Wednesday, June 29, 2011

US Court of Appeals of the Sixth District: PPACA is constitutionally legit!

Keywords or Terms: Patient Protection and Affordable Care Act (PPACA); US Court of Appeal; Constitutionality of law; Florida Attorney General; National Federation of Independent Businesses (NFIB), Standard of non-severability; rationality Principle

You may wonder, like many Republicans, if the Patients Protection and Affordable Care Act of 2010 is Constitutional. Or perhaps you already wonder if the intrusive nature of some of the provisions in the law make it unconstitutional or undermine the constitutionality of the whole law. Either way, the US Court of Appeals in the sixth district, has resoundingly answered those questions or reservations. Yesterday, the Cincinnati-based court of appeal, chaired by one of the most respected conservative republican judges and one known for ultra respect and preservation of state’s rights, handed down a ruling in support of the constitutionality of the law. Jeffery Sutton, an appointee of President George W. Bush, who once persuaded the Supreme Court to shield States from suits under the federal-bias and disabilities laws, unequivocally said: “Not every intrusive law is an unconstitutionally intrusive law”. In order words, there may be a perception that the Patients Protection and Affordable Care Act is intrusive; however, that intrusiveness does not rise up to the level of unconstitutionality.

At the beginning of this month, the Eleventh U.S. Court of Appeals, sitting in Atlanta, heard argument in a case brought by Florida Attorney General, twenty-five other states and the National Federation of Independent Businesses (NFIB), praying the court to reverse a Pensacola, Florida Federal Judge’s decision, that the mandate provisions of the Patient Protection and Affordable Care Act (PPACA), is unconstitutional. The foundation of their argument hinged on the claim that the Patient Protection and Affordable Care Act (PPACA) violates the Commerce Clause by requiring Americans over the age of 18 to purchase individual health insurance plan by 2014. Are these rulings confusing or conflicting? Wait, here is another dozy: just last month, a federal court of appeals in Richmond, Virginia, heard a combined appeal of two lower courts that have ruled in conflicting ways. While one of the courts struck down the purchase mandate in he Patient Protection and Affordable Care Act (PPACA), the other upheld the act and dismisses a challenge to the law. The way things are going with all these cases, there is hardly any doubt that the ultimate decision regarding where the nation must go from here, will depend on a ruling from the United States Supreme Court.

Many legal luminaries and watchers of the United State Congress observe that the mandate provisions of PPACA and the related insurance regulation are at the heart of the complex legislative compromise that led to the enactment of the whole law. Unfortunately, both of these issues are now lighting rods for opponents of the law. Litigation takes a long time and this is probably the reason why it may take a while before all these cases reach the supreme court, except some unforeseen events arise that will help speed up the process for the highest court of the land to hear the case over the issue of constitutionality or non-constitutionality. If the rulings in the lower courts are anything to go by, we are probably going to see arguments in the likes of why: 1) the standard of non-severability has held up in the past lower court decision; since the court found part of the statutes as unconstitutional, the remaining provisions of the law stand invalidated; 2) the rationality principles uphold with respect to the enactment of the law; in this instance, Congress had a rational basis for concluding that the minimum coverage requirement is essential to the broader reform of health care system; and the place of a wider and pluralistic health insurance is in order in a national market place.

The growing complexity which multiple litigation is bringing to the understanding of the law, including whether the law is constitutional or not, make the heads of ordinary Americans spin. The conflicting confusion not only makes the ordinary American wonder, what’s next, it launches a doubt in their minds as to the good faith effort of congress to enact a responsive health care reform law, in the first place. Further, it makes nearly all the judges in the cases that have already been heard so far over the Patient Protection and Affordable Care Act, second guess themselves, on an issue that impacts about one sixth of America’s economy. Just as many free loaders of the America’s health Care System, prior to the advent of the PPACA, had in-congruently presumed that someone will eventually cover the costs they incurred while receiving treatments in hospital emergency rooms, so also, are judges hearing arguments regarding the constitutionality of the law or its provisions, rely on the US Supreme Court to eventually sort the thorny issues regarding the constitutionality of the law, or more, in the long run.

It is the position of this blog that the Patient Protection and Affordable Care Act has launched a new era in America’s health care system. Essentially, opponents of the health care reform law are engaging in pull-it-down syndrome, just because the law had been passed without a single vote from the Republican Senators and many legislators. While the law makes hospitals, clinics, doctors and allied health professionals accountable, it also demands that health insurance companies invest in the health of average American that they collect premiums from, through lower administrative overhead cost commitment. Insurance Companies know they have a primary duty to improve how they sell health insurance policies to Americans; however, more so during the new reform that is re-shaping health care delivery, the companies realize that they need more consumers of their product to remain solvent. Under this type of scenario, it is difficult for many people to understand the argument that Congress was improperly regulating activity in the health care industry, by passing the Patient Protection and Affordable Care Act.

Many Americans, if not all, agree that the status-quo under the prior health care system is unsustainable; and, there was need for something to be done, if the system was to survive. This something that needed to be done, wasn't limited to the health industry, it included what was going on in the health insurance industry. While many opponents of the law were waiting for someone or a miracle to take place to correct for the inadequacies of the prior health care system and health insurance business, democratic lawmakers under the leadership of the current president, took the bull by the horn and enacted what, for all intense and purpose, is probably the most revolutionary change to the health care system and health insurance industry, in half a century. The problem is tat Republicans do not want to give credit to where credit is due and for this reason, they have continued to engage in retrogressive acts through the courts by attempting to work with judges who maybe sympathetic to their myopic way of looking at the impending reforms to the health care system.

Additionally, the current court decisions have been very explicit, if not too dramatic; regarding how each judge had interpreted the constitutionality of the provisions of the health care reform law. The mandatory changes that haven’t come into effect, seem not to be of paramount concern of these judges, because the prayers from the plaintiff was built on the question of constitutionality of the law as a whole, and sometimes on parts of the law. Where some careful judges, legal observers and lawyers have sided with the constitutionality of many of the provisions in the law, some business owners and their republican friends have used the law as a crouch for why they are hardly going to create jobs in the private sector, as they sit down on over one trillion dollars in their bank account.

The nagging issue of constitutionality of the law was taken heads on, when one of the judges that have ruled in favor of the constitutionality of the reform law, indicated that: “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk.” Asking a broader participation of Americans in the health care system is hardly encroaching on people’s inactivity rights, but rather, a conscious determination, based on experience, that if more healthier group participates in the obviously interstate and inter-regional commerce impacting health care delivery system, then, there is more to be gained by all; not just the few who can only afford health care for themselves, prior to our enactment of the Patients Protection and Affordable Care Act.

At a recent conference of the American Medical Association, over two-thirds of the doctors subscribed to the mandatory participation of Americans in the health care insurance policy market; because for many reasons, physicians find the participation of many Americans as one way to fight the problem of uninsured or under-insured at the gate of health care delivery. Further, this provision, guarantees that many more Americans will be in a position to pay for their care through the carrying of a health insurance policy. The nation had just been getting by under the previous health care system and the unsustainability of the past system was not only going to doom the health care delivery as a whole, it was going to set the nation back on its achievements over the quality of care available to Americans.

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