Is the EMPLOYER Mandate in Obamacrap Constitutional?

First, watch this:



In a recent post, I noted:

"I am not a Constitutional lawyer, and apparently neither is Obama or members of Congress, but it would appear to me that if the INDIVIDUAL mandate (requiring individuals to buy health insurance or pay a tax) is unconstitutional, then the same should apply to the EMPLOYER mandate."

That seems like a pretty obvious conclusion to me, especially watching that video, but Hank and I came to realize that it's not obvious to everyone. He asked two well-known health policy experts, Avik Roy (who also tipped us to the great video above) and Michael Cannon about their thoughts on the constitutionality of the Employer Mandate.

Michael felt that "the employer mandate is more likely to withstand challenge because the employers are already engaged in a form of economic activity."

Avik offered the same analysis, although with a bit more detail: "There is a big difference between the individual mandate and the employer mandate, unfortunately ... In all previous rulings related to the Commerce Clause, you had to be doing some activity in order to be regulated ... Employers, by contrast, can "opt out of" the employer mandate by closing down their businesses ... Think of all the other mandates employers face (OSHA, EPA, etc etc)."

With all due respect to these very bright guys: I don't think so.

For one thing, if we're going to use their definition of "commerce," then everybody engages in it: we buy gasoline that's trucked over interstate highways from state to state, Hank buys Georgia peaches in Ohio, the list goes on. So merely invoking the seemingly magical phrase "interstate commerce" becomes useless in this instance.

And there's a big difference between OSHA requirements, which require employers to provide safe working conditions but doesn't tell them which brand (or color!) of safety goggles to buy their employees. This is a far cry from requiring not only that an employer provide access to health insurance, but even what kinds of plans can - and can't - be offered.

Unless, of course, HHS grants a waiver.

The point is that the Employer Mandate is simply the other side of the Individual Mandate coin: Congress and the courts have used the Commerce Clause to PROHIBIT certain business actions, I don't see a reference to laws or decisions that REQUIRE businesses to do something they are not already doing.

Prior use of the commerce clause has not (as far as I know) required the employer to purchase items or services that would adversely affect their bottom line. In the case of the discrimination suit, NOT serving blacks DID have an adverse effect on the bottom line and ADDING blacks to the mix (so to speak) actually IMPROVED their bottom line.

Further, there are no known instances where the government used the commerce clause to require an employer to purchase a specific good or service that was substantially different from what they already were buying. And failing that, there were no tax penalties associated for non-compliance.

If a restaurant chooses to use beef graded as Choice, there are no requirements that they must only offer Prime or else be taxed for non-compliance.

Any abuse of the commerce clause requiring an employer to purchase something that has a negative impact on profits has not been evident under cases brought before the Supreme Court according to my research. It seems pretty obvious, then, that the Employer Mandate is no more valid than the Individual version.

HHS Sebelius Throws the Poor Under the Bus

In order to "help" states save money when Obamacrap expands the Medicaid roles by 16 million people, HHS Sebelius gave states the right to cut benefits as a cost saving measure.

The folks at New York Times give us this tidbit.

While state Medicaid programs must cover hospital and doctors’ services, Ms. Sebelius said, many other services are classified as optional. The optional services, she said, include prescription drugs, physical therapy, respiratory care, optometry services and eyeglasses, dental services and dentures.

I am all about saving money, and while one may argue that any medical service is a necessity, I would submit that dental and speech are nice benefits but not totally necessary. There are plenty of people with full time jobs that don't have dental or vision insurance.

As for eliminating coverage for prescription drugs, one has to wonder why seniors on Medicare were given a drug benefit in 2006 after going for years without one, and now Medicaid says poor people will have to buy their own meds.

Given the way Medicare Part D (prescription drug coverage) operates, I fail to see that as a real benefit for most but I also realize some will disagree.

But I have to question the logic behind improving benefits to seniors for Medicare Part D while cutting benefits for the same coverage when it comes to the poor. Is Washington now deciding who is more deserving of prescription drug coverage?

“Just 1 percent of all Medicaid beneficiaries account for 25 percent of all expenditures,” Ms. Sebelius said, and 5 percent of the recipients account for more than half of Medicaid spending.

Well there you go.

Find those 1 and 5 percenters and kick them off the plan.

Seriously, those numbers are not just indigenous to Medicaid. You will find similar inequities in any health insurance program for individuals under the age of 65.

In addition, Ms. Sebelius said, states could save large sums by reducing premature births and medically unnecessary Caesarean sections, by reducing hospital admissions and by using proven techniques to improve the care of children with asthma.

I can't speak for other states, but over half of all births in Georgia are paid for by taxpayer dollars through the Medicaid program. Many of those are unmarried females under the age of 20.

Many who deliver here under Medicaid are not US citizens and they pay little if any taxes.

As difficult as these decisions may be, the few that actually do pay taxes in this country cannot continue providing unlimited medical care for anyone in this country legally or otherwise.

Differently-abled

I normally avoid politically-correct terminology, but this is a special circumstance. My good friend (and erstwhile college roomie) has a new blog, focusing on how the TSA treats the differently-abled. It seems that HHS Secretary Shecantbeserious is engaged in a friendly battle with sister cabinet member DHS Secretary Incompetano: who can harm the most Americans?

"Safe Traveler" is a retired police officer, with over 20 years faithfully (and courageously) serving his community. He's also the owner of a (relatively) new steel hip, and the special ID card which came with it. The hip seems to be working fine; the card, not so much.

He's started a blog to highlight the unreasonable treatment being visited upon those in similar straits. It's called, appropriately, Maintaining Dignity. And it doesn't get simpler, or more important, than that.

Cavalcade of Risk #124: Call for submissions

Dr Jaan Sidorov hosts next week's roundup of risk-related blogetry. Submissions are due by Monday (the 7th), and must include:

■ Your blog's url
■ Your post's url
■ The post's trackback URL (if available)
■ A (brief) summary of the post

And PLEASE remember: ONLY posts that relate to risk (not personal finance tips and the like).

You can submit your post via Blog Carnival or email.

NB: The Cav is about risk, but not necessarily or exclusively about insurance. So feel free to think outside-the-box, risk-wise.

CLASS(less) or Clueless?

We've written before about ObamaCare©'s new CLASS long term care benefit. While we wait to see whether or not the "legislation we had to pass to see what's in it" is tossed, it seems worthwhile to further dissect this particular piece of it, as further proof that the folks who wrote it have no real-world experiences from which to draw.

John Hancock, one of the major players in the LTCi market, has a neat instructional site that offers interactive tools and in-depth explanations of the CLASS Act; for those who wish more details, the Act itself is available here.

The plan design is pretty simple: there's either no waiting period or a five year waiting period, depending on how one looks at it. Benefits are payable for life ("unlimited"), and family-provided care is eligible for reimbursement. On top of that, the plan's guaranteed issue and, since it's employer-based, premiums are eligible for payroll deduction.

But wait a minute: aren't we supposed to be moving away from employer-based insurance coverage? Oh, well, consistency hasn't been a hallmark of ObamaCare© thus far, why should this be any different?

Enrollment eligibility is limited: one must be at least 18 years old, and one must work for at least 3 years before being eligible to enroll.

But wait another minute: isn't 26 considered "adult" now? Why would a kid buy into this plan? And what about child labor laws regarding 15 year olds?

The benefits are not exactly, um, generous: $50 a day, which may grow (based on the CPI) to a whopping $75 per day. It gets better, though: one must be enrolled for at least 5 years before being eligible for benefits, rendering the "no elimination period" promise worthless.

The good news is that the plan will roll out in 2012.

Or 2013.

Or 2014.

No one really knows, which is encouraging.

And speaking of uncertainty, think about this: a plan that's guaranteed issue, with (ostensibly) no waiting or elimination period and "unlimited" benefits is not exactly a candidate for "most stable rates." In fact, the only real "certainty" is that rates will increase, perhaps quickly and dramatically, as those least able to find real long term care insurance (LTCi) flock to the government plan. Oh, and one more: it's not clear that these plans will be Partnership Qualified, either. Which makes sense: you wouldn't want one government health care scheme coordinating with another one, would you?

Nah.

Health Wonk Review is up

HWR coordinator Julie Ferguson does the honors this morning, as she presents this edition of the best of health wonkery. Grab a mug of hot cocoa and prepare to be enlightened.

Big Bucks for LTCi

Long Term Care insurance, that is. And no, I'm not talking about premiums:

"The top 10 U.S. long term care insurers paid about $11 million in daily benefits in 2010, according to the American Association for Long Term Care Insurance."

That's a better than 50% increase over what was paid out just 3 years ago, and with some ten thousand Boomers hitting age 65 each and every day now, that number's not going down any time soon.

And be sure to read Herman Bruns' excellent explanation of when you should be considering this valuable coverage.