Is Requiring Health Insurance Unconstitutional?
NEAL CONAN, host:
Now, what's next for the health care law? Earlier this week, a federal judge ruled a key part of that law unconstitutional, the requirement that every American buy health insurance.
The White House insists the rollout remains on track. Two other judges previously upheld that same provision. And it's all expected to wind up before the Supreme Court. In the meantime, the ruling cheered conservatives, put Democrats on the defensive and raised questions about what this means now and down the road for health care.
NPR legal affairs correspondent Nina Totenberg and NPR health policy correspondent Julie Rovner join us here in Studio 3A.
If you have questions about the ruling and what it means: 800-989-8255. Email us: firstname.lastname@example.org. You can also send us questions on our website. That's at npr.org. Click on TALK OF THE NATION.
Nina Totenberg, the legal basis of this decision by Judge Henry Hudson is the Commerce Clause. Is that right?
NINA TOTENBERG: Yes. And he says that although the Commerce Clause of the Constitution gives the Congress broad power to regulate economics -economic questions that cross state lines, that Congress does not have the power to regulate inactivity - meaning, if you choose not to participate in this, you should be free to do so.
Now, I just want to say one thing here. This decision, in some ways, says as much about our profession as it does about health care policy. There are, as you said, two decisions already that have upheld the law. This is the first that said it's not constitutional. And in much the way that we saw at the time of the post-9/11 - various things that were challenged in court, and we would all go into a tizzy every time a judge struck down some single thing - most of which are still standing. I just want to observe.
We wrote about it ad nauseam. You saw it on the front page of the newspaper. But it is just a single judge, and there are other judges who have contrary decisions. And until the Supreme Court rules on it, we shouldn't get too far out on a limb.
CONAN: Julie Rovner, is that the reaction of the health care community?
JULIE ROVNER: It very much is. And, actually, the White House had a briefing for reporters last week to remind us that there have been some 20 cases, 12 of them got dismissed without ever getting to the merits. So they've been completely thrown out. And as Nina said, there have been two that did reach the merits, that found it constitutional. The other thing about this particular case that really cheered supporters of the law is that the judge, kind of surprisingly, didn't strike - not only didn't strike down the rest of the law, he didn't even strike down a lot of other things that really go with this individual requirement, including requiring insurers to sell to people - to adults with preexisting medical conditions.
So actually, the judge took an extraordinarily narrow view, only struck down that one provision. What the plaintiffs in this case had asked is that the judge strike down the entire law, which he rather pointedly refused to do.
CONAN: Yet, Nina, we've seen conservatives, Republicans cheering this decision and saying, here we go. This is the beginning of the end.
TOTENBERG: Well, it may be the beginning of the end. But I have to tell you, you know, I went into the legal blogosphere today. And while there may be lots and lots of law professors who think this law is very bad policy, there are precious few who think it's unconstitutional. You go to all the sort of classic sites where you're looking for people to say this is not constitutional, and you don't find a lot of that kind of opinion. So it's really - it was sort of interesting to me.
CONAN: I'm sure I did not delve in as deeply into the blogosphere as you did, but I did find some conservatives saying, wait a minute. We've just read Judge Hudson's ruling, and I think we made - he may have made some mistakes here.
TOTENBERG: There are a number of very notable conservatives who said that. And this is a little convoluted, but I'm going to try, in 30 seconds, to explain it.
Part of the Commerce Clause says that Congress may take any steps that are necessary and proper to enforce a national economy, in essence. And the courts, over the last hundred years, have interpreted that uniformly -the Supreme Court, anyway - to mean that you can go farther than what the Commerce Clause specifically says if you're trying to enforce the general powers of the Commerce Clause. So you could do things that are greater than what the Commerce Clause itself allows you to do.
And that's what people who defend this law say, is that insurance is one of those few areas where you have - everything - the kit is part of the caboodle. That if you - insurance requires lots of people to be part of it, otherwise nobody gets any protection and that that is sort of the essence of the idea here, and the mandate is part of that.
CONAN: And Julie Rovner, as you've explained to us repeatedly over the past several years, yes, indeed, kit, caboodle, one and the other. The law does not work or the policy does not work without the mandate that everybody be insured.
ROVNER: Although, interestingly, one of the other things that this ruling has done is it has started a conversation about how possibly this law could still work without the mandate. That maybe you could do something like what Medicare does, which Medicare part B, the doctor insurance is not - is voluntary. But what they do is that you must -well, if you're going to take it, you need to sign up when you first become age 65 or else you pay a large penalty for signing up later.
So they're saying maybe we would have just an open enrollment once a year. And if you don't sign up, then you would pay more later. So, basically, rather than stick, have the carrot. Perhaps, that would get everybody in.
CONAN: There is an email we have from Clint(ph), who writes the ruling against health care seemed to lack substance given that the federal income tax, of which the mandatory insurance is really a variety, has a long history as does mandatory car insurance. There seems to be a lot of things the government really makes us do. If we want to do...
CONAN: ...X we need to do B.
TOTENBERG: Well, one of the grounds the government is using to defend this statute is by saying, now, that it is in essence a tax. But the government - nobody made that argument when they were passing this, I guarantee you. And Judge Hudson didn't buy that. Him basically saying you didn't make the argument at the time when you enacted it, therefore it's too late.
ROVNER: And actually, the two judges in the other cases that upheld the individual mandate, they didn't buy the tax argument either.
(Soundbite of laughter)
ROVNER: They did too a good job saying this wasn't a tax at the time, to say it's a tax now.
CONAN: So they do listen to what the arguments were in Congress and other places as they're interpreting the law.
TOTENBERG: Well, most of them do. There are some judges who say, it doesn't matter what the purpose was. You know, Justice Scalia most famously doesn't believe that legislative history matters at all.
(Soundbite of laughter)
TOTENBERG: So, you know, it's just what the law says.
CONAN: What is next? Are there other cases pending, Nina?
TOTENBERG: Well, there are lots of other cases floating around. By the time this gets to the Supreme Court, I don't know how many there will have been. Julie probably knows better than I do. She's - tracks...
ROVNER: There are at least six more. The big case, the case that we've heard so much about, which is the case with the 20 attorneys general, the oral arguments are actually being heard tomorrow in Pensacola, Florida. So that's...
CONAN: This was the attorney general of Virginia, in Virginia?
ROVNER: The case that was - no, the case that was decided on Monday, right.
CONAN: Yes. Yeah.
ROVNER: Which - because Virginia has its own law that says you can't require people to have insurance, so he filed separately. But then, the multistate case, as we call it, with 20 other attorneys general that was filed in Florida is being - the oral arguments in that case are tomorrow.
CONAN: And Nina, we heard an interesting argument that maybe we just ought to skip the appellate process, the intermediate process. Why don't we just send this puppy up to the Supreme Court?
TOTENBERG: Well, it's a nice argument that Eric Cantor, the soon-to-be Republican majority leader of the House, has made. But I don't think it'll fly, because if, for some chance, you could pass that, which you -I don't - I doubt you could. But if you could, President Obama, I feel sure, would veto it.
And you know what? The Supreme Court doesn't like being shoehorned that way. They like to see what the lower courts have to say. They like to see these issues percolate for a little while. That almost guarantees that we're probably going to get a Supreme Court decision in the year of the next presidential election.
CONAN: That'll be interesting in and of itself. We're talking with NPR legal affairs correspondent Nina Totenberg and Julie Rovner, NPR's health policy correspondent. If you have question for them about the recent decision that was handed down that struck down part of the health care law, what it means for the law, what it means for you, 800-989-8255. Email us: email@example.com.
And Julie, I guess, that's the next question. Is the law now invalid?
ROVNER: No. And the judge was very, very careful to say that, even, yeah, even Judge Hudson who ruled just this one small piece of it unconstitutional. That doesn't take effect until the year 2014. So he was very careful to say the rest of the law - the implementation of the law goes forward regardless. So, really, this is just sort of more talking points for Republicans who'd like to repeal it.
In fact, John Boehner, the incoming speaker of the House, issued a statement that said, you know, maybe states should not waste a lot of time and effort implementing this given this court decision. But as Nina said, this is one, you know, U.S. district court judge. There are going to be 19 others who are going to rule. It's going to go to the appeals court levels. And eventually, it will get to the Supreme Court in all likelihood. So there will be - there's much further to go. And Congress, obviously, will take votes on whether or not to repeal this. But no, the implementation does not stop and does not need to stop.
TOTENBERG: Yeah. You know, there's a very interesting aspect of all of this. It's sort of the intersection of politics and law. If Judge Hudson's decision were to become law - Julie talked about the conversation about how you might implement this. But Republicans have said consistently, we want to keep the good parts of this law, the ban on, you know, discrimination for preexisting conditions and all of those kinds of things. But we don't like the mandate.
But everybody does understand that without the mandate, there won't be the money to fund this, and that private insurance companies won't want to only take care of people who are on - as they, in the worst case analysis, sign up on the way to the hospital.
TOTENBERG: So if you have a system in which there is no funding mechanism but all the goodies are there, then that, obviously, pressures the country into a public option, ironically enough, because it's the fact that you're forcing people to have private insurance that Judge Hudson says is not appropriate, but there's nothing that says there can't be a public option.
CONAN: A public option is the government is the...
CONAN: ...payer of last resort.
CONAN: Yeah. So we're talking about the health care law. 800-989-8255. You're listening to TALK OF THE NATION from NPR News.
And let's talk with Sheryl(ph), Sheryl is on the line with us from Columbus.
SHERYL (Caller): Yes. I want to know if they repeal this law that make health insurance mandatory, who then foots the bill for the people that will go to the emergency rooms in the hospitals with no insurance.
ROVNER: Well, now if the law got repealed then we would be back to square one, which is to say that people, when they - there is a federal law that says hospitals must treat people who have - who present with, you know, with emergency conditions. There, they must screen them and stabilize them, that's the law. And that goes, if they can't pay - they can obviously bill them. And if they can't pay, then the hospital eats that. There are special payments under Medicare and Medicaid to try and make up for that.
But basically that's, you know, what we call uncompensated care. Hospitals try to make it up in extra, you know, in charging more to their privately insured patients. And basically that's the idea. That's what's behind the mandate. That's what the government is arguing in its case is that's the $43 billion in uncompensated care that people who don't have insurance are basically getting when they go to the hospital when they don't have insurance.
TOTENBERG: And I'm here to tell you as the wife of a trauma surgeon employed by a hospital that when you have somebody carried in half dead, you don't stop to ask whether the government is going to pay for this or private insurance. You just have - you are required, not only by federal law but under the Hippocratic Oath to take care of that person.
SHERYL: Right. And I guess my comment then, the conversation we should be having is why that some should pay and others shouldn't pay even when they're capable.
CONAN: Sheryl, thanks very much for the call. Appreciate it.
SHERYL: Thank you.
ROVNER: And that's the legal argument. That this is - that the individual mandate is necessary and proper under the Commerce Clause to get everybody paid for. That all - that virtually, that unlike other things like - unlike requiring someone to purchase a car or to purchase, you know, to eat broccoli or something else, that virtually everyone is going to consume health care at some point, and that there is an individual responsibility to pay for it upfront.
That is the government, that's the essence of the government's case for this individual mandate.
CONAN: You mentioned the intersection of politics and the law. The judge, Henry Hudson, appointed by President Bush, the second President Bush, I believe. And the other two judges who were appointed - who've decided on this, who've issued rulings on this, appointed in the Clinton administration. Are we going to see that kind of division, do you think, Nina?
TOTENBERG: No, I don't necessarily think so at all. First of all, just because when you look and see that so and so was appointed by President Clinton, that doesn't mean that the Republican senators from that state weren't saying we want this guy. Because that's the, you know, when there are two senators from an opposing party, they have to be consulted or that nomination doesn't move. So that's number one.
And number two, judges actually believe - most of them - in enforcing the law. Now, people have prejudices that they don't acknowledge, and they have prejudices that they acknowledge and say well, look, I hate this law but I think it's constitutional. And you can find lots and lots of instances of that in the history of American jurisprudence.
CONAN: Another question, if and when this gets to the Supreme Court, would the newest justice, Elena Kagan, have to recuse herself?
TOTENBERG: There is not one scintilla of evidence that she has any intention of doing that. She was asked at her confirmation hearings whether she had anything to do with the law, the defense of the law, and she said absolutely not. So I think they're going to, you know, they tried at the confirmation hearing, I think, to get some sort of a commitment out of her or some sort of information and she didn't give them anything to go on. And I - she's had to recuse from 27 cases that were in progress at the time she was solicitor general. Just remember, she hasn't been solicitor general since last May, and these cases weren't there yet. They weren't started even.
CONAN: So the next step then for the health care legislation: Are we expecting another round of measures that have to take effect, Julie?
ROVNER: Yes. Well, I mean, we're continuing - the Department of Health and Human Services is writing regulations. They come out pretty much on a weekly or biweekly basis. As soon as the new Congress starts in January, though, the Republican House will expect to start holding hearings and, you know, summoning administration officials. I think we'll be seeing them on a regular basis at hearings.
CONAN: And there's talk about defunding the law, not repealing it but defunding it.
ROVNER: There will certainly be efforts to defund it. There will certainly be efforts to try - they can use something called the Congressional Review Act to try and disapprove some of these regulations. That's another tool that they can use. But again, you know, the Senate will still be controlled by Democrats. I don't know that there'll be that much stomach in the Senate for following through on these, so I think it will be a lot of show, and I'm not sure how much substance.
CONAN: Thank you both very much. We appreciate it.
TOTENBERG: Thank you.
CONAN: And we will stay tuned for the next round of judicial rulings on this point. NPR legal affairs correspondent Nina Totenberg, Julie Rovner, NPR health policy correspondent, both with us here in Studio 3A.
Tomorrow, inmates in Georgia went on strike last week for better pay. We'll talk about jobs in jail. Plus, Senator Bernie Sanders on the eight hours he spent holding the floor of the United States Senate. Join us for that. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.
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