Outlook: Myths about the health-care law

Mar 26, 2012

The Supreme Court will hear three days of arguments starting Monday on whether President Obama's Affordable Care Act is constitutional. Twenty-six states have filed challenges to the health-care reform law. The main issue, on which the lower courts have split, is whether Congress had the power to pass this law under the Constitution's commerce clause. The answer to that and other questions are clouded by misperceptions about the law itself.

Walter Dellinger debunked myths about the health-care law.

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Hello.  This is Walter Dellinger and I am looking forward to discussing the Supreme Court and the health care law with you all.  I will answer as many questions as I can.  Thanks for joining in.

The concept that universal health care is somehow unconstitutional blows my mind. Those in opposition refuse the facts and will continue their rhetoric and propaganda. No wonder America has the most expensive health care system in the world! My question: How can such a system long survive?

I agree that we are in a bad way if we dont have this law.  It will be difficult to pass any other.  And regardless of what one thinks of the social justice of extending coverage to 30 million Americans, the present system has made treatment more expensive, using emergency rooms as providers and passing the higher cost of that on to others.

How might the Affordable Care Act affect the rising costs of health care, and how might these costs be if this Act is determined to be unconstitional?

As I just said, this is an important issue. Right now the uninsured either (1) go without needed health care or (2) instead of getting less expensive preventive care, wait until an expensive condition sends them to high cost hospitals and (3) use emergency rooms as providers

Over and over I've heard opponents mislabeling the Affordable Care Act as another welfare program, as if the poor were simply going to get free health care at taxpayer expense. I've heard the same accusation made about the contraception coverage mandate. Given the number of Southern Strategy euphemisms used by many (not all) opponents, is it fair to suggest that many are using the health care debate as a proxy for other things?

It seems to be a proxie for something.  Where was all this passion when Massachusetts passed Governor Romney's law which included a tax penalty as a "mandate' to get insurance?

I assume others will ask about the specifics. What are the odds that the Court will use this as an opportunity to really restrain the ability of the Federal government to regulate the economy, set policy, and direct action by the states? Many analysts see the health care law, and specifically the mandate, as well within historic use of the commerce clause, so it has been suggested that the court will have to change the traditional view of the clause to invalidate the law, if they intend to. Do you agree, and if so, do you think they will?

Good question.  The most thoughtful conservative judged (Sutton and Silverman) think this is simply a "regulation of commerce".  The Court held in 1905 that Congress could prohibit commerce as part of this power, and later cases seem possibly to support the law.  I think it would be HUGE change in constitutional law to strike down this regulation of one-seventh of the national commerce

For all the people who argue against this law about health insurance, do they typically have health insurance? The benefits of health insurance? Ask former Vice-President Cheney about it. I doubt he would be alive today if it wasn't for his health insurance provided by his state and federal employer. Ironic is that Mr. Cheney would not be eligible for health insurance by many employers due to his pre-existing condition of having a heart attack in his late 30s.

I was tempted to include in my Outlook piece the question of why an incentive to have health insurance was so terrible and so invasive of privacy when every judge and justice who hears these cases, and every lawyer and pundit opining on this have one thing in common: they all have health insurance and would not dream of doing without it.

What do you think of Dr. Jill Vecchio's 7 part analysis of the health care law on youtube? It sounds biased, but...?

I'm sorry I didn't have a chance to see that, but I'll take a look later.

Is it the government's position, in defending the individual mandate, that hospitals and other providers burden interstate commerce when they raise their prices to private insurers in order to recoup the costs they incur in caring for the uninsured? If so, how does that work? Wouldn't a provider charge the highest price it profitably could in any event, so that any attempt to increase prices would be unprofitable? There may be a burden on the provider, but it's far from obvious that it can be passed on to insurers (and interstate commerce). Where's the myth here?

I appreciate the question but I think the short answer is that Congress's power "to regulate commerce among the states" is not limited to removing "burdens" on that commerce. Congress can, if it wishes, in fact impose burdens.  And has often done so.

Why can't the government force me to buy broccoli and cars? I don't see much limiting language to the Constitution (especially as applied by modern courts) to the commerce power. The power to regulate means the power to define the rules of interstate commerce. Those rules clearly can define what you CAN'T buy (see, e.g., drugs). I think it is a tortured reading of "regulate" to say it doesn't allow the government to say what you must buy...that is just a different way of exercising the same power. True, that is a sweeping power, but I'm not worried about waking up tomorrow to find that the government is forcing broccoli or the Chevy Volt on me, because it wouldn't be politically viable. Not every check on government power comes from the Constitution. Just because the government is ALLOWED to do it doesn't mean they ever WILL do it (an idea encapsulated in your 5th myth). That's the weakness of the broccoli and cars argument.

Good quesition. Former Reagan Solicitor General Charles Fried and conservative Judge Silberman have both said, essentially, "of course the power to regulate commerce includes the power to require commerce, or to incentivize people to engage in commerce."  The are of course Bill of Rights limits on how that power is used.  And in this case the government can say the esential commerce in paying for health care  is inevitable for everyone, so that is as far as the Court need go.

It is possible the Supreme Court will determine that portions of the Affordable Care Act are constituional while other parts are not constituional? If that happens, which parts of the Act do you believe are more apt to be ruled unconstituional?

If the court holds that the mandate is unconstitutional it will I believe strongly also hold that the provisions giving people the right to buy insurance even when they have pre esisting health problems and charging people who have family members with heath problems the same premium as other will necessarily fall as well.  I am very surprised that few people know that this very very popular provisions are under attack

I admit that I don't understand the outrage over the health care act. The 'mandate' thing is a bit dodgy, but what about the rest of it? Don't we all agree that having some sort of coverage is a good thing? Has the "Opposition" EVER put forth anything viable to ensure that we can't be denied coverage or dropped when we get sick? How many more decades of "analysis" are needed? When will big pharma lose it's stranglehold on us?

I agree. When national health care was last considered in the 1990'2 both parties agreed that SOME solution was needed.  In fact, the "Obamacare" mandate was the  alternative to single payer advanced by many Republicans.  This uproar shows how far out politics has shifted.

Aside from the theoretical constitutional arguments on the case, as a practical matter, what do you think are the odds of the Supreme Court actually striking down this law? My view is slim to none. The Court must be aware of its nature as a non-political, non-democratic institution in a political, democratic society. This law is a perfect example of the political process playing out as envisioned by the Founders: Argument and compromise on all sides, followed by the passage of the bill, and a chance that, ultimately, the bill will get overturned if Republicans have a good November. I don't think the Supreme Court is going to insert itself into that process, regardless of how the jurisprudence plays out.


This link is to Marty Leaderman's sweeping defense of the law on Balkinization.com -- the best written by anyone.  It persuades me of how hard it would be to write a plausible opinion striking this down.  I think the court will uphold it.

Some myths never die. Many of the talking heads continue to talk about "death panels" even though this concept was long ago debunked. Something like 40% of Republicans still believe death panels are part of the ACA. It would seem that inventing outrageous myths is a good way to erode public support for the ACA. Have you found this to be true?

I dispair about our politics today because we are no longer operating on the same set of facts.  For the first time in my long life a substantial number of Americans are making their political decisions as part of an alternative universe.

How partisan is the court? Will the justices look at the law simply to bolster their own side?

I hope that partisan politics plays no role and I don't think it will.  The real issue is whether foru or five Justices have a very restrictive view of the constitutional role of the national government and the importance of deferrence to the judgments of Congress

I am wondering if you can confirm/reject my own current understandings: Many thanks for bringing some light to the darkness, today... I believe that, while no person can be denied coverage, there is no limit as to what they can be charged for that coverage. Is this correct? If true, doesn't that mean you can priced out of the market, resulting in, effectively, the same lack of coverage?

I am pretty sure the answer to you question is yes.

Dear Walter: I appreciate your efforts to communicate principles of the law. Thank you. Francis Dove, M.D., Major, USAF, Retired

You are so welcome.  This is an engaging enterprise.  I wish I was going to have time to answer all of the questions and respond to all the comments.  They are excellent.  I'm typing as fast as I can and I'm losing ground to the number of good questions that are coming in

When Citizens United was passed two years ago a lot of people predicted the exact electoral problems that we are seeing now- where individuals and corporations have the ability to singlehandedly keep a candidate in a race and put disproportionate power in their hands. While I don't fully understand the legal argument, it was clear that the Roberts court didn't understand the political impact of their ruling. Is the court only looking at this within the carefully defined boundaries of case law, or are they considering the greater implications of the Affordable Health Care Act beyond the law?

Excellent question.  This is a rare Court in American history that has not a single member who had ever run for elective office.  The Court that decided the Brown case in 1954 had three former US Senators and the former governor of California.  It understood the bigger picture.  This Court seems not to understand politics and treats Congress with some contempt.

Hello and thanks for taking my question. Regarding your myth #1, you say "Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don't want." First, your definition of a relatively modest payment is just that, yours. Second, it is technically true that the government cannot force you to buy insurance, but I think most people equate "force" with "coerce". After all, the government cannot force me to pay my taxes, even if they put me in jail. They cannot force me to leave a park unless they physically remove me, but they can certainly threaten me with fines, arrest, or jail to coerce me to leave. They cannot force me to only drive with a valid license, but again they have many coercive tools to make me do so. I believe the vast majority of Americans would agree that characterizing these coercive efforts as "force" is appropriate, even if not technically true. Essentially, the government is saying "Do A, or we'll punish you with B", whereas prior to this the government said "DON'T do A, or we'll punish you with B".

: I understand your point, and this issue is really a matter of characterization rather than myth.  But here my point was made this morning by the Solicitor General in discussing the tax injunction act. From the transcript:

 Solicitor General Vrrrilli: You cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have insurance. That's just not the fairest reading of the statute.

JUSTICE KAGAN: The nature of the representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute doesn't do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?

GENERAL VERRILLI: No. Our position is that person should give the answer  "no."

Good Afternoon, 71 year old Dick Cheney had heart transplant surgery this weekend. If it wasn't for the fact that the man has lots of money and/or extremely good health insurance he would be in the boat most of us would find ourselves in in his situation: with our health insurance provider declining coverage for the procedure due to age and a pre-existing condition. Don't people realize that average citizens should have health insurance that is as good as the health insurance our elected officials enjoy?

Like you, I am surprised that so few people seem to understand the importance of extending insurance to 30 million American's who are without it.  I think Jonathan Cohn has a book on how devastating it can be for American families who lack health coverage

Whether the healthcare-law wil be upheld or not is apperently going to depend on the interpretation of 9 men, chosen on a partisan base, of a document written at the end of the 18th century! A very weak document by the way! A document wich interpretation left the possibility open for legally justified slavery up to the 1860's and segregation for yet another 100 years! I am aware that this is not an argument that will stand any ground in court. I'm just wondering why Americans grant some sort of holly status to this clearly outdated piece of paper. I'm a big fan of the seperation of the 3 powers (executive, congressional and judicial), so I'm not suggesting the supreme court shoudn't have any say in this. I just think it ought to base itself on a different (more up to date) document that allows the protection of minorities at all time!): What about the UN-charter of human rights?!

Powerful question.  At a minimum your arguments should lead the Justices to be very hesitant to use those ambigious words to strike down what an elected national Congress has done

How would the law address hardship... such as unemployment (no income to pay premiums)?

Good question.  No one has to pay the tax penalty unless they make 18.000 dollars (joint) and thus have to file a tax return.  The tax can never exceed 2 and a half percent.  And on top of that there will be regulations exempting from the penalty anyone who makes that money but would still because of circumstances fine it a hardship to have insurance

According to some: governement schouldn't oblige people to purchase something. But if you uphold that same logic people shouldn't oblige governement to by something for them (if it doesn't do this for all americans at least!). So from now on people without insurance schouldn't be provided emergency-aid in a hospital. Where am I wrong in my reasoning?

One answer would be to deny any health care to anyone who has not maintained insurance.  But that is a far more draconian incentive than having a tax penalty.  And we are not a people who are going to let people bleed to death on the curb in front of the hospital -- regardless of the choices they have made. That is why a relatively modest tax penalty makes sense

While I think the Court will uphold the Medicaid expansion, I am troubled by this question: How does the Court uphold the Medicaid expansion without refuting any concept of the coercion test that was suggested in Dole v. SD? Simply put, if this ain't coercion, what is?

The government's first argument on Medicaid expansion is that the Dole cases suggestion that some spending with conditions laws might be too coercive of the states to stand was ill-considered because there are just no judicial standards that are workable for such an approach.

Mr. Dellinger wrote an excellent piece, "5 Myths About the Health-Care Law," that recently appeared in the Post. I was expecting a link in the background information, but it's not there.


Thanks for catching that.  Here is the link to Mr. Dellinger's article:  http://www.washingtonpost.com/opinions/5-myths-about-the-health-care-law/2012/03/19/gIQAHJ6JWS_story.html

Thanks for taking my earlier question, but I don't think your quote from the proceedings really addresses the matter appropriately. Your example contention is buy insurance or pay a fine, and you won't be violating the law- but either way I am, compelled to do something (unless I don't pay the fine/tax). BTW, if I don't buy insurance or pay the tax/fine, what then?

If you neither have health insurance nor pay the tax penalty, there is not further enforcement -- unless you are owed a tax refund, in which case the government can subtract the fee from your refund. And, yes, you are suppose to do one or the other, but that doesn't quite make you do business with a private party.  If that seems a great incursion into your liberty, just pay the tax penalty.

If the ACA does get overturned, I have to say, I see no solutions coming down the pike. So we can just throw health care crisis back onto the pile of woes for the US - along with wealth inequality, environmental issues, etc.

I very much agree.  Folks, I'm going to have to sign off now.  I do so with regret because there are so many good questions, including very sharp questions that make good arguments coutrary to my positions.  I have enjoyed this and learned a lot.

In This Chat
Walter Dellinger
Walter Dellinger is a member of the Appellate Practice at O'Melveny, heads the Harvard O'Melveny Supreme Court and Appellate Practice Clinic, and is a Visiting Professor of Law at Harvard University. He is on leave from his professorship at Duke Law School. Over the past four years, he has argued Alabama v. North Carolina; Exxon Shipping Co. v. Baker; Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County; and Heller v. District of Columbia, before the US Supreme Court.

Dellinger served as Assistant Attorney General and head of the Office of Legal Counsel (OLC) from 1993 to 1996. He was acting Solicitor General for the 1996-97 Term of the US Supreme Court. During that time, Walter argued nine cases before the Court, the most by any Solicitor General in more than 20 years. His arguments included cases dealing with physician-assisted suicide, the line item veto, the cable television act, the Brady Act, the Religious Freedom Restoration Act, and the constitutionality of remedial services for parochial school children.
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