as Hall argues, but also on the basis of the taxing power.
If the constitutional arguments against the mandate are weak, how can we explain the unexpectedly high level of uncertainty about the mandate’s validity? The answer to this question lies in politics, not law.
In particular, there is good reason to think that public anger about the economy is being vented in the form of opposition to the healthcare legislation. In effect, the public may be saying that Congress should have been using its Commerce Clause power to improve the economy, not to reform the health care system. In this view, the decision by Congress to divert the Commerce Clause power to pass an individual mandate is a metaphor for Congress diverting its attention away from the economy. Once the economy recovers, public opposition to the health care law may well dissipate.
Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate by Gary Lawson, David Kopel :: SSRNJune 30, 2011
In “Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform,” Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law “necessary and proper for carrying into Execution” other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.
The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.
From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.
Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”
The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.
Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.