Myths about the Health Care Law

I will likely be writing a lot about the health care law as the Supreme Court hears the case next week.   Walter Dellinger had a nice piece in today’s Washington Post dissecting five of the myths related to the Affordable Health Care Act or Health Care Reform.  I look at 3 of the myths.

Myth 1:  Everyone is forced to buy health insurance.  Dellinger writes

The law states that, beginning in 2014, individuals must ensure that they and their dependents are covered by health insurance. Taxpayers who do not meet this requirement will have to pay a penalty that the law calls a “shared responsibility payment.” It begins at $95 for the first year and never exceeds 21 / 2 percent of anyone’s annual taxable income.

A great majority of Americans, of course, have health insurance through their employers, Medicare or Medicaid and are already in compliance with this requirement. Given the relatively modest payment required of those who choose not to maintain insurance, no one is being literally forced to buy a product they don’t want.

The challengers argue that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. The government has determined, however, that those who pay the penalty, like those who are exempt from the penalty, are not lawbreakers. As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.

Myth 3:  If the Supreme Court uphold the Affordable Care Act, Congress could force us to buy anything.

The health-care case is a test of Congress’s power under the Constitution to regulate commerce among the states. One way to defend the law is simply to say that a requirement to purchase insurance or any other product sold in interstate commerce is obviously a regulation of that commerce. President Ronald Reagan’s solicitor general, Charles Fried, and conservative judge Laurence Silberman have adopted this view.

The Obama administration is not relying upon such a sweeping argument, however, and its more limited claim would not justify any law that required Americans to buy products such as cars or broccoli.

Myth 5:  The Law is an extraordinary intrusion into liberty

Liberty is always said to be fatally eroded, it seems, when great advances in social legislation take place. The lawyers who urged the Supreme Court to strike down the Social Security Act of 1935 argued that if Congress could provide a retirement system for everyone 65 and older, it would have the power to set the retirement age at 30 and force the very young to support everyone else.

It was said that if Congress had the authority to create a minimum wage of $5 an hour, it would also be a regulation of commerce to set the minimum at $5,000 an hour. In 1964, critics argued that if Congress could tell restaurant owners not to discriminate on the basis of race, it could tell them what color tablecloths to use. None of these things happened.

Nothing in the health-care law tells doctors what they must say to patients or how those patients are to be treated. It only requires people to either have insurance coverage or pay a modest tax penalty.

I think this last is the argument you hear the most.  Change is always scary and many argue their fears.  One of the big arguments used against the Equal Rights Amendment by opponents was that it would require all bathrooms to be unisex.  In Virginia where I worked for the General Assembly to ratify the amendment, this was pretty potent especially with older women.  I think they envisioned a public rest room where men were lined up in full view using urinals!

How will the Court decide?  Hard to predict but there is one piece of hopeful new.  A moot court at the National Constitutional Center upheld Health Care Reform, 8 to 1.    The judges were:

Chief Judge: Timothy K. Lewis, Of Counsel at Schnader, Harrison, Segal & Lewis and former Judge, United States Court of Appeals for the Third Circuit

D. Michael Fisher, Judge, United States Court of Appeals for the Third Circuit

Thomas C. Goldstein, Partner, Goldstein and Russel, P.C., co-founder and publisher of SCOTUSblog

Kent A. Jordan, Judge, United States Court of Appeals for the Third Circuit

Theodore McKee, Chief Judge, United States Court of Appeals for the Third Circuit

Neil S. Siegel, Professor of Law and Political Science and co-director of the Program in Public Law at Duke University School of Law

Dolores K. Sloviter, Judge, United States Court Appeals for the Third Circuit

Patricia Wald, Judge, United States Court of Appeals for the District of Columbia Circuit

Richard C. Wesley, Judge, United States Court of Appeals for the Second Circuit

You can see video here.