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Health care and the Supreme Court

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I wrote a column for Sunday’s American-Statesman about the Supreme Court arguments this week on the constitutionality of the 2010 Patient Protection and Affordable Care Act, otherwise known as Obamacare. Here are links to two articles I referenced in the column that you might find worth reading yourself: Ann Coulter’s “Three Cheers for Romneycare” and Los Angeles Times reporter David G. Savage’s story about Mary Brown, a Florida woman who played a key role in getting the issue of the individual mandate before the Supreme Court but who last fall filed for bankruptcy with $4,500 in unpaid medical bills.

In the column I briefly alluded to the idea that the individual mandate is misnamed — that it’s more incentive than forced requirement, since you can choose not to buy health insurance. The choice will cost you a small tax penalty (small relative to your income, and of course the more income you make the smaller the penalty relatively becomes), but no one is making you buy health insurance. That the individual mandate should be preceded by “so-called,” given that it’s a misnomer, has been brought up numerous times over the past couple of years, but this op-ed published last fall by William Leach, a former professor of public policy, excellently summarizes the point.

Specifically before the court is whether the Constitution allows the federal government to compel — pressure, if you like — citizens to buy health insurance and whether an expansion of Medicaid to cover more poor Americans violates the 10th Amendment. There is no shortage of articles providing background information about the issue: Check out The Washington Post and The New York Times for a couple of good articles explaining the arguments before the court.

Arguments begin today at 9 a.m. CDT and continue through Wednesday. First up is whether the court can even rule on the health care law, since the individual mandate doesn’t take effect until 2014. This argument will center around an 1867 law called the Anti-Injunction Act that prohibits lawsuits against a tax until the tax takes effect. If the court decides the mandate’s penalty is a tax, then it might also decide it has to wait a couple of years before it can rule on the health care law.

The court hears arguments on the constitutionality of the individual mandate Tuesday. Wednesday morning it considers whether the individual mandate’s constitutionality can be separated from the health care law as a whole — there is little debate that most of Obamacare is constitutional — and Wednesday afternoon takes up the law’s expansion of Medicaid.


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