Posts Tagged ‘Unconstitutional’

DOMA Bites the Dust

Monday, July 1st, 2013

The U.S. Supreme Court’s voted 5-4 to strike down the 1996 Defense of Marriage Act. Swing voter Anthony Kennedy joined the liberal wing of the court –Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Dissenting were Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas, and Samuel Alito.. They also ruled that the plaintiffs in the case of Proposition 8, which banned same-sex marriage in California, did not have the legal standing to bring that lawsuit.

The decision is expected to have major consequences on health coverage for legally married same-sex partners of federal employees and members of the military, as well as on tax treatment for private health coverage (a 2007 report from left-leaning think tank Center for American Progress and the UCLA’s Williams Institute found that employees with partners pay over $1,000 more in taxes each year than their married peers).  The caveat is that the ruling applies on to states where same-sex marriage is legal. New Yorkers will benefit; Pennsylvanians will not.

The ruling seems to confirm a sea change in gay rights in this century. Take American corporations which have been far more progressive than the courts on these issues. Hundreds of U.S. employers, both large and small, signed on to an amicus brief against DOMA in February, arguing that treating same-sex couples differently hurt recruiting efforts, as well as employer-employee relations. Nike, Apple and Starbucks were among the nearly 300 firms that joined in filing the brief. According to the Human Rights Coalition, a group that advocates for gay rights, 62 percent of Fortune 500 companies offer domestic partner health benefits.

DOMA barred the government from treating same-sex partners as married, raising the cost of healthcare for same-sex couples and denying them eligibility for federally guaranteed rights such as medical and family leave, and, in some cases, Medicare. In all, it denied more than 1,100 benefits to married gay and lesbian couples.

Thirteen states have or are in the process of legalizing gay marriage.  They join thirteen countries around the world including Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, Norway, Portugal, Spain, South Africa, and Sweden.

“The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage,” Justice Anthony Kennedy wrote in the 5-4 decision. “This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” Kennedy’s 26-page opinion says Congress’ explicit purpose in passing DOMA was to expose same-sex couples in state-sanctioned marriages to “a disadvantage, a separate status, and so a stigma,” which violated the Fifth Amendment guarantee of rights to life, liberty and property.

The law also harmed these children financially, Kennedy wrote, because health benefits provided to same-sex spouses were not entitled to the same federal tax-exemptions as those of heterosexual families’, creating unequal costs for same-sex households. The law also denied survivorship benefits for spouses and children through Social Security.

Oklahoma Just Says “No” to ObamaCare At a Price of $54 Million

Monday, May 2nd, 2011

The state of Oklahoma has turned down a $54.6 million grant to establish the state-based healthcare exchange system required in the Patient Protection and Affordable Care Act (ACA).  Governor Mary Fallin said the move “accomplishes my goal from the very beginning:  stopping the implementation of the president’s federal healthcare exchange in Oklahoma.”  In February, however, Fallin characterized the federal assistance as “consistent with our (healthcare) mission” and a “step in the right direction.”  According to Wikipedia, in 2009 fully 18.1 percent of Oklahomans lacked healthcare coverage.

Several states have refused grants of $1 million from the federal government to build healthcare exchanges — an online “marketplace” that consumers can use to compare and purchase insurance plans — but the Oklahoma grant is the largest that has been rejected to date.  The ACA r requires each state to establish a healthcare exchange by 2014.  If a state opts to not set up its own exchange, the Department of Health and Human Services (HHS) is required to create one for the state.  Oklahoma lawmakers are refusing to let that happen. Fallin said that Oklahoma will use state and private money to establish its own exchange, even though the state faces a $500 million budget shortfall in the upcoming fiscal year.  “We are working together to address the concerns that have been expressed by some by adding very specific language in the bill to prevent the implementation of federal healthcare exchange in Oklahoma while creating an Oklahoma-based solution,” Fallin said. The state exchange will be named the Health Insurance Private Enterprise Network, and create a public trust governed by a seven-member board made up of health insurance carriers, agents, providers, employer groups and consumers.

In fact, Fallin favors repeal of the healthcare reform law. “We all support the repeal and the replacement of the federal healthcare bill.  We do believe it is unconstitutional,” Fallin said.  A former member of Congress, Fallin voted against the healthcare bill in 2010 and supports a lawsuit filed by Oklahoma Attorney General Scott Pruitt that favors repeal.  Insurance Commissioner John Doak is returning a $1 million federal healthcare grant.  “This is a fulfillment of my campaign promise to oppose ObamaCare every way I could,” Doak said.  “I remain deeply committed to a free-market system that relies on licensed agents and brokers as the frontline of consumer protection.”

Not everyone in Oklahoma agrees with Fallin’s actions.  “We are $500 million in the hole and the Republicans have decided to turn away $54 million in federal money,” said Senate Democratic Caucus Chairman Tom Ivester.  “I don’t understand how this makes sense.”  Oklahoma is likely to have $500 million less to spend during fiscal year 2012.

“When we have our disasters in Oklahoma, we are the first ones to reach out and ask the same government for help,” said State Senator Judy Eason McIntyre.  “Just two weeks ago, Governor Fallin defended her decision to accept $54 million from the federal government to implement the state health exchange by arguing that the money was not tied to President Obama’s healthcare plan and that the state could not afford to do it on our own,” said House member Scott Inman.  “Now, just days later, Governor Fallin admits that the funding is in fact a part of Obama’s healthcare plan and that somehow, despite our $500 million shortfall, we can afford to do it without these funds. The question I have is, was Governor Fallin wrong then or is she wrong now?”

Judge Rules That Healthcare Law Must Be Implemented as it Heads to the Supreme Court

Tuesday, March 15th, 2011

The same Florida federal judge who declared President Barack Obama’s healthcare reform law unconstitutional ruled that states must continue implementing it as the case goes through the courts. U.S. District Judge Roger Vinson was responding to a request from administration attorneys who sought to ensure that states obey the law until their challenge to it is resolved.  Two other federal judges have upheld the law; one in Virginia has ruled against it.  The law’s ultimate fate is expected to be decided by the Supreme Court. In all, three federal judges have ruled that Congress possesses the authority under the Commerce Clause of the Constitution to enact the Patient Protection and Affordable Care Act (ACA).  The mandate requires that all Americans acquire healthcare coverage.  Two other federal judges have voted that the healthcare reform law is unconstitutional.

“It would be extremely disruptive and cause significant uncertainty” to halt implementation, Vinson wrote.  He added that if the federal government does not appeal within seven days, the states can consider the law invalid.  The Justice Department welcomed the stay and plans to file an appeal within the required time frame.  David Rivkin, a lawyer representing the 26 states challenging the law, said the decision “gets us exactly what we always wanted, which is an expeditious appellate process.”

“The battle lines have been drawn, the relevant case law marshaled and the legal arguments refined,” Vinson wrote.  “It is very important to everyone in this country that this case move forward.”  In some ways, the ruling was a victory for the Obama administration because it ended confusion over whether states should continue working to implement the law. “We appreciate the court’s recognition of the enormous disruption that would have resulted if implementation of the Affordable Care Act was abruptly halted,” Justice Department spokeswoman Tracy Schmaler said in a statement.  “We strongly disagree with the district court’s underlying ruling in this case and continue to believe — as three federal courts have found — that this law is constitutional.”

“It almost seems to be that he’s (Vinson) telling the 11th Circuit what they’re supposed to do,” said Tim Jost, a professor at Washington & Lee University School of Law.  “I’m not sure they’re going to take very kindly to that.”  The case was brought by 26 states and the National Federation of Independent Business NFIB), which hoped for an injunction clearly barring implementation of the reform law.  “The government’s attempts to stymie the judicial process are simply prolonging the uncertainty surrounding the law and do a disservice to the states, small-business owners and individuals who are seeking resolution,” said Karen Harned, executive director of the NFIB Small Business Legal Center.

In her “Right Turn” column in the Washington Post, blogger Jennifer Rubin writes that “When U.S. District Judge Roger Vinson issued his ruling finding ObamaCare unconstitutional, liberals seemed to develop a reading comprehension problem.  He plainly stated that the law is unconstitutional, but defenders of ObamaCare seemed not to grasp that the judge meant the government was supposed to follow that edict.  Can we imagine the howls that would have gone up had the Bush administration acted with such brazen dishonesty and contempt for a court?”

According to Rubin, “In sum, the administration’s feigned lack of understanding of the court’s earlier ruling, a position egged on by the liberal cheerleaders for ObamaCare, has only served to speed up the next level of review of ObamaCare’s constitutionality.  Moreover, for an administration promising to ‘depoliticize’ the administration of justice and to be faithful defenders of the rule of law, this episode shows the chasm between administration rhetoric and behavior.”

Obama Calls the States’ Bluff on Healthcare Law Implementation

Tuesday, March 8th, 2011

President Barack Obama is calling the states’ bluff on implementing the Patient Protection and Affordable Care Act (ACA) by allowing them to opt out of its most onerous requirements three years earlier than currently permitted. Speaking at a meeting of the National Governors Association, Obama specifically pointed to a proposal from Senators Ron Wyden (D-OR) and Scott Brown (R-MA) which he endorsed as a flexible approach.  “If you can come up with a better system for your state to provide coverage of the same quality and affordability as the Affordable Care Act, you can take that route instead,” Obama said, noting that, “If your state can create a plan that covers as many people as affordably and comprehensively as the Affordable Care Act does, without increasing the deficit, you can implement that plan and we’ll work with you to do it.”

The president endorsed the proposal to allow states to apply for “innovation waivers” beginning in 2014, three years earlier than originally scheduled. Under the terms of these waivers, states would be exempt from several of the law’s requirements if they set up their own method of adequately expanding coverage.  The “individual mandate” is the focus of multiple state lawsuits by states that contend it is unconstitutional.

The Obama administration has posted a detailed fact sheet on the proposal on the White House website. Additionally, Department of Health and Human Services (HHS) Secretary Kathleen Sebelius has blogged about it.

Despite lingering opposition to the healthcare reform law, the Obama administration is moving ahead with its implementation.  Over the last 10 months, HHS has made $2.8 billion available to states to help them start reforming their healthcare systems.  These funds let the states invest in improvements.  These investments are showing signs of progress thanks to more comprehensive oversight of insurance premium increases, new rights and protections for consumers, additional choices for people living with medical conditions, and the elimination of some of the worst insurance industry practices.

The bipartisan proposal’s future is uncertain, with both Democrats and Republicans casting wary eyes at it. Representative Eric Cantor (R-VA), the House majority leader, said the healthcare law is “an impediment to job growth” and that he is still committed to repealing the ACA.  “I was disappointed,” said Governor Rick Perry (R-TX) and chairman of the Republican Governors Association.  “Pretty much all he did was to reset the clock on what many of us consider a ticking time bomb that is absolutely going to crash our state budgets.  The states need more than that.”  Even some Democrats are cautious because they believe that it is impossible to expand healthcare coverage and reduce the deficit without the federal mandate.  Senator Max Baucus (D-MT) said “We want to give states as much flexibility as possible, but that flexibility shouldn’t fail to ensure that Americans in every state have access to quality, affordable healthcare.”

Writing in the Washington Monthly, Steve Benen asks “So, how big a deal is this?  It marks a fairly significant departure from the administration’s status quo, but at its root, what we’re seeing is the White House call Republicans’ bluff.  The GOP is convinced it can offer comparable coverage at comparable prices using Republican-friendly policies.  Today, in effect, the president said, ‘Be my guest.’  Why?  Because Obama knows it’ll take more than tort reform and HSAs to make the system work, and he sees a political upside to watching GOP officials scramble to actually craft their own plans, rather than bash his.”

President Obama also made it clear that the federal government is moving forward with healthcare reform. “I am not open to refighting the battles of the past two years or undoing the progress that we have made, but I am willing to work with anyone, governors or members of Congress, to make this law better…and fix what needs fixing,” Obama said.

Healthcare Law Repeal DOA in Senate; Likely Headed to the Supreme Court

Monday, February 14th, 2011

The Republican House of Representatives’ attempt to repeal the Patient Protection and Affordable Care Act was DOA — as expected — in the Democratic-controlled Senate.  Voting along strict party lines, all 50 Democratic Senators who were present and one Independent gave the repeal a thumbs down.  All 47 Republican Senators voted in favor of repeal.  Two Senators – one a Democrat and the other an Independent – were not present to vote.

Senator Barbara Mikulski (D-MD) delivered a scornful speech during the heated debate, saying the Republicans are offering “one more hollow, symbolic pander-to-the-masses amendment.  If you want to rewrite the bill, keep your promise, Republican Party, that if you want to repeal, then let’s go replace.  I want to hear their ideas for replacement.  I challenge them right here, right now, today on this amendment.”  Not surprisingly, Republican Senate leaders disagree with Senator Mikulski’s stance. “We think it is just the beginning,” Senate Republican Minority Leader Mitch McConnell (KR-KY) said Wednesday after the Senate voted to reject an amendment he offered to repeal the law.  “This issue is still ahead of us and we will be going back at it in a variety of ways,” McConnell noted.  “We’ll be looking at it in every different way to revisit it.”

The Republicans can claim a small victory as the Senate voted to repeal the 1099 requirement that was a highly unpopular inclusion in the healthcare reform law. Many perceived this as a tax on healthcare consumers and small businesses because it required anyone performing a transaction equaling $600 or more to file a 1099 form with the IRS.  The cost of the requirement had the potential to add up to 40 percent for some small businesses, which could have resulted in closures or layoffs.  The amendment passed the Senate by an 81 – 19 vote and has President Barack Obama’s support. Opponents of the amendment, such as Senator Carl Levin (D-MI), said that Congress, not the White House, should wield the budget-cutting ax.

The Senate’s actions come on the heels of a decision by Florida Federal District Court Judge Roger Vinson that it is unconstitutional for Congress to pass a healthcare law that requires Americans to obtain insurance coverage.  Judge Vinson’s decision created a 2 – 2 tie in lower courts. According to Judge Vinson’s decision, “The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.”

Judge Vinson’s decision increases the likelihood that the Affordable Care Act will end up in front of a Republican-dominated Supreme Court. “A year ago, it was a long shot,” said Randy Barnett, a law professor at Georgetown University.  “Now, it’s seen as a 5 to 4 case.  And nobody’s sure which way the 5 – 4 will come down.”  The stakes are enormous for the defining achievement of the Obama presidency.  The decision also has the potential to define the limits of federal power for generations.  “This case could define federalism for the next 100 years,” said Jonathan Turley, a George Washington University constitutional law professor.  “This is a very difficult case for the Supreme Court as an institution.  You have a slight majority of the states opposing it.  You have a national law that’s affecting hundreds of billions of dollars and services.  This is the type of case the justices do not relish.”

Additionally, Virginia Attorney General Ken Cuccinelli has asked the Supreme Court to fast track his state’s challenge to the healthcare law, saying he thinks the legal dispute has become so important that the nation’s highest court should take it up immediately. “We want to eliminate the uncertainty in both our governmental budgets and in the private sector,” he said.  “We want to eliminate at least the uncertainty associated with health care.” The Obama administration opposed the move, saying the case should follow the regular process.  This would put off until 2012 a Supreme Court ruling on the law that aims to provide more than 30 million uninsured Americans with medical coverage and cracks down on unpopular insurance industry practices.

Healthcare Fight Could Be Settled by Stealing an Idea From Medicare

Tuesday, January 18th, 2011

The Obama administration may have a card up its sleeve in its battle against states’ attempts to have the new healthcare reform law declared unconstitutional.  Even if the Supreme Court ultimately rules that the federal government cannot require that individuals purchase healthcare insurance, the administration could borrow a strategy that Medicare has used for decades that encourages consumers to participate in new insurance groups.  Medicare coverage for physician visits is voluntary and is paid for by a separate premium.  Even so, 90 percent of Medicare recipients sign up for the plan because opting out when they become eligible carries a lifelong penalty that only increases the longer they resist.

The healthcare reform law could incorporate a similar penalty instead of the current mandate.  Such a move would persuade reluctant but healthy people to enroll in a healthcare plan.  The primary benefit is that this keeps premiums affordable because the law makes it impossible for insurers to refuse to treat sick people.  “It wouldn’t be a nirvana solution,” said Chris Jennings, a health policy consultant who advised President Bill Clinton and Hillary Clinton during their 1990s push for healthcare reform.  According to Jennings, the current law covers more people at lower cost, although “it would be irresponsible not to try an alternative” if the courts overturn the legislation.

Gail Wilensky, who ran Medicare for President George H. W. Bush, described the ploy as “mandate lite”.  A modification of what is done with seniors on Medicare would be a much more powerful tool.  You don’t have to buy insurance.  But if you don’t, the first time you come in, we’re going to add a penalty that you’ll have to pay for the next four or five years.”

The case is likely to be tied up for years in more than 20 lower federal and state courts before it potentially reaches the Supreme Court.  In the meantime, provisions of the law will be phased in.  President Obama is firm in his belief that the law will be proven constitutional and that the possible fallback plan will not be necessary.

Virginia Judge Rules Against a Key Proviso of Healthcare Reform Law

Monday, December 20th, 2010

A conservative federal judge in Virginia has ruled that a key provision of the Patient Protection and Affordable Care Act is unconstitutional. Specifically, U.S. District Judge Henry Hudson overturned the section of the healthcare reform law that requires all Americans to purchase healthcare insurance starting in 2014.  The Obama administration will appeal the decision, which is likely to end up before the United States Supreme Court.  Previous lawsuits in Michigan and Florida have been dismissed and additional cases are pending, including one filed by 20 other states.  Hudson agreed with Virginia Attorney General Kenneth Cuccinelli in saying the mandate overstepped the Constitution.

Hudson, who was appointed to the federal bench by George W. Bush, explained his decision this way.  “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” he wrote.   “In doing so, enactment of the (individual mandate) exceeds the Commerce Clause powers vested in Congress under Article I (of the Constitution).  The outcome of this case has significant public policy implications.  And the final word will undoubtedly reside with a higher court.  At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate.”

We are confident that this law is constitutional, and we are confident that the Supreme Court when, and if, it hears this case will agree that it’s constitutional,” an Obama administration official said.   White House healthcare reform director Nancy-Ann DeParle said the administration is encouraged by the two other judges who have upheld the law.  She noted that the Justice Department is presently reviewing Hudson’s ruling.