S0 Back To Transcript -3/28 - The Individual Mandate Is An "Hypothetical," Alive!

Discussion in 'Healthcare/Insurance/Govt Healthcare' started by mascale, Mar 28, 2012.

  1. mascale

    mascale VIP Member

    Feb 22, 2009
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    No one bothered to notice that a non-payer into health insurance, when confronted with a need to assist a sick payer into health insurance: Is a beneficiary of health care simply from the fact that everyone else has paid, and so there is medical remedy.

    So what happens to the rest of the Affordable Health Care Act, if there is no money?

    Some parts of the transcript are below. In like manner, what happens to the health care system, in a civilization, if there is no money. The non-payer in paragraph one, above, is a beneficiary without having to pay. The indirect benefit received is community health. In like manner, Justice Kennedy gets to the Employer mandate, reliant on the Individual mandate.

    So far, without so stating, the money matters!

    JUSTICE ALITO: May I ask you about the argument that is made in the economists' amicus brief? They say that the insurance reforms impose 10-year costs of roughly $700 billion on the insurance industry, and that these costs are supposed to be offset by about 350 billion in new revenue from the individual mandate and 350 billion from the Medicaid expansion. Now if the 350 billion — maybe you will disagree with the numbers, that they are fundamentally wrong; but assuming they are in the ballpark, if the 350 million from the individual mandate were to be lost, what would happen to the insurance industry, which would now be in the — in the hole for $350 billion over 10 years?

    MR. KNEEDLER: I don't — I mean, first of all, for the Court to go beyond text and legislative history to try to figure out how the finances of the bill operate, it — it's like being a budget committee. But — but we think the, the economists had added up the figures wrong. If there is Medicaid expansion, the insurance — and the insurance companies are involved in that, they are going to be reimbursed.

    CHIEF JUSTICE ROBERTS: But what if there isn't Medicaid expansion? We've talked about the individual mandate, but does the government have a position on what should happen if the Medicaid expansion is struck down?

    MR. KNEEDLER: We don't — we don't think that that would have any effect. That could be addressed in the next argument. But we don't think that would have any effect on the — on the rest of the — on the rest of the Act.

    CHIEF JUSTICE ROBERTS: So if your — the government's position is that if Medicaid expansion is struck down, the rest of the Act can operate -

    MR. KNEEDLER: Yes. Yes. It's — in the past Congress has expanded Medicaid coverage without there being — it's done it many times without there being a minimum coverage provision.

    JUSTICE KENNEDY: But I still don't understand where you are with the answer to Justice Alito's question.

    Assume that there is a, a substantial

    probability that the 350 billion plus 350 billion equals 7 is going to be cut in half if the individual mandate is — is stricken. Assume there is a significant possibility of that. Is it within the proper exercise of this Court's function to impose that kind of risk? Can we say that the Congress would have intended that there be that kind of risk?

    MR. KNEEDLER: Well, we don't think it's in the Court's place to look at the, at the budgetary implications, and we also -

    JUSTICE KENNEDY: But isn't that — isn't that the point then, why we should just assume that it is not severable?


    JUSTICE KENNEDY: If we — if we lack the competence to even assess whether there is a risk, then isn't this an awesome exercise of judicial power?

    MR. KNEEDLER: No, I don't -

    JUSTICE KENNEDY: To say we are doing something and we are not telling you what the consequences might be?

    MR. KNEEDLER: No, I don't think so, because when you — when you are talking about monetary consequences, you are looking through the Act, you are looking behind the Act, rather than — the Court's function is to look at the text and structure of the Act and what the substantive provisions of the Act themselves mean. And if I could go past -

    JUSTICE SCALIA: Mr. Kneedler, can I — can you give us a prior case in — that — that resembles this one in which we — we are asked to strike down what the other side says is the heart of the Act and yet leave in — as — as you request, leave, in effect, the rest of it? Have we ever — most of our severability cases, you know, involve one little aspect of the Act. The question is whether the rest. When have we ever really struck down what was the main purpose of the Act, and left the rest in effect?

    MR. KNEEDLER: I think Booker is the best example of that. In — in Booker the mandatory sentencing provisions were central to the act, but the Court said Congress would have preferred a statute without the mandatory provision in the Act, and the Court struck that but the rest of the sentencing guidelines remained.

    JUSTICE SCALIA: I think the reason — the reason the majority said that was they didn't think that what was essential to the Act was what had been stricken down, and that is the — the ability of the judge to say on his own what — what — what the punishment would be. I don't think that's a case where we struck — where we excised the heart of the statute.

    You have another one?

    MR. KNEEDLER: There is no example -

    JUSTICE SCALIA: There is no example. This is really -

    MR. KNEEDLER: — to our — to our — that we have found that suggests the contrary.

    JUSTICE SCALIA: This is really a case of first impression. I don't know another case where we have been confronted with this — with this decision.

    Can you take out the heart of the Act and leave everything else in place?

    MR. KNEEDLER: I would like to go to the heart of the Act point in a moment. But what I'd like to say is this is a huge Act with many provisions that are completely unrelated to market reforms and operate in different ways. And we think it would be extraordinary in this extraordinary Act to strike all of that down because there are many provisions and it would be too hard to do it.

    JUSTICE BREYER: I don't think it's not uncommon that Congress passes an act, and then there are many titles, and some of the titles have nothing to do with the other titles. That's a common thing. And you're saying you've never found an instance where they are all struck out when they have nothing to do with each other.

    My question is, because I hear Mr. Clement saying something not too different from what you say. He talks about things at the periphery. We can't reject or accept an argument on severability because it's a lot of work for us. That's beside the point. But do you think that it's possible for you and Mr. Clement, on exploring this, to — to get together and agree on -


    JUSTICE BREYER: — I mean on — on a list of things that are in both your opinions peripheral, then you would focus on those areas where one of you thinks it's peripheral and one of you thinks it's not peripheral. And at that point it might turn out to be far fewer than we are currently imagining. At which point we could hold an argument or figure out some way or somebody hold an argument and try to — try to get those done.

    Is — is that a pipe dream or is that a -

    MR. KNEEDLER: I — I — I just don't think that is realistic. The Court would be doing it without the parties, the millions of parties -

    JUSTICE SCALIA: You can have a conference committee report afterwards, maybe.


    MR. KNEEDLER: No, it just — it just is not something that a court would ordinarily do. But I would like -

    JUSTICE SOTOMAYOR: Could you get back to the argument of — of the heart?

    MR. KNEEDLER: Yes.

    JUSTICE SOTOMAYOR: Striking down the heart, do we want half a loaf or show. I think those are the two analogies -

    MR. KNEEDLER: Right. And — and — and I would like to discuss it again in terms of the text and structure of the Act. We have very important indications from the structure of this Act that the whole thing is not supposed to fall.

    The — the most basic one is, the notion that Congress would have intended the whole Act to fall if there couldn't be a minimum coverage provision is refuted by the fact that there are many, many provisions of this Act already in effect without a minimum coverage provision. Two point — 2 and-a-half million people under 26 have gotten insurance by one of the insurance requirements. Three point two billion dollars -

    JUSTICE SCALIA: Anticipation of the minimum coverage. That's going to bankrupt the insurance companies if not the States, unless this minimum coverage provision comes into effect.

    MR. KNEEDLER: There is no reason to think it's going to — it's going to bankrupt anyone. The costs will be set to cover those — to cover those amounts.

    JUSTICE SOTOMAYOR: I thought that the 26-year-olds were saying that they were healthy and didn't need insurance yesterday. So today they are going to bankrupt the -

    MR. KNEEDLER: Two and-a-half — 2.5 million people would be thrown off the insurance roles if the Court were to say that. Congress made many changes to Medicare rates that have gone into effect for the Congress — for the courts to have to unwind millions of Medicare reimbursement rates. Medicare has — has covered 32 million insurance — preventive care visits by patients as a result of — of this Act.

    CHIEF JUSTICE ROBERTS: All of that was based on the assumption that the mandate was — was constitutional. And if — that certainly doesn't stop us from reaching our own determination on that.

    MR. KNEEDLER: No, what I'm saying is it's a question of legislative intent, and we have a very fundamental indication of legislative intent that Congress did not mean the whole Act to fall if — if -*without the minimum coverage provision, because we have many provisions that are operating now without that.

    But there's a further indication about why the line should be drawn where I've suggested, which is the package of these particular provisions. All the other provisions of the Act would continue to advance Congress's goal, the test that was articulated in Booker but it's been said in Regan and other cases. You look to whether the other provisions can continue to advance the purposes of the Act.

    Here they unquestionably can. The public health — the broad public health purposes of the Act that are unrelated to the minimum coverage provision, but also that the other provisions designed to enhance access to affordable care. The employer responsibility provision, the credit for small businesses, which is already in effect, by the way, and affecting many small businesses -

    JUSTICE SCALIA: But many people might not — many of the people in Congress might not have voted for those provisions if — if the central part of this statute was not adopted.

    MR. KNEEDLER: But that -

    JUSTICE SCALIA: I mean, you know, you're -*to say that we're effectuating the intent of Congress is just unrealistic. Once you've cut the guts out of it, who knows, who knows which of them were really desired by Congress on their own and which ones weren't.

    MR. KNEEDLER: The question for the Court is Congress having passed the law by whatever majority there might be in one House or the other, Congress having passed the law, what at that point is — is — is the legislative intent embodied in the law Congress has actually passed?

    CHIEF JUSTICE ROBERTS: Well, that's right. But the problem is, straight from the title we have two complimentary purposes, patient protection and affordable care. And you can't look at something and say this promotes affordable care, therefore, it's consistent with Congress's intent. Because Congress had a balanced intent. You can't look at another provision and say this promotes patient protection without asking if it's affordable.

    So, it seems to me what is going to promote Congress's purpose, that's just an inquiry that you can't carry out.

    MR. KNEEDLER: No, with respect, I disagree, because I think it's evident that Congress's purpose was to expand access to affordable care. It did it in discreet ways. It did it by the penalty on employers that don't — that don't offer suitable care. It did it by offering tax credits to small employers. It did it by offering tax credits to purchasers. All of those are a variety of ways that continue to further Congress's goal, and — and most of all, Medicaid, which is -*which is unrelated to the — to the private insurance market altogether.

    And in adopting those other provisions governing employers and whatnot, Congress built on its prior experience of using the tax code, which it is -*for a long period of time Congress has subsidized -

    JUSTICE KENNEDY: I don't quite understand about the employers. You're — you are saying Congress mandated employers to buy something that Congress itself has not contemplated? I don't understand that.

    MR. KNEEDLER: No. Employer coverage — 150 million people in this country already get their insurance through — through their employers. What Congress did in seeking to augment that was to add a provision requiring employers to purchase insurance -

    JUSTICE KENNEDY: Based on the assumption that the cost of those policies would be lowered by -*by certain provisions which are by hypothesis — we are not sure — by hypothesis are in doubt.

    MR. KNEEDLER: No, I — I — I think any cost assumptions — there is no indication that Congress made any cost assumptions, but — but there is no reason to think that the individual — that the individual market, which is where the minimum coverage provision is directed, would affect that.

    I would like to say — I would point out why the other things would advance Congress's goal. The point here is that the package of three things would -*would be contrary — would run contrary to Congress's goal if you took out the minimum coverage provision. And here's why — and this is reflected in the findings:

    If you take out minimum coverage but leave in the guaranteed-issue and community-rating, you will make matters worse. Rates will go up, and people will be less — fewer people covered in the individual market.

    JUSTICE ALITO: Well, if that is true, what is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?

    For example, the tax on high cost health plans, which the economists in the amicus brief said would cost $217 billion over 10 years?

    MR. KNEEDLER: Those are — what Congress -*Congress did not think of those things as balancing insurance companies. Insurance companies are participants in the market for Medicaid and — and other things.

    JUSTICE KENNEDY: But you are saying we have — we have the expertise to make the inquiry you want us to make, i.e., the guaranteed-issue, but not the expertise that Justice Alito's question suggests we must make.

    MR. KNEEDLER: Well -

    JUSTICE KENNEDY: I just don't understand your position.

    MR. KNEEDLER: — that's because — that's because I think this Court's function is to look at the text and structure and the legislative history of the law that Congress enacted, not the financial — not a financial balance sheet, which doesn't appear anywhere in the law. And just -

    JUSTICE GINSBURG: You are relying on Congress's quite explicitly tying these three things together.

    MR. KNEEDLER: We do. That's — that's -*and it's not just the text of the act, but the background of the act, the experience in the state, the testimony of the National Association of Insurance Commissioners.

    That's the — that's the problem Congress was addressing. There was a — there was — a shifting of present actuarial risks in that market that Congress wanted to correct. And if you took the minimum coverage provision out and left the other two provisions in, there would be laid on top of the existing shifting of present actuarial risks an additional one because the uninsured would know that they would have guaranteed access to insurance whenever they became sick. It would make the — it would make the adverse selection in that market problem even worse.

    And so what — and Congress, trying to come up with a market-based solution to control rates in that market, has adopted something that would — that would work to control costs by guaranteed-issue and community-rating; but, if you — if — if you take out the minimum coverage, that won't work. That was Congress's assumption, again, shown by the text and legislative history of this provision. And that's why we think those things rise or fall in a package because they cut against what Congress was trying to do.

    All of the other provisions would actually increase access to affordable care and would have advantageous effects on price. Again, Congress was invoking its traditional use of the tax code, which has long subsidized insurance through employers, has used that to impose a tax penalty on employers, to give tax credits. This is traditional stuff that Congress has done.

    And the other thing Congress has done, those preexisting laws had their own protections for guaranteed-issue and community-rating. Effectively, within the large employer plans, they can't discriminate among people, they can't charge different rates. What Congress was doing, was doing that in the other market. If it can't, that's all that should be struck from the act.

    CHIEF JUSTICE ROBERTS: Thank you, Mr. Kneedler.

    In the above, Mr. Kneedler: ". . .employer coverage--150 million people in this country already get their insurance through - through their employers. What Congress did in seeking to augment that was to add a provision requiring employers to purchase insurance."

    Justice Kennedy: "Based on the assumption that the cost of those policies would be lowered by - by certain provisions which are by hypothesis - we are not sure - by hypothesis are in doubt."

    So all of sudden again, the government's contention that the Individual Mandate was about a payment mechanism: Is supported in the matter of the Employer Mandate. The "Affordability" concept of the government's contention actually surfaced on Day Three.

    Then it's back to paragraph one, possibly, above. The market is pre-existing, in which the non-payers can and do participate--as indirect beneficiaries, if not as direct beneficiaries. There is a community of health, not spreading around the plague. The non-payer benefits, but leaves it to others to pay. There is in that manner a special privilege preserved, and without Constitutional Basis, unless the Individual Mandate is preserved. The law applies equally, and equal protection is preserved.

    "Crow, James Crow: Shaken, Not Stirred!"
    (Lands of Many Nations not always feeling privileged by Special Privileges of non-participation--if feeling anything at all, even now(?)!)
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    Last edited: Mar 29, 2012

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