Just What the Doctor Ordered?

The Supreme Court will soon be devoting six hours of oral argument to consider constitutionality of the Patient Protection and Affordable Care Act (a.k.a. Obamacare, Pub.L. 111-148, 124 Stat. 119). During the three days of High Court hearings, the Supreme Court will judicially scrutinize four aspects of Obamacare.

The Individual Mandate which compels citizens to engage in commerce to buy health care has generated the most interest in the political arena.  But the High Court will also consider if Obamacare used legislative language which would effectively overturn the entire statute if one part is found unconstitutional (lack of severability).  The Supreme Court will also examine if Congress can dictate to states how to spend Medicare money in expanding eligibility.  The matter whether or not Obamacare is a tax is an arcane but key issue, as invoking the Anti-Injunction Act from 1867 would delay recognizing standing for  judicially challenging Obamacare until 2015.

While the Supreme Court is expected to deliver an opinion by the end of the current turn in June, some members of Congress are not waiting for the decision from on high by what Mark Levin called “The Men in Black”.  Representative Todd Rokita (R-IN 4th) introduced the State Health Flexibility Act that would block grant Medicare and S-CHIP aid to the states.  ObamaCare will force states to spend up to $118 billion more and offer Medicaid to an additional 17 to 25 million people.  HR 4160 would give states an incentive for saving taxpayers money by giving states flexibility to determine eligibility, benefits and reimbursement rates.  The Congressional Budget Office has estimated that the State Health Flexiblity Act would save $1.8 trillion compared to Obamacare.

The State Health Flexibility Act is legislation that should please Tea Party types.  HR 4160 currently has 20 co-sponsors, including Representative  Paul Broun, M.D.  (R-GA 10th), but it has been referred to the House Subcommittee on Indian and Alaska Native Affairs.  Considering that it is an election year and there is gridlock with the Senate, it would not be unlikely to become law in the 112th Congress, but it does lay a foundation for good governance in the future.

Representative Dr. Broun crafted the OPTION (Offering Patients True Individualized Options Now) Act (HR 4224) to remedy America’s health care challenges by repealing Obamacare and overhauling the system to deliver a patient centered health care system.  This 50 page bill would move Medicare into a flexible premium assistance program, facilitate buying health insurance over state lines.  The OPTION act would make health care expenses 100% deductible for everybody while allowing Health Savings Account (HSA) contributions to be increased to $10,000 per year.  It would also allow for Medicare HSAs so that seniors could choose plans which work for their needs and their estates keep unused contributions.  HR 4224 would make it easier for groups to create Associated Health Plans, thereby helping small businesses and others to leverage their collective power in getting better deals.  Finally, doctors would be given tax breaks for offering pro bono services to the indigent.

Dr. Broun’s OPTIONS Act is a marked contrast to the voluminous 2,700 page legislative behemoth known as Obamacare that dictates from the top down what is a qualified health plan which mandates that conscientious Christians must violate their beliefs to pay for services that they find abominations and actually current estimates are that the cost of health care are be nearly double the $937 million estimate makes calling it an “...Affordable Care Act” laughable.  Of course, considering Congressional gridlock during an election year, HR 4224 is unlikely to become law this year.  But good things may eventually come to those who wait.


Former Governor Sarah Palin (R-AK) created quite a stir with a Facebook posting in 2009 in which she alleged that Obamacare had “Death Panels”. Progressives scoffed at the seeming “stupidity” of claiming death panels.  Yet it seems that Obamacare has a “feature” known as Independent Payment Advisory Boards which is intended to keep Medicare costs from spinning out of control.  IPAB is effectively a rationing board which determines what procedures will be authorized and for whom.  It is easy to see IPABs as Death Panels with a benign bureaucratic moniker.

The House passed HR 5, the Protecting Access to Healthcare (PATH) Act, by a 223-181 margin.  Seven Democrats crossed party lines to vote for HR 5, which contained an amendment to repeal IPABs.  It was speculated that more Democrats wanted to vote for HR 5 but they hesitated due to “poison pills” which established nationwide caps on tort claims to  $250,000 for punitive damages in medical lawsuits.  In an election year when Congressional Democrats will have a tough time due to redistricting, retirements and not sharing in fundraising with Obama 2012 Re-Election Campaign, they chaffed at alienating their generous tort lawyer supporters.  Some Republicans were nervous about language in the non binding findings to HR5 which suggested that the healthcare industry is part of interstate commerce, but this was stripped out at the last minute.  This repeal of IPAB is unlikely to even be considered by the Senate but will be a good issue for Republicans to run on to show seniors that the GOP cares about their constituents health care in their golden years.

Cynics may say that these legislative efforts are full of sound and fury yet signify nothing.  If the Supreme Court only rules on the Anti-Injunction Act, the unprecedented three days of oral arguments may not matter much as standing would not occur until 2015.  But given time for the American people to come to grips with their mortality, these legislative prescriptions may be just what the doctor ordered.

h/t: Caglecartoons.com
h/t: Michael Ramirez, Investors.com/cartoons