1. Limits on the Commerce Clause
As an attorney, I was fascinated by the discussion on the limits of the Commerce Clause. In two years, we’ve moved from Nancy Pelosi asking “Are you kidding me?” when a reporter questioned whether the ACA was constitutional to a very serious debate in the Supreme Court over whether the federal government can require its citizens to purchase a product from private insurers.As a conservative, I want to limit the intrusion of government – particularly the federal government – in the lives of Americans. The Constitution enumerates certain powers for the federal government, and reserves all other powers for the states or for individuals. Where are the limits of the Commerce Clause? We should find out something in June.
2. The Desirability of Uniform Benefit Plans
However, much as I would prefer to see limits on what the government requires of its citizens, as a former administrator of health and pension plans for a corporation with employees in all fifty states, I recognize that uniformity makes plan administration much simpler.
Using the states as a testing lab for different healthcare reform options – as Republicans have been arguing – complicates plan administration significantly. The Employee Retirement and Income Security Act (ERISA) has a strong preemption clause, which permits companies that self-insure to develop national benefit programs. As a plan administrator, I appreciated ERISA’s preemption clause.
By contrast, companies that have a fully insured product must meet a variety of state mandates and other insurance regulations. Most businesses that have fully insured health plans have very little ability to opt out of state requirements they don’t like or think are too expensive, such as infertility treatments or organ transplants.
One thing to watch as the Department of Health & Human Services issues regulations under ACA is how onerous the requirements will be on all health insurance plans. We’ve seen one situation recently – the inclusion of birth control and abortificants as mandated preventative health care for women. The more treatments that are mandated under ACA, the more expensive health care insurance will be for all of us.
Uniformity is nice, but so is the ability to choose a plan that makes the most sense for the individual.
3. De-Linking Health Care from Employment
As a conservative and a benefit plan administrator, I would prefer that health insurance not be associated with employment. Obviously, that would have eliminated the Benefits Department where I worked for a portion of my career, but it would have permitted my company to focus its attention more on the needs of the business and less on the rising cost of employee benefits. When the CFOs of companies spend as much time on tweaking their employee health care plans as on financing product and equipment improvements, something is wrong.
On the other hand, I recognize that a major reason that the health care system works today is that employers subsidize their workers’ health insurance. Employers get away with offering the same price to everyone – one of the requirements the ACA attempts to impose – because they subsidize the cost.
Younger employees are willing to buy into employee health insurance plans because of the subsidy which makes it worth their while (and, of course, older employees get an even better deal). In smaller businesses and non-profit employers, which cannot subsidize their employees’ costs to the same extent that large businesses can, employees are less likely to buy into insurance at work. They get coverage through a spouse’s employer or they do without health insurance.
4. It’s Not Over till It’s Over
So what will the Supreme Court do? What will Congress do after the Supreme Court decision, whichever way it lands?
No matter what, there have been too many questions raised about the Affordable Care Act in the last two years. The 2,700 pages enacted in March 2010 will not remain intact.
What are your predictions?
An interesting blog. All of your logic focuses on the benefits exhibited in the ACA and none on the validity of conservative principles opposing it. You could have perhaps expounded on how fragmented state and local elected officials and bureaucracies are more efficient, less corrupt, easier to police, and inherently focus on the rights of individuals.
ReplyDeleteAlternatively, you could argue for the infallibility of the Constitution as a conservative dogma, akin to the infallibility of the Pope as mandated by the Catholic Church in the late 19th century.
As you say, we’ll see which way Justice Kennedy will sway in June. After all, isn’t the Supreme Court, as an extension of the Constitution, also infallible and not dependent upon the luck of the draw in the balance of conservatives vs. liberals at the time of important cases?
Whatever your conclusions, I appreciate your fair and balanced discussion.
Mike, thank you for your comment.
DeleteI could have written much more on the ACA, but chose to keep the post focused on how my professional background has influenced my opinions about this controversial law, and how some of my opinions conflict with each other.
As I said, as a benefits administrator, I see advantages to national uniformity in healthcare law, though I’m not sure the nation is ready for the hard political choices that uniformity will require. Some would argue those choices were made with passage of the ACA, but the text of the ACA was actually a hodge-podge of what could pass the Senate before Scott Brown was elected in Massachusetts, and the House then had to pass the Senate’s version to get any healthcare law on the books at all.
I disagree with your points about the infallibility of the Constitution and the Supreme Court. First, the Constitution is the foundational document of our nation. It is not conservative dogma or liberal dogma. There is much in it that both today’s conservatives and today’s liberals object to – we simply object to different interpretations of different parts. The solution for both conservatives and liberals is to pursue the amendment process if they feel so strongly.
With respect to the Supreme Court, it has been settled law since Chief Justice John Marshall wrote the opinion in Marbury v. Madison in 1803 that the Supreme Court is the final arbiter of Constitutional interpretation. However, the Supreme Court has never declared itself infallible. Although following precedent is a strong principle for judicial interpretation, the Court has reversed itself many times over the years. Hardly a mark of infallibility.
Sara