Thursday, December 16, 2010

Roundup of coverage of today's hearing

The general consensus appears to be that Judge Vinson (N.D. Fla.) will rule that the individual mandate is unconstitutional, but will rule against the plaintiffs on their Medicaid claim.  According to The Wall Street Journal, Judge Vinson “signaled he saw the requirement as unprecedented and a potential imposition on Americans' individual liberties.”  Judge Vinson stated: "It would be a giant leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity." 

According to Politico, Judge Vinson asked whether, assuming the federal government does in fact possess the power to require its citizens to purchase health insurance, it would, in turn possess the power to "mandate [that] everybody has to buy a certain amount of broccoli?”  The Justice Department argued that unlike other products, such as cars or broccoli, “Health insurance is a product that is a financing mechanism."  Justice argued that the minimum coverage provision “is Congress’s effort to [encourage people] to pay for health care needs today through insurance and not out-of-pocket.”  Justice argued that because it is almost inevitable that at some point, everyone will access the health care system, the government should be able to regulate that decision, as a means of avoiding the costs being “externalized.”  Judge Vinson seemed to indicate that he was not persuaded by this argument.  The Wall Street Journal reports that Vinson provided an anecdote from his personal life: that as an uninsured law student, he paid the for the hospital bills related to his son’s birth out-of-pocket.

What is perhaps most interesting is how Judge Vinson addressed the severability issue.  While he clearly indicated skepticism about the individual mandate’s constitutionality, he seemed equally aware of what severing it from the statute would do to the overall legislative scheme.  According to The Wall Street Journal, “Judge Vinson likened the law to a clock when taking one wheel away would prevent the whole from functioning.”  Obviously, removing the individual mandate would have major implications for the economic viability of some of the ACA’s major components, such as the requirement that insurers provide coverage for those with pre-existing conditions.  But, as Judge Vinson indicated, this difficulty is compounded by the parts of the law that have already gone into effect, further complicating the severability question.  Thus, the Judge asked, "How can you possibly undo some of these things?"

In regard to the plaintiffs’ Medicaid claim, Judge Vinson said: "It's possible for any state to withdraw from the Medicaid program."  This argument was bolstered because, as the Journal reports, two of the plaintiff states have in recent months threatened to leave Medicaid.