April 6, 2012
Worth Reading This Week
Sara Rosenbaum, Suing States over Threatened Access to Care — The Douglas Decision, NEJM
David Brailer & Farzad Mostashari, Two National Health IT Czars Compare Notes, Health Affairs
Robert Berenson et al, Medicare's Readmissions-Reduction Program — A Positive Alternative, NEJM
April 4, 2012
Political Spin and the Constitution
Oral arguments last week suggest an activist decision by the Supreme Court in the challenges to the Affordable Care Act. Indeed, in their response to the taxing power argument, the justices seemed poised to adopt a rather intrusive doctrine of policing political speech by elected officials. While some critics claimed that the mandate could not have qualified as a valid tax however it was characterized, the mandate has failed as a tax primarily because Congress called it a penalty and expressly disclaimed any intent to invoke its taxing power.
Consider, then, the following hypothetical version of the mandate's enactment. Suppose Democratic members of Congress discussed the taxing power as a source of authority and came to the incorrect conclusion that they could not use that power but instead had to use the Commerce Clause power to pass a valid mandate. They therefore called the levy for failing to carry insurance a penalty and disavowed any reliance on the taxing power, even though the levy was pegged at 2.5 percent of income (with minimum and maximum levies).
Should the Court really hold Congress to an inaccurate understanding of constitutional law? What would be the harm if the Court upheld the mandate as a valid exercise of the taxing power?
With the actual mandate, lower court judges were concerned about political accountability if Congress could pretend the mandate was not a tax when passing it and then call the mandate a tax when defending it. But how is political accountability compromised by the mislabeling? The public readily understood what was going on and very much held Democrats accountable in November 2010.
I understand the political reasons why Congress chose to invoke its Commerce Clause power rather than its taxing power, but the Court should not be in the business of rejecting statutes because Congress engaged in a good deal of spin when describing its actions.
[DO; cross-posted at Faculty Lounge]
April 1, 2012
EMTALA and the Free Rider Problem
This tragic case may interest those who teach EMTALA:
[Anna Brown] yelled from a wheelchair at St. Mary's Health Center security personnel and Richmond Heights police officers that her legs hurt so badly she couldn't stand. She had already been to two other hospitals that week in September, complaining of leg pain after spraining her ankle. This time, she refused to leave.
A police officer arrested Brown for trespassing. He wheeled her out in handcuffs after a doctor said she was healthy enough to be locked up. . . . She told officers she couldn't get out of the police car, so they dragged her by her arms into the station. They left her lying on the concrete floor of a jail cell, moaning and struggling to breathe. Just 15 minutes later, a jail worker found her cold to the touch.
For some context, here is an excerpt from a column from Steven Pearlstein on a far more noted battle last week:
[T]he solicitor general and several justices tried to make the obvious point that one reason so many Americans lack health insurance is that the market is inherently unlike any other in that we don’t deny medical care to sick people who can’t pay for it. It is from this anomaly that springs the “individual mandate,” a requirement that all citizens buy health insurance, to prevent them from becoming free-riders on a system paid for by others.
Rather than wrestling with this obvious anomaly, however, Scalia and Alito simply [blamed] the government for creating the problem in the first place by obligating hospitals to treat the sick even if they are uninsured and cannot pay for the care.