From Andrew Cohen in The Atlantic:
"U.S. District Judge Gladys Kessler didn't just endorse the constitutional legitimacy of the Patient Protection and Affordable Care Act on Tuesday evening. She used her 64-page ruling to answer some of the most basic criticisms of the new federal health care law. And she was as blunt in its defense as two of her colleagues on the federal trial bench, in Florida and Virginia, have been in striking down the contentious measure."
[...]
In a footnote, Judge Kessler wrote: "To put it less analytically, and less charitably, those who choose -- and Plaintiffs have made such a deliberate choice -- not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives."
By playing the "free ride" card, and by suggesting that those who do not purchase health insurance are making irresponsible choices that eventually harm others, Judge Kessler is reminding her readers that the dense legal issues involved in all of these cases have as their backdrop the nation's colossal health-care mess. The quote is a very pointed and unusual expression of official frustration (no wonder it's in a footnote) and it speaks not to the lawyers and the judges who will ultimately determine the fate of the new law, or to the politicians who created it in the first place, but to all the Americans out there who refuse to buy health insurance in the name of federalism and the 10th Amendment.
Then, later in her ruling, as if her initial point were not clear enough, Judge Kessler wrote: "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality."
Here we have a direct shot across the bow of the good ship Vinson, as in U.S. District Judge Roger Vinson, the Reagan appointee who last month tossed out the health-care law in its entirety. At the time, Judge Vinson wrote (PDF): "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power.' and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended" Expanded Medicare for All - Single Payer, would have been so much easier - and cheaper....
The Associated Press:
"A federal judge on Tuesday threw out a lawsuit claiming that President Barack Obama's requirement that all Americans have health insurance violates the religious freedom of those who rely on God to protect them.
U.S. District Judge Gladys Kessler in Washington dismissed a lawsuit filed by the American Center for Law and Justice, a Christian legal group founded by evangelist Pat Robertson, on behalf of five Americans who can afford health insurance but have chosen for years not to buy it."
From the White House:
On Monday, Judge Roger Vinson issued a ruling in a case challenging the constitutionality of the Affordable Care Act. The ruling comes after legal action in cases regarding the law in courts across the country. Twelve federal judges have already dismissed challenges to the constitutionality of the health reform law. Two federal judges – in the Eastern District of Michigan and Western District of Virginia – have fully upheld the law, and one federal judge in the Eastern District of Virginia ruled against the individual responsibility provision but declined to bar full, continuing implementation. The decision issued on Monday is one district court decision, and we believe it to be very wrong. The Department of Justice has made clear that it is reviewing all of its options in responding to this case, as it does in all cases. Implementation will continue.
Legal experts agree with our assessment of Judge Vinson’s ruling. Here’s what they are saying about the ruling and the case: Boston College Law Professor Brian Galle:
“The ACA and its accompanying incentives to buy insurance overcome a collective action problem among states. Thus, the ACA is easily distinguished from the court's parade of broccoli horribles; even if one thought that the federal government should deal only with uniquely national problems, the ACA easily meets that standard.”
David Engstrom, Stanford Law School Faculty Member:
“The issue that the court has ruled on has been specifically contradicted by two other district courts. So, the idea that the Obama administration should somehow stand down from implementing the act, based on a fourth district court, doesn't have any basis in law.”
NYU Constitutional Law Professor Rick Hills:
“Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate:
• It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61);
• The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63). Yet...
• "[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."
Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Judge Vinson never presents even the simulacrum of an argument: Instead, he engages in hand-waving.”
“I think Judge Vinson’s argument on the Necessary and Proper Clause is not persuasive…Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.”
“Judge Vjavascript:void(0)inson appeared to base the total nonseverability decision partly on what he took to be Congressional intent.… Judge Vinson's approach ought to be especially unappealing to the Supreme Court's “textualists,” who don't even like to speculate about what Congress subjectively intended by the language it enacted. How much worse it should be to speculate about what Congress might have done if it had known that a provision it enacted would subsequently be found invalid.”
Greg Sargent's blog: "The office of Wisconsin Attorney General J.B. Van Hollen, one of the states suing to overturn the Affordable Care Act, sends over this statement flatly declaring the law 'dead' for his state unless it's revived by a higher court, and asserting that this relieves state government of any and all its responsibilities to implement the law:"
This hints at a new line of criticism Dems can use, should other state governments do as Wisconsin is doing. The Affordable Care Act has already resulted in nearly $40 million in federal grant funding to Wisconsin. Now that the law is "dead," will Wisconsin return the money or rebuff any other federal grant money? Will other state governments declaring the law dead do the same? If so, how much money do they stand to lose? How will this impact their consistuents? It's a pretty worthwhile line of inquiry.
Steve Benen takes a look at some of the media coverage of the four key rulings on the Affordable Care Act, and finds that the two rulings pronouncing the law unconstitutional received far more attention than the two upholding it.
Four federal district courts have heard challenges testing the constitutionality of the Affordable Care Act. Two judges concluded the law is legally permissible, two came to the opposite conclusion.
But it occurs to me the public has heard quite a bit more about the latter than the former. Indeed, it seems as if the media largely ignored court rulings that bolstered the arguments of health care reform proponents, while making a very big deal about rulings celebrated by conservatives.
Washington Post
* Steeh ruling (pro-reform): A2, 607 words
* Moon ruling (pro-reform): B5, 507 words
* Hudson ruling (anti-reform): A1, 1624 words
* Vinson ruling (anti-reform): A1, 1176 words
New York Times
* Steeh ruling (pro-reform): A15, 416 words
* Moon ruling (pro-reform): A24, 335 words
* Hudson ruling (anti-reform): A1, 1320 words
* Vinson ruling (anti-reform): A1, 1192 words
Associated Press
* Steeh ruling (pro-reform): one story, 474 words
* Moon ruling (pro-reform): one story, 375 words
* Hudson ruling (anti-reform): one story, 915 words
* Vinson ruling (anti-reform): one story, 1164 words
Politico
* Steeh ruling (pro-reform): one story, 830 words
* Moon ruling (pro-reform): one story, 535 words
* Hudson ruling (anti-reform): three stories, 2734 words
* Vinson ruling (anti-reform): four stories, 3437 words
Source: The Washington Monthly
Let’s assume the state attorneys general are able to get the courts to agree that the mandate to purchase insurance is unconstitutional. Does that automatically mean that the court will declare the entire Act unconstitutional? Not necessarily. After declaring a section of an Act unconstitutional, the courts determine whether the remainder of the Act remains valid. The guiding principle is this according to a report on statutory interpretation from the Congressional Research Service quoting a ruling in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”
In other words, if the individual mandate to purchase health insurance is declared unconstitutional, then the issue will become whether Congress would have enacted the rest of the ACT if there were no individual mandate. We can be fairly certain that four members of the Supreme Court (Scalia, Thomas, Alito, and Roberts) will rule that the entire Act is unconjavascript:void(0)stitutional if they can find any piece of the Act unconstitutional such as the individual mandate. The question then becomes how the remaining five members of the court will rule. It should be very interesting. Read more here....
From ThinkProgres
From the page: "The most surprising part of Judge Roger Vinson’s ruling was his argument that the individual mandate was not severable from the health care law as a whole and must therefor bring down the entire Affordable Care Act. “In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably ‘evident,' as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently,” Vinson writes.
But a closer read of his analysis reveals something peculiar. In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by "borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123)." That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC). "
[...]
"Vinson's conclusion is peculiar because Congress usually defers to Congress on questions of severability. In fact, even Judge Henry Hudson - the Virginia Judge who also found the individual mandate to be unconstitutional - left the whole of the law intact noting, "It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501. Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any "problematic portions while leaving the remainder intact.""
As Chief Justice John Roberts noted in Free Enterprise Fund et al. v. Public Company Accounting Oversight Board, Because [t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions," Champlin Refining Co. v. Corporation Comm of Okla. , 286 U. S. 210, 234 (1932) , the "normal rule" is "that partial, rather than facial, invalidation is the required course.""
From the latimes.com: "Rejection of a challenge to a federal law on body armor for felons suggests a reluctance to rein in Congress' powers under the Constitution's commerce clause."
Netting $2.5 billion in profits last year wasn't enough for WellPoint, the nation's largest insurance company. Now, WellPoint's affiliate, Anthem Blue Cross and Blue Shield, is suing the state of Maine for refusing to guarantee it a profit margin in the midst of a painful recession.
Great piece from NPR
A corporation is not, nor has it ever been, a constitutional person with voting rights; it is not, not has it ever been, a democratic citizen; nor has it ever been a constituent member of "We the People " The founders did not mention the word "corporation" in the Declaration of Independence or the Constitution, and only a handful of corporations were even in existence at the time the Constitution was written.
The corporation is not a membership organization but an "artificial entity," as the Supreme Court has called it, chartered by the state or federal governments to serve public purposes. Legally speaking, it has no independent constitutional standing outside of the rights of the people who own it — and they already have the right as citizens to contribute and spend on campaigns. The idea now being promoted that CEOs have a First Amendment right to take other people's money out of corporate treasuries to spend on politics is outlandish. Read it all.
I really hope others are paying attention to this:
President Barack Obama’s health care speech on Wednesday will be only the second most consequential political moment of the week.
Judged by the standard of an event’s potential long-term impact on our public life, the most important will be the argument before the Supreme Court (on the same day, as it happens) about a case that, if decided wrongly, could surrender control of our democracy to corporate interests.
This sounds melodramatic. It’s not. The court is considering eviscerating laws that have been on the books since 1907 in one case and 1947 in the other, banning direct contributions and spending by corporations in federal election campaigns. Doing so would obliterate precedents that go back two and three decades.
The full impact of what the court could do in Citizens United v. Federal Election Commission has only begun to receive the attention it deserves. Even the word radical does not capture the extent to which the justices could turn our political system upside down. Will the high court use a case originally brought on a narrow issue to bring our politics back to the corruption of the Gilded Age?
Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton. The organization said it should not have to disclose who financed the film.
Instead of deciding the case before it, the court engaged in a remarkable act of overreach. On June 29, it postponed a decision and called for new briefs and a highly unusual new hearing, which is Wednesday’s big event. The court chose to consider an issue only tangentially raised by the case. It threatens to overrule a 1990 decision that upheld the long-standing ban on corporate money in campaigns. Read it all at Truthdig
"IF DANCING nude and burning the flag are protected by the First Amendment, why would it not protect robust speech about the people who are running for office?" So asks Theodore B. Olson, George W. Bush’s solicitor general until 2004. He is now the lead advocate for Citizens United, a nonprofit corporation that produced “Hillary: The Movie’’ to swift-boat Senator Clinton’s presidential campaign.
"Hillary" didn’t get much distribution because campaign-finance laws (such as McCain-Feingold) and court rulings (such as Austin v. Michigan Chamber of Commerce) bar corporate-funded ads from elections. But now the Supreme Court will review Citizens United v. Federal Election Commission on Sept. 9. Free-speech absolutists, from the National Rifle Association to the American Civil Liberties Union, support Citizens United ’s claim that FEC restraints were unjustified.
But if they win, free speech will be drowned out by people most Americans won’t get to know. She’s right, because a publicly traded business corporation, driven to maximize profits by market competition and its own charter, can’t rise above that mission any more than it can dance nude. Corporations aren’t “voluntary associations’’ with republican intentions, as Justice Antonin Scalia claims; in a civic sense, they’re mindless, because their shareholders change with every stock-price fluctuation. This year showed us that a republic periodically has to save capitalism from itself. Corporations are creations of the republic, not its equals or superiors. We citizens charter them, protect them legally, subsidize them, and even bail them out - and punish them when, as with Pfizer Chemical, their profit-maximizing violates drug-safety rules.
We couldn’t do that if a level playing field of “robust speech’’ were overwhelmed by corporate speech, which isn’t free because corporations, unlike individuals, are not full-fledged members of the community. As inanimate entities, they are incapable of what the political philosopher Michael Sandel calls “a willingness to sacrifice individual interests for the sake of the common good, and the ability to deliberate well about common purposes and ends.’’
That’s why corporations can’t vote - and shouldn’t be able to use the wealth we let them amass to inundate our deliberations. TV ads telling us how deeply oil companies care about the environment aren’t part of open give-and-take; they’re efforts to cash in on a consensus that might not have emerged at all had corporate money dominated our elections and debates more than it does. Read the rest at The Boston GlobePlease read Powell Memo: Text and AnalysisThe Powell Memo - Manifesto for the corporate overthrow of American democracy, by Lewis Powell in 1971, shortly before Nixon appointed him to the Supreme Court. This is the founding document of Reaganism and the Bush corporatist dictatorship. Lewis Powell became the author of the 1978 5-4 majority opinion in the SCOTUS decision FNBofB v. Belloti, which further expanded "corporate personhood". Too many liberals are not knowledgeable about this history - but it is what got us to where we are today. What makes getting health care reform that will actually work and other legislation our nation needs so difficult.
News Release
September 03, 2009
For Immediate Release
Contact: (916) 324-5500
Print Version
Brown Launches Independent Inquiry into HMOs' Handling of Health Insurance Claims
Los Angeles - Attorney General Edmund G. Brown Jr. today announced that deputies in his office are launching an independent inquiry into how Health Maintenance Organizations review and pay insurance claims submitted by doctors, hospitals and other medical providers.
This investigation is prompted by reports that California's five largest health-insurance providers are denying insurance claims at rates of up to 39.6 percent.
"These high denial rates suggest a system that is dysfunctional, and the public is entitled to know whether wrongful business practices are involved," Brown said.
In the coming days and weeks, deputies will review records and will speak with individuals who have relevant knowledge of the issues raised.
The Los Angeles Times reported today that the California-based Consumer Watchdog has submitted a letter to Attorney General Jerry Brown calling for an investigation of insurance giants Wellpoint and United HealthCare (UHC). The complaint comes in response to the insurance companies’ practice of actively encouraging employees to engage in anti-health care reform political activity. According to Consumer Watchdog, "while coercive communications with employees may be legal, if abhorrent, in most states, California’s Labor Code appears to directly prohibit them." Read the rest at Think Progress
Press Release:
Bayonne Hospital Center and Hospital Patient File Federal Lawsuit to Protect Bayonne, New Jersey Residents From Life-Threatening Business Practices of Horizon Blue Cross Blue Shield of NJ
Suit Charges Horizon with Systematic Attack on Emergency Care in Quest for Profit
BAYONNE, NJ, JULY 22, 2009—Bayonne Hospital Center (BHC)—the only hospital in the medically
underserved working class community of Bayonne, NJ—today announced it has filed a federal lawsuit against
Horizon Blue Cross Blue Shield of New Jersey (Horizon), the largest provider of health insurance in the state. The
lawsuit was filed in an effort to halt Horizon’s illegal, fraudulent, egregious and unethical business practices which
are endangering the lives of the citizens of New Jersey and threatening Bayonne Hospital Center’s financial
viability, all in the name of boosting its own bottom line and prospects for an initial public offering.
Horizon’s practices and activities include, among other things: a systematic campaign of intimidating patients into
abandoning emergency care at BHC that is already underway, including calls to patients and the sending of couriers
to instruct patients to leave the hospital while still in the midst of emergency treatment; egregious and arbitrary
denials of coverage and claims for emergency care at BHC; and constant efforts to under-compensate the only
emergency care option in the Bayonne community, a hospital just rescued from bankruptcy.
The complaint filed today in the U.S. District Court in Newark, New Jersey provides a detailed account of
Horizon’s business practices which run counter to the insurer’s contractual duties to its customers, its obligations
under state law and its stated commitment to the interest of public health. Some of the most offensive Horizon
practices detailed in the complaint include:
• A systematic campaign discouraging patients from seeking emergency care at BHC despite it being the
closest and safest option for urgent care for the residents of Bayonne
• Intimidation of patients by threatening denial of coverage if they seek treatment at BHC
• Interference with care by sending couriers to BHC to tell patients undergoing medically necessary
treatments to leave BHC and seek care at a hospital that is “in network”
• Indefensible denial of claims, often while the patient is still undergoing care
• Unilateral determinations by Horizon bureaucrats that emergency room patients are medically stable
enough to be discharged to home or transferred to other in-network facilities without consulting the
patient's attending physician
The complaint not only details Horizon’s atrocious behavior and policies with BHC, but also exposes Horizon’s
multi-billion dollar financial success at a time when New Jersey’s hospitals cannot afford to provide healthcare to
the communities which they serve. The complaint also reveals Horizon’s gold-plated executive compensation
packages and its publicly stated plans for conversion to a “for profit” entity and initial public offering.
Joining the suit as a plaintiff is Dr. John Godinsky, a Horizon customer who was admitted to Bayonne Hospital
Center through its emergency room for atrial fibrillation (irregular and often rapid heart rhythm). While still in the
hospital, Horizon contacted Dr. Godinsky and Bayonne administration to inform him his stay was being denied
based on what Horizon erroneously claimed was a pre-existing condition. Against the advice of his attending
physicians, Dr. Godinsky left the hospital fearing the large financial obligation associated with the uncovered stay.
Given the cavalier manner in which Horizon attempts to steamroll hospitals into accepting grossly inadequate
reimbursement rates and payment policies, it should come as no surprise that approximately half of the hospitals in
New Jersey are losing money. Perhaps even less surprising is the fact that Horizon is petitioning to become a “for
profit” entity, clearing the way for an initial public offering and a big payday for its executives.
Commenting on today’s announcement was Daniel Kane, CEO of Bayonne Hospital Center who said, “Ultimately,
Horizon’s attacks are not on hospitals but on the communities they serve. Their relentless assault on patients,
doctors and hospitals for the sake of their own profits is a prime reason that New Jersey ranks last in the country for
emergency rooms per capita. Neither this hospital nor the people of Bayonne will be bullied by Horizon. BHC filed
this case to fight for patients’ rights for quality health care and hopes that other hospitals will do the same in their
conflicts with Horizon.”
A copy of the complaint can be found online at www.BayonneMedicalCenter.org
Bayonne patients with questions about their insurance being accepted at the hospital should call their Insurance
Hotline at 201-858-7342.
About Bayonne Hospital Center
Established in 1888, Bayonne Hospital Center is a 278-bed, fully accredited, award-winning acute-care hospital
located in Hudson County. Since opening its doors more than a century ago, it has been committed to providing
quality, comprehensive, community-based healthcare services to more than 70,000 people annually. With its finger
on the pulse of the community, Bayonne Hospital Center continually develops new and expanded services to meet
the changing needs of the people it serves. For more information about Bayonne Hospital Center, visit the hospital
online at www.BayonneMedicalCenter.org
More on this at Daily Kos
"New York City has agreed to pay $2 million to the family of a woman who died last year on the floor of the psychiatric emergency room at Kings County Hospital Center after waiting more than 24 hours to be treated." Read More... NYTimes.com:
"Activists backing President Barack Obama's health care overhaul are asking the Justice Department to open a wide-ranging investigation of what they say is monopoly-like power in the hands of major insurers." Read More...
This is the first of two stories adapted from "Angler: The Cheney Vice Presidency," to be published Tuesday by Penguin Press.
"Cheney and his counsel would struggle for months to quash the legal insurgency. By the time President Bush became aware of it, his No. 2 had stoked dissent into flat-out rebellion. The president would face a dilemma, and the presidency itself a historic test. Cheney would come close to leading them off a cliff, man and office both"
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