Sunday, December 26, 2010

Obamacare Unconstitutional!

I begin this post a few thousand feet in the air, in the aisle seat in the rear of the aircraft. I suppose it is fitting that a gastroenterologist would be in the rear section. Fair is fair. Flying is a psychological test of one’s mettle. After enduring the security process, which is designed to find bad stuff instead of bad people, there are other layers of hassle to face. When I reached the cabin door, I was told that there was no available overhead space to store my bag. This development is often tolerable, as gate-checked bags are brought directly up to the arrival gate walkway after arrival, so you can avoid the hand-to-hand combat of the baggage claim arena. Not this time. For reasons, known but to the Almighty, my bag will be directed to the baggage claim, where I hope and pray that I will be properly reunited with it. Meanwhile, I will enjoy the luxury of an airline seat that would be quite comfortable for an average sized 4th grader. If the lady in front of me tilts her seat back, and my tray table is extended, then I will receive a Heimlich maneuver. Who knows? Maybe this could save my life if she leans back at the moment that the filet mignon I will be served gets trapped in my trachea.

Obamacare has hit an important judicial roadblock when Federal Judge Henry Hudson of Virgina ruled that the individual mandate was unconstitutional. Judge Hudson is the 3rd federal judge to rule on the constitutionality of the president’s health care plan. The first two judges gave the law a pass. Earlier today, oral arguments began in a Pensacola, Florida federal court before a judge who is suspected to harbor constitutional concerns of the health care plan. Already, 4 federal courts are involved, and it’s only 9 months since the law was signed. This is going to be a rocky road, and no one can predict the ultimate outcome. It is likely that the Supreme Court will ultimately have to reconcile various diverging views from lower Federal district and appellate courts. This emphasizes that a president who fills vacancies in the Supreme Court has a powerful tool to protect his policies against legislative threats and reversals.

Of course, courts are not supposed to make policy. They are charged to determine if an action or a law is lawful. Often, court decisions are criticized by folks who are not happy with the outcome, even though the legal issue before the judges may be arcane and not directly related to the actual issue. For example, the headline may read: “Judge Rules that Hospital May Withhold Chemo from Child with Cancer”, but the legal issue may be far removed from this emotional vignette. I’m not suggesting that judges rule in a robotic fashion without compassion or considering their own human experiences. I do feel, however, that it is not their role to depart from the law to provide extrajudicial remedies that should originate elsewhere. While the law does evolve, this is a gradual process that respects precedent and judicial restraint, at least in my view.

Is Obamacare constitutional? I have no idea. If a handful of wizened judges can’t agree, I don’t think that a mere colonoscopist in Cleveland should opine on the issue. Despite its legality, it remains a very unpopular law. Polling still shows that the majority of Americans would like the law totally or partially repealed, while 43% of us approve of the plan. This does not augur well for the president, since the tough medicine in his plan won’t appear for a number of years. Of course, Obama could dodge the fallout, which is inevitable if the law survives. He could be a ‘one termer’ and leave the angry mess to his successor. 

This is how the issue appears from 30,000 feet.  How does it look to you on the ground?


John said...

I suppose it is fitting that a gastroenterologist would be in the rear section.
Now that's funny, Dr. Kirsch! I hope the rest of the light was not too bad.

During the primaries I was a Hillary Clinton supporter for two reasons. First, I saw the Clinton/Obama choice as one between a rottweiler and a cocker spaniel and I felt the rottweiler would fare better in Washington. Second, his healthcare reform proposal did not include a mandate and hers did. It was clear to me that if everyone is not in the game there is no real risk sharing, just gambling in a different form.

I was wrong about the cocker spaniel part because this guy left the politically unpopular work (mandates) up to others. All of the various early proposals (of which there were some fifteen or so) included a mandate. No real risk pool works unless everyone at risk is included. Otherwise those not taking part get a free ride. It's the very core of risk management, insurance by definition.

As I said before, following the "Citizens United" ruling I will not be shocked at any decision of the Roberts Court. But in this case I think the insurance industry senses that without a mandate the parasites will eventually kill the host. (Never mind the premium dollars, including our tax dollars in the form of subsidies for those unable to afford insurance, resulting from the universal

All this prattling about rights and commerce is mainly a bunch of noise. Meantime a more immediate tug-o-war between insurance and HHS is in progress regarding insurance premium <a href=">MLR (Medical Loss Ratio)</a>.

John said...

Failed to complete the tag.
MLR (Medical Loss Ratio).

LeisureGuy said...

You're right (but incomplete) in saying that Affordable Care Act is (according to poll) disliked in general. But what you fail to mention is this interesting oddity: the provisions of the ACA are very popular. From TIME (

"... Polls consistently [show] that although Americans dislike the law overall, they like many of its components when asked about them individually. Polls also show that misconceptions are common. The AP survey, for instance, indicates that 65% of people believe the law will probably increase the federal deficit, despite estimates that it will reduce the federal debt by some $140 billion over 10 years."

utopia said...

Great article in the PD doc. So nice to see at least one doc speaking out! Where are all the rest?! All you docs should get together and put a stop to this nonsense.

I have Tobyphobia. His smokerphobia sodaphobia and fatsophobia scare me.

And I don't enjoy being stuck to the EMR fingerprint scaner>up to twelve attempts or more for one pill. Ugggg! Nursing is no fun and getting worse! Love ya doc. Godspeed.

BobbyG said...

This is priceless (PPACA, page 142):


No individual, company, business, nonprofit entity, or health insurance issuer offering group or individual health insurance coverage
shall be required to participate in any Federal health insurance program created under this Act (or any amendments made by this Act), or in any Federal health insurance program expanded by this Act (or any such amendments), and there shall be no penalty or fine imposed upon any such issuer for choosing not to participate in such programs.

While the Act contains "Individual Responsibility" (Sec 1501-02) and "Employer Responsibility" (Sec 1511-15) provisions ("mandates"), I'm not sure what the purpose of this Sec 1555 is -- other than explicitly permitting private carrier opt-outs for any proposed "public option".

Also interesting are the Congressional "Findings" [Sec 1501(a)(1&2)(A-H)] via which they lay out the utilitarian justification for the insurance mandates, after which they provide a SCOTUS "Commerce Clause" red herring case, United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944))

LeisureGuy said...

While it's true that 50% oppose the Affordable Care Act, 13% oppose it because it's not liberal enough (37% oppose it because it's too liberal), 43% support it, and 7% have no opinion.

So a total of 56% either support the ACA as it is, or want it more liberal.

The notion that people oppose it because it's too liberal does not coincide with reality.

More info here:

Anonymous said...

Common Sense

Impeccably Presented

Third News said...

It's interesting to look back at ACA discussions, and without bewraying my own details, I can see that insurance companies made a pack that conatively ignored the long-term profit of shareholders, and even the existence of their own industry.

This fugacious arrangement was a mutually beneficial blueprint but the 2014 vote may be the public's punishment; Ironically, I don't think the Republicans are capable of redhibition.

The only hope Obi-Wan Kenobi, is from physicians themselves -oddly, by reversing the model in which they sought financial stability with the introduction of the insurance industry.

Do physicians have the business acumen to take a temporary painful stand which would ultimately guarantee their economic control? I lean towards no.

The medical profession/practitioners would have to get use to eating crackers and peanuts -if you're lucky- and forgo filet Mignon.

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