Wednesday, November 16, 2011

PPACA Challenge: The New Case to be heard by the United States Supreme Court just before the 2012 General Elections!

Keywords or Terms: US Supreme Court; Eleventh Circuit Court of Appeal Ruling; US Congress: Constitutional Argument; PPACA; Medicaid Eligibility; 2012 General Elections; Mandatory Provisions; Congressional Powers;  Democrats and Republicans.

Recently, the United States Supreme Court agreed to hear the challenge to the Patients Protection and Affordable Care Act, an act designed to overhaul the American Health Care System. The agreement was widely covered in the press as a story of resolution – over lower court decisions which have kept everyone wondering if the health care reform law is about to be junked - in the face of antagonism and unwelcome criticisms  of the right of congress to make a law that has a mandatory provision; or, one that requires citizens to obtain or buy health care insurance as a product. But I believe it is a story about the right of the United States Congress to make law.

Did the United States Congress fail to address all the parliamentary procedures for enacting a bill? Did constituent members of congress fail to debate the provisions in the health care reform law in both chambers of congress? Did Congress violate some parliamentary procedures  in either chambers of congress in the process of passing the health care reform law? Did the constitution permit the United States Congress to issue a mandate in a law? Has congress exceeded its constitutional authority by extending the eligibility converge thresholds that States must adopt to participate in the Medicaid program? First, we may be able to get answers to these questions by checking the congressional records. Second, we may be privy to the wheeling and dealing on congressional floors when the highest court of law hears the case over the constitutionality of the health care reform law. Third, we may end up being confused or disenchanted by the effort of critics of the law to bring this case before the highest court in the land, hoping to discredit the whole law as unconstitutional. However, my guess is, answers to all these questions will pit two opposing teams of of brilliant lawyers against each other; and, either will re-affirm congressional authority to make laws or erode the powers of our lawmakers.

Dig past the current acrimony of whether the health care reform law is unconstitutional, unworkable or unpopular, the decision from the United States Supreme Court will show how relevant congressional authority is to the way we live our lives as ordinary Americans. Can our lawmakers actually bind us in a democracy and if they may, why are Americans not taking conscious effort to find all the answers about the past of our lawmakers, their beliefs and convictions, their education and abilities, their sponsors and financiers, and their past experience in leadership and their shortcomings. Why? Answers to these questions and inquisitions about these questions, will allow us make better judgment about who is representing us in congress; who may actually mandate us to do some things that we may not in totality be in agreement with or who is actually serving the public by his or her representation in congress. My premonition is that fear is causing the acrimony over the Patients Protection and Affordable Care Act. Many people in the right would like the Supreme Court to strike down the whole law as unconstitutional; those in the left, seek an alternative ruling that will allow the law to stand. The fear in both cases can either be described from the context that, if the court rules in favor of the constitutionality of the law, Democrats win and by default their leader, President Obama, stands a better chance at the polls in the 2012 General Elections. On the other hand, if the mandatory provision in the law is invalidated and the whole law is found unconstitutional, Republicans win and by default their candidate for the office of the Presidency, whoever it maybe, stands a better chance at unseating the current President.

Delivering a judgment either way, very close to general elections, has the potential or power to tilt the result of the general elections either way. Political Party leaders, who are more interested in preserving their position(s) in congress or the dominance of their respective party in congress, want a favorable ruling for their position from the nine-member judgeship of the Supreme Court. Either leadership group in the respective major parties in the US, do not want their wishes dragged down so close to a general election. Unfortunately, their demands are essentially inconsequential at this time as the Supreme Court, is exerting its prerogative of independence from the two branches of government, executive and legislative branches, by determining to hear the case just few months before the general elections next year. A case has been appealed from the eleventh district circuit court of appeals and the Supreme Court has assigned on its schedule, the month of March 2012, to hear the argument on the case. Whether their potential ruling runs afoul of the interests of either parties or their positions on the health care reform law, is essentially, irrelevant; or as they say in my neck of the woods: "Ain't the judges’ problem!"

Although what I have discussed on the blog tonight seems largely a criticism of the challenge to the mandate provision of the Patients Protection and Affordable Care Act or the choice of the highest court to hear the case on an election year, I do not want to appear unduly despondent about the possible reach of congressional powers in making laws; or, the Supreme Courts’ prerogative to hear the case from the eleventh circuit court at their convenience or just before the general elections. Even if I appear to be in complete support of the law in my past entries on this blog, and by default the mandate provision in the law, I still believe that implicit in this requirement, is the desire to hold down health cost inflation that has been the bane of contention over whether Medicare and or Medicaid can survive another half a century. The ideal situation would remain the need to improve health care delivery to many more Americans and create a better health care system, thereby assuaging the criticisms from many doctors, hospital and professionals in the health care industry; that, what we now have, is an illness treatment industry not a health care system. The point of my argument is that there are good enough reasons to sort out the constitutionality question; however, I have some decrepitude over whether the year of a general election is an ideal time to hear a case like this.

The mandatory provision of the health care reform law answers two central questions to health care delivery in America: 1) how can we challenge insurance companies to cut down on premiums paid by consumers in the effort to manage health care cost inflation? 2) Since the mandate provision of the Patients Protection and Affordable Care Act has been construed as closely tied to two other provisions in the law, one forbidding insurance companies from turning away applicants and another barring the companies from turning away patients with pre-existing condition, how can we make underwriting health insurance policies palatable or somewhat profitable for the insurance companies to want to remain in the business? Consideration of these central questions is rather essential for attorneys arguing un-behalf of the federal government as to constitutionality of the mandatory provision of the law. The government attorneys must be deliberate and spontaneous in their argument before the highest court in the land. To show less spontaneity in argument or failure to close-out the opponents of the law as mischievous and unwholesome in their advancement before the Supreme Court, is to allow trivialities to overtake the substance of the health care reform law.

The benefits of the health care reform law have to be re-asserted before the Supreme Court. Just as the sixteen hour work day was outlawed about a century and a half ago, so must the attorneys for the government, argue that the nation is better-off with a health care system where majority of the citizens of the country are mandated to carry health care insurance than one without, thus leading to the high volume of hospital emergency room traffic. While recognizing that opponents of the law may have some reservations regarding some provisions of the law that hardly justifies the argument that the law or the mandatory provision in the law makes the whole law unconstitutional. The attorneys representing the federal government must insist that there is a long-term benefit to the law; and the opponents of the law have not given the provisions in the law a chance; as many of the provisions in the law that opponents are arguing against are hardly implemented yet; and if not implemented, how can these critics of the law crucify the whole law; or, argue against events and experiences that have not occurred or materialized.

We must not be surprised if the US Supreme Court upholds most parts of the law and still rule against the mandatory provision in the law. The ideal situation is to have the highest court in the land leave intact congressional powers to make law, whether the law has a mandatory provision or not. The court could isolate some parts of the law that thread on constitutionality question and leave it unto congress to issue amendments to take care of the constitutional question of any part of the law, if there is actually, any. The court does not have to rule on hyperbola or hypothetical situation that has not materialized because some of the provisions in the law that are contested have not been implemented. The court usually in cases like this is always ahead of the litigant and defendant and attempts to provide room for possible visitation of issues in the future by congress, where it is essential, and in some cases rule in finality as to the question of constitutionality. Based on the recent ruling from the Washington DC Appellate court, it is possible that the court will rule in favor of the mandatory provision.

There is one more point in this communication which I would like to mention. This is the fact that two days and five and half hours have been set aside by the US Supreme Court to hear arguments from the opposing teams on the act before the court. Attorneys representing the opposing camps are expected to present arguments on the four main issues emanating from the Eleventh District Court of Appeal, Atlanta: 1) Can congress impose individual mandate in the purchase of health care insurance;  2) Can congress demand that State comply with threshold provisions to participate in Medicaid; 3) Can the Patients Protection and Affordable Care Act remain intact, even if parts of it are invalidated on the grounds of constitutionality; and, 4) Does the Anti-injunction Act guarantees the Supreme Court to rule on a case as this. If the tendency is to adjudged congressional powers in lawmaking, an half and half, each from either side is enough to represent their position or fail to justify their grounds. The constitutional provision of the right of congress to make laws, should not take too long to make or debunk. If the issue is to address the mandatory provisions of the law, maybe another thirty minute at most.

The arguments over the mandatory provision of the law will probably tell us two things: 1) Congress has the power to make laws, whether with a mandatory provision or not; Congressional powers to make law are unlimited and in some circumstances, where the provision(s) in the law run afoul of constitutional requirements, there are room for call to amendments to the law, especially, where some of the provisions in the law, have not come to play, or have not been phased in. the fact that attorneys can argue over the extent of congressional powers is in order; however, the fact that the law passed is constitutional or not, is one that may be subject to debate. Where the commonsense argument comes in is simply this: can opponents of a provision in a law argue against it under the question of constitutionality, if the provision has not been implemented? The purpose for which congress make law is to address issue of concern that has been brought before the body as a bill working its way through committee and work groups. Where there are some provisions that are out of line with the constitution, it is probably identified before the law is passed. If there was an omission, it is imperative that observers bring a case before the court as is rightly done in this case. However, if the essence of the issues before the court is to discredit all the provisions of the law in totality, there is probably a suspicious of mischief which the court cannot entertain.

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