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Hunter bates
 

Hunter bates

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Healthcare Reform: Change? Or more of the same?

Healthcare Reform: Change? Or more of the same?

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    Hunter bates Hunter bates Presentation Transcript

    • HEALTH CARE REFORM AND THE FUTURE: Path to Certainty or Road to Repeal?
    • PATH TO CERTAINTY OR ROAD TO REPEAL?• Polls: Is the Public Savvy or Schizophrenic?• Implementation Timeline• Will Congress Strike Down Health Care Law?• What Impact Will 2012 Election Have on Health Care Law?• Will the Courts Strike Down Health Care Law? 2 FEBRUARY 24, 2011
    • AUDIENCE POLL Which of the following do you believe will happen?1. Law will be repealed by Congress before 20122. Law will be repealed by Congress after 2012 Presidential election3. Mandate will be struck down by the Supreme Court, but rest of the law upheld4. Entire law will be struck down by the Supreme Court5. Law will be implemented largely intact 3 FEBRUARY 24, 2011
    • POLLS:IS THE PUBLIC SAVVY OR SCHIZOPHRENIC?
    • HEALTH CARE REFORM “UPSIDE DOWN” APPROVAL Approve Disapprove More Americans disapprove of the health care law than approve. 33 51 5(CBS News 02/11/11-02/14/11) FEBRUARY 24, 2011
    • HEALTH CARE LAW REPEAL OR LET STAND? 14% Vote to repeal Vote to let stand 46% No opinion 40% 6(Gallup 01/04/11-01/05/11) FEBRUARY 24, 2011
    • REPEAL? INDEPENDENTS ARE SPLIT Republicans Democrats Independents 80 60 40 20 0 Vote to Repeal Vote to let stand No Opinion 7(Gallup 01/04/11-01/05/11) FEBRUARY 24, 2011
    • MAJORITY WANTS TO REPEAL ALL OR SOME OF HEALTH CARE LAW 8(Kaiser Family Foundation) FEBRUARY 24, 2011
    • OPPOSE LAW AND OPPOSE DEFUNDING? Approve Disapprove Don’t Know 10% • Cut Off Funding for Health 35% Care Law? 55% 9(CBS News 02/11/11-02/14/11) FEBRUARY 24, 2011
    • OPPOSE LAW AND OPPOSE DEFUNDING 10(Kaiser Family Foundation 01/04/11-01/14/11) FEBRUARY 24, 2011
    • STRONG SUPPORT FOR CONSUMER REFORMS 11(Kaiser Family Foundation) FEBRUARY 24, 2011
    • HATE THE LAW, LOVE THE INSURANCE REFORM• Those who want full repeal - also want to keep insurance reforms • Roughly half of those who want full repeal also want to keep key provisions • 51%: tax credits for small businesses • 49%: prohibit pre-existing conditions • 43%: keep Medicare Rx drug benefits 12(Kaiser Family Foundation 01/04/11-01/14/11) FEBRUARY 24, 2011
    • MANDATE IS MOST UNPOPULAR ITEM 13(Kaiser Family Foundation 01/04/11-01/14/11) FEBRUARY 24, 2011
    • BUT, MANDATE OPPOSITION COULD SOFTEN 14(Kaiser Family Foundation 08/16/10-08/22/10) FEBRUARY 24, 2011
    • OPPOSE MANDATE, BUT VIEW LEGAL CHALLENGES AS POLITICAL 15(Kaiser Family Foundation 08/16/10-08/22/10) FEBRUARY 24, 2011
    • HEALTH CARE REFORM TIMELINE• House passed health care reform (November 7, 2009) • Vote: 220 to 215• Senate passed health care reform (December 24, 2009) • Vote: 60 to 39• Senate passed Reconciliation (March 25, 2010) • Vote: 56 to 43• House passed Reconciliation (March 25, 2010) • Vote: 220 to 207 16 FEBRUARY 24, 2011
    • IMPLEMENTATION TIMELINE
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2010 • Provide tax credits to certain small employers with no more than 25 employees and average annual wages of less than $50,000 that provide health insurance for employees. (effective 03/23/10) • Create temporary reinsurance program for employers providing health insurance coverage to retirees older than age 55 who are not eligible for Medicare. (effective 03/23/10) • Limit the tax deductibility of executive compensation to $500,000 per individual employed by health insurance providers. (effective 03/23/10) 18(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2010 • Require individual and group policies to provide coverage for adult children up to age 26. (effective 09/23/10) • Prohibit individual and group policies from imposing lifetime annual limits on insurance coverage, although certain annual limits may be imposed, as determined by the Secretary of Health and Human Services, on coverage until 2014. (effective 09/23/10) • Prohibit rescission of health insurance coverage, except in cases of fraud or misrepresentation. (effective 09/23/10) • Grandfather existing individual and group plans with respect to new benefit standards, but require grandfathered plans to adhere to some new conditions, including extension of dependent coverage and prohibition of restriction on coverage. (effective 09/23/10) 19(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2011 • Establish a national, voluntary insurance program for purchasing long-term care insurance, known as the Community Living Assistance Services and Supports (CLASS) program. (effective 01/01/11) • Minimum Medical Loss Ratio for Insurers: Health plans must provide rebates to consumers if the share of the premium spent on clinical services and quality is less than 85% for plans in the large group market and 80% for plans in the individual and small group markets. (effective 01/01/11) • Grants to Establish Wellness Programs: Provides grants for up to five years to small employers that establish wellness programs. (funding authorized beginning fiscal year 2011) • States may expand Medicaid enrollment to persons under 65 with incomes up to 133% of the federal poverty level. (beginning 01/01/11; must be complete by 01/01/14) 20(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2012 • Accountable Care Organizations in Medicare: Allows providers organized as accountable care organizations (ACOs) that voluntarily meet quality thresholds to share in the cost savings they achieve for the Medicare program. (effective 01/01/12) 21(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2013 • Create Consumer Operated and Oriented Plan (CO-OP) program to aid development of nonprofit, member-run health insurance companies to offer qualified health plans. (effective 01/01/13) • Increase the itemized medical expense deduction threshold from 7.5% to 10% of adjusted gross income. (effective 01/01/13) • Limit flexible spending account (FSA) salary deferral contributions to $2,500 per year, indexed for inflation. (effective 01/01/13) 22(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2014 • Establish state-based health insurance exchanges. (effective 01/01/14) • Require individuals to have qualifying health insurance coverage or face a penalty (phased in between 2014 and 2016). (effective 01/01/14) • Large employers (51 or more) that do not offer coverage and have at least one full-time employee receiving a premium tax credit • will be assessed a penalty: $2,000 per full-time employee (excluding the first 30 employees from the assessment). (effective 01/01/14) • Large employers (51 or more) that do offer coverage and have at least one full-time employee receiving a premium tax credit • will be assessed a penalty: $3,000 per employee receiving a premium credit • penalty capped at amount employer would pay if they offered no coverage (effective 01/01/14) 23(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2014 • Premium subsidies available to families with incomes between 133-400% of the FPL to purchase insurance through the Exchanges. Cost sharing subsidies are available to those with incomes up to 250% of the poverty level. (effective 01/01/14) • Create essential health benefits package that must be offered by all qualified health benefit plans. (effective 01/01/14) • Allow employers to offer employees premium discounts, waivers of cost-sharing requirements, or benefits that would not otherwise be provided (up to 30% of the cost of coverage) for participating in a wellness program and meeting standards. The Secretary of HHS may increase the discount to 50%. (effective 01/01/14) 24(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • HEALTH CARE REFORM IMPLEMENTATION TIMELINE: 2018 • Cadillac Tax: Impose an excise tax on insurers of employer- sponsored health plans with aggregate values exceeding • $10,200 for individual coverage • $27,500 for family coverage. (effective 01/01/18) 25(source: U.S. Chamber of Commerce’s Critical Employer Issues in the Patient Protection and Affordable Care Act and Kaiser Family Foundation) FEBRUARY 24, 2011
    • A LEGISLATIVE ROAD TO REPEAL?
    • MAGIC NUMBERS U.S. HOUSE218: Simple Majority 292:Veto Override 27 FEBRUARY 24, 2011
    • THE 111TH CONGRESS U.S. HOUSE Republicans DemocratsDuring the 111thCongress, Democratsheld a commandingmajority in the U.S. 179House of 256Representatives. 28 FEBRUARY 24, 2011
    • THE 112TH CONGRESS U.S. HOUSE Republicans DemocratsRepublicans gainedover 60 seats in themidterm electionsgiving them the 193majority in the U.S. 242House. 29 FEBRUARY 24, 2011
    • HOUSE GOP 2010 HISTORIC VICTORY• 2010 represents the largest gain by either party in over 60 years. YEAR SEATS GAINED PARTY 2010 63 seats Republican 2006 30 seats Democrat 1994 53 seats Republican 1980 33 seats Republican 1974 43 seats Democrat 1966 39 seats Republican 1958 48 seats Democrat 1948 75 seats Democrat 1938 71 seats Republican 30 FEBRUARY 24, 2011
    • MAGIC NUMBERS U.S. SENATE 51: Simple Majority 60: End a Filibuster 67:Veto Override 31 FEBRUARY 24, 2011
    • THE 111TH CONGRESS U.S. SENATE Republicans DemocratsDemocrats held acomfortable 18-seatmargin overRepublicans in the 41Senate during the 59111th Congress. 32 FEBRUARY 24, 2011
    • THE 112TH CONGRESS U.S. SENATE Republicans DemocratsRepublicans gained sixseats in the midtermelections, leavingDemocrats with a six- 53 47seat majority. 33 FEBRUARY 24, 2011
    • THE ROAD TO REPEAL? $%()%& !"#$%& 0.$.<"& *>EF& >."5?6&@& A$6,&@& >C(<$D+. & *"++,))%%& :+22"5<" & B"$., & @&E$#+5 & -."*%/,0$& !5@<9CI6 & !5@<9CI6 & 25I964@J7C& 25I964@J7C& *76;&56J8@;5& *76;&56J8@;5& +@<KF#G& +@<KF#G& *7889:55F@GG<7H5>&25I964@J7C& 12"". & *7889:55F@GG<7H5>&25I964@J7C& *"$,/%.(),"& /5?@;5& .3456&*7889:55&65;6&;5<86&=7<&>5?@;5A& 0)0#(,%"5 & B7CD<85>&?E&=344&!7365& :)+%(5"&1GH&-+%",7 & !"#$%"& ())&*+(,"&-+%"&+.&/0)) & *+(,"89".$%"& ())&9".$%"&-+%"&+.&/0)) & 1,023)"&2$4+50%6&%+&3$,,7 & :+.;"5".<"&:+220=""& 1,023)"&2$4+50%6&%+&3$,,7 & 34(Kaiser Family Foundation) FEBRUARY 24, 2011
    • ROAD BLOCK TO REPEAL? OBAMA VETO • HOUSE: • Total number needed for veto override: 292 • 50 Democrats would have to vote against Obama joining all 242 Republicans to override a veto. • SENATE: • Total number needed for veto Override: 67 • 20 Democrats would need to buck their Leadership and the President to join the 47 Senate Republicans in order to override a veto. 35(image source: boulderpsychotherapy.interactivebrain.org) FEBRUARY 24, 2011
    • AGENDA HOUSE REPUBLICANS•Vote on full repeal•Repeal and Replace•Oversight and Investigation 36 FEBRUARY 24, 2011
    • VOTE ON FULL REPEAL U.S. HOUSE• The U.S. House voted on January 19, 2011 to repeal the health care reform bill that was signed into law last year. • Vote tally: 245 to 189 Ayes Noes NV R 242 0 0 D 3 189 1 T 245 189 1 37 FEBRUARY 24, 2011
    • VOTE ON FULL REPEAL U.S. SENATE• The U.S. Senate voted on February 2, 2011 NOT to repeal the health care reform bill. • Vote tally: 47 to repeal v. 51 to let stand Yeas Nays NV R 47 0 0 D 0 51 2 T 47 51 2 38 FEBRUARY 24, 2011
    • HOUSE VOTES TO DEFUND HEALTH CARE LAW• As part of its consideration of H.R.1, the Full-Year Continuing Appropriations Act, 2011, the House voted on several amendments aimed at defunding the health care reform law: • Vote to block funding to the Internal Revenue Service to enforce the individual mandate • Vote: 246 to 182 • Vote block salaries to any federal employee tasked with implementing the health care reform law • Vote: 237 to 191 • Vote to prevent any funds from the Continuing Resolution to be used to implement the law • Vote: 241 to 187 • Vote to ban payments to employees of the Department of Labor and the Department of Health and Human Services to work on the health care reform law • Vote: 239 to 187 39 FEBRUARY 24, 2011
    • HOUSE GOP HOT BUTTON ISSUES• Oversight and investigation • Build support • Expose regulatory process• Stand-alone votes either to repeal or to defund via the appropriations process • IRS reporting requirements • mandate to purchase insurance • Defund new IRS agents charged with enforcing mandate penalties • CLASS Act dealing with long-term care insurance • various PPACA tax increases • grandfathered plans and the right to maintain existing coverage • ensuring that federal dollars are not used to subsidize abortion • Medicare Advantage Cuts 40 FEBRUARY 24, 2011
    • HOUSE GOP REPEAL AND REPLACE1. Enact Medical Liability Reform2. Purchase Health Insurance across State Lines3. Expand Health Savings Accounts • make it easier for patients with high-deductible health plans to use them to obtain access to quality care • repeal the new health care law, which prevents the use of these savings accounts to purchase over- the-counter medicine 41 FEBRUARY 24, 2011
    • HOUSE GOP REPEAL AND REPLACE4. Ensure Access for Patients with Pre-Existing Conditions • expand state high-risk pools, reinsurance programs and reduce the cost of coverage • make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition • eliminate annual and lifetime spending caps •incentivize states to develop innovative programs that lower premiums and reduce the number of uninsured Americans5.Permanently Prohibit Taxpayer Funding of Abortion • establish a government-wide prohibition on taxpayer funding of abortion and subsidies for insurance coverage that includes abortion •enact into law what is known as the Hyde Amendment as well as ban other instances of federal subsidies for abortion services •enact into law conscience protections for health care providers, including doctors, nurses and hospitals 42 FEBRUARY 24, 2011
    • A DEMOCRATIC “DO-OVER” ON REFORM MESSAGE• Real benefits for real people • Secretary of Health and Human Services Sebelius analysis: • as many as 129 million Americans under age 65 have “red flags” that would either block coverage or increase premiums• Most Democrats voted against repeal arguing that the federal deficit would increase: • CBO preliminary score: repeal adds $230 billion to the deficit by: • blocking tax increases, and • blocking cuts to Medicare Advantage. 43 FEBRUARY 24, 2011
    • 2012: A POLITICALROAD TO REPEAL?
    • POLITICAL CLIMATE OBAMA APPROVAL Approve Disapprove Feb. 2011* 48 43 Oct. 2010** 41 50 Jan. 2009*** 68 12* Gallup 02/14/11-02/16/11** Gallup 10/21/10-10/23/10*** Gallup 01/21/09-01/23/09 45 FEBRUARY 24, 2011
    • OBAMA APPROVAL HANDLING OF HEALTH CARE Approve Disapprove Jan. 2011 43 52 •First time in ABC polling: GOP tied with Obama on the question of who do you trust on health care? •Obama 42, GOP 42 •In 2005, Democrats held a 25-point lead over Republicans 46ABC News/Washington Post 01/13/11-01/16/11) FEBRUARY 24, 2011
    • OBAMA APPROVAL •Handling of the Economy •42% of Americans approve of the President’s handling of the economy. •Handling of the Deficit •31% of Americans approve of the President’s handling of spending and the deficit. 47(CBS News 02/11/11-02/14/11) FEBRUARY 24, 2011
    • HEAD-TO-HEAD MATCH-UPS 2012 PRESIDENTIAL ELECTION • In 2012, versus a nameless Republican, Obama ties. Obama Republican Other (vol.) No opinion Feb. 2-5, 45 45 4 6 2011 Feb 1-3, 44 42 3 11 2011 48(Gallup) FEBRUARY 24, 2011
    • HEAD-TO-HEAD MATCH-UPS 2012 PRESIDENTIAL ELECTION Obama Challenger 50 38 25 13 0 Pawlenty Paul Gingrich Huckabee Palin Romney 49(Rasmussen 02/07/11-02/07/11) FEBRUARY 24, 2011
    • 2012 NUMBERS THAT MATTER GDP Unemployment GDP Unemployment Reagan Reagan 4.5% 10.8% 7.2% 7.2% 1983 1984 Obama Obama 3.2% 9.3% 3.3% 8.6% 2011* 2012*(Charlie Cook, National Journal 02/08/11)(* Consensus projections from Clue Chip Economic Indicators) 50 FEBRUARY 24, 2011
    • GOP STRATEGY: RECONCILIATION REVISITED 2013 • Reconciliation Revisited in 24 months (2013): GOP repeal without reaching 60 vote threshold* • Unified in 2010 and 2011 • Pickup 4 Senate seats in 2012 and Hold House Majority • GOP will control redistricting process in states with 195 congressional districts; Dems will control process in states with only 49 districts (Charlie Cook, National Journal, December 13, 2010) • Repeal key provisions with 51 votes in the Senate using reconciliation process • Reconciliation: budget process to address items that have a direct impact on spending and revenues. Reduce deficit by repealing: • Subsidies • Insurance reform provisions • Medicaid expansions 51(KeithHennessey.com) FEBRUARY 24, 2011
    • LEGAL ROAD TO REPEAL:WILL SUPREME COURT STRIKE DOWN THE LAW?
    • LAWSUIT SCORECARD: COURTS UPHOLDING LAW = 2 COURTS STRIKING DOWN LAW = 2• Twenty-four lawsuits have been filed challenging the health care reform law. • mandate to purchase insurance • Medicaid expansion• The two major cases that have received the most attention and are considered most likely to make it to the U.S. Supreme Court are the Virginia and Florida cases. • VA: In a case filed by Virginia’s Attorney General, a U.S. District Judge recently ruled that the insurance mandate is unconstitutional under the Commerce clause, but ruled that rest of the law could stand. • FL: Attorney Generals of twenty-six states have jointly filed a lawsuit challenging the insurance mandate and the Medicaid expansion. Court struck down the mandate as unconstitutional. Found mandate to be non-severable, and thus entire law must fall. 53 FEBRUARY 24, 2011
    • THE CONSTITUTIONAL QUESTION• Doesthe Constitution give Congress the power to mandate the purchase of health insurance? 54 FEBRUARY 24, 2011
    • TENTH AMENDMENT: FEDERAL POWERS ARE LIMITED• Tenth Amendment explicitly states that the Federal government shall have only those powers delegated to it in the Constitution. All other powers are reserved to the states or the people.• Congress does have certain implied powers if a law is “necessary and proper” to “regulate Commerce . . . among the several States.” U.S. Const. art. I § 8, cl. 3. 55 FEBRUARY 24, 2011
    • SUPREME COURT: UNCHECKED FEDERAL POWER FOR HALF CENTURY• Commerce Clause was interpreted to give broad implied powers to Congress from 1937 until the mid 1990s. During this period, Court ruled that federal government could: • Limit growing wheat on a farm, even if the wheat will only be used on the farm. Wickard v. Filburn, 317 U.S. 111 (1942). • “Congress had sought to support the price of wheat in interstate commerce by imposing quotas on supply, and that regulation could not be accomplished if farmers were allowed to grow wheat for personal consumption outside the quotas.” (Testimony of Michael Carvin, Esq., Senate Judiciary Committee, February 2, 2011) • Limit growth of marijuana – even if it will only be used in the home and not sold. • “[t]he production of [a] commodity meant for home consumption . . . has a substantial effect on supply and demand in the national market for that commodity.” Gonzales v. Raich, 545 U.S. 1, 23 (2005) 56 FEBRUARY 24, 2011
    • SUPREME COURT: REVIVED LIMITS ON FEDERAL POWER IN 1995• In1995, the Commerce Clause was revived and Congress’ power was reined in. Court held that “noneconomic activity” could NOT be regulated, even if the activity had a substantial effect on interstate commerce. United States v. Lopez, 514 U.S. 549. • Congress has no constitutional power to: • make it a federal crime to possess guns near public schools. Lopez • make it a federal crime to engage in domestic violence against women. United States v. Morrison, 529 U.S. 598 (2000) 57 FEBRUARY 24, 2011
    • SUPREME COURT: DOES THE PURCHASE OR NONPURCHASE OF HEALTH INSURANCE HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE?• Answer likely turns on how you define what Congress is regulating. 1.Buying health insurance, or 2. Not buying health insurance.• “True enough, insurance is commerce, but not buying insurance is the antithesis of commerce.” Randy E. Barnett, Elizabeth Price Foley, The Wall Street Journal, February 2, 2011 (emphasis added)• CRS and CBO noted, respectively, that requiring the purchase of a product was “novel” and “unprecedented” 58 FEBRUARY 24, 2011
    • OBAMA ADMINISTRATION: DECISION TO PURCHASE SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE• Minimum coverage provision is constitutional because: a. It regulates activity that “substantially affects interstate commerce.” • Health insurance decisions are unique because everyone will eventually need and use health care. Absent the mandate, the cost will be shifted to others, thus substantially affecting commerce. 59 FEBRUARY 24, 2011
    • OBAMA ADMINISTRATION: MANDATE IS “NECESSARY AND PROPER” TO REFORM HEALTH INSURANCE MARKETb. It is a “necessary and proper” part of a comprehensive regulation of interstate economic activity. • Mandate is a necessary and proper means of carrying out reforms in the health insurance market. Reforms will be too expensive if everyone is not required to carry insurance. Mandate is necessary to prevent “free-rider” problem. 60 FEBRUARY 24, 2011
    • FL DISTRICT COURT: FEDERAL GOVERNMENT HAS NO POWER TO REGULATE INACTIVITY• Federal Judge Roger Vinson in Florida agreed with the attorneys general of 26 states that the individual mandate was not a proper exercise of federal power, and thus, was unconstitutional under the Tenth Amendment. a. The federal government does not have the power to regulate inactivity under the Commerce Clause. • The absence of commerce cannot be a regulation of commerce. “If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain.” • Congress cannot “regulate inactivity by mandating that Americans enter into contractual relations with a private company for the rest of their lives . . . “ (Randy E. Barnett, Testimony to the Senate Judiciary Committee, February 2, 2011) b. The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. Individual mandate is not within the letter or the spirit of the Constitution. • “Supporters of the individual mandate have not been able to identify a single historical example of an affirmative duty of citizens to enter into private contracts for the benefit of other private parties.” (Carvin, Testimony to the Senate Judiciary Committee, February 2, 2011) 61 FEBRUARY 24, 2011
    • OBAMA ADMINISTRATION: HOPE FOR HELP FROM SCALIA?• In Gonzales v Raich, 545 U.S. 1 (2005), Justice Scalia seemed to offer support for regulating noneconomic activity, if it is part of a broader regime of comprehensive regulation.• Case involved whether federal government could limit/regulate sale of medical marijuana that was grown for medicinal use by the owner, and not sold.• Court upheld regulation because "the production of [a] commodity meant for home consumption ... has a substantial effect on supply and demand in the national market for that commodity."• Scalia: "Congress may regulate even noneconomic activity if that regulation is a necessary part of a more general regulation of interstate commerce." (Concurring opinion at 17).• *Counter: Scalias opinion was a concurring opinion and not binding.  "[T]he notion that Congress can regulate anything that is an essential part of larger regulation is not the law." ( testimony of Michael Carvin, Senate Judiciary Committee, February 2, 2011) 62 FEBRUARY 24, 2011
    • SEVERABILITY: IF MANDATE FALLS, DOES THE REST OF THE LAW FALL?• FLCase: Judge struck down the mandate, but, unlike the VA case, also found that the mandate was fundamental to the new law, and thus, struck down entire law. • “In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed.” • “There are simply too many moving parts in the Act and too many provisions dependent on the ... mandate .... The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.” • Congress removed severability clause in final version of the law. 63 FEBRUARY 24, 2011
    • STATE CHALLENGES TO HEALTH CARE REFORM LAW• Legislators in nearly every state have filed legislation to block health care reform. • Constitutional amendment to prohibit mandates to purchase health insurance• Republicans made historic gains at the state legislative level: highest point since 1928.• The following state houses flipped from Democrat to Republican in 2010: • Alabama House and Senate (first time since reconstruction), Indiana House, Iowa House, Maine House and Senate, Michigan House, Minnesota House and Senate, Montana House, New Hampshire House and Senate, North Carolina House (GOP has not controlled since 1870) and Senate, Ohio House, Pennsylvania House, and the Wisconsin Assembly. 64 FEBRUARY 24, 2011
    • STATE LEGISLATURES POST-2010 ELECTIONS 65(source: NCSL.org) FEBRUARY 24, 2011
    • STATE CHALLENGES TO HEALTH CARE REFORM LAW• Pre-election day: 26 Democratic Governors, 23 Republican Governors, 1 Independent Governor• Post-Election Day: 20 (-6) Democratic Governors, 29 (+6) Republican Governors, 1 Independent Governor• Of the 37 gubernatorial races, the GOP won 23 races, Democrats won 13, and Independents won 1.• GOP now controls a majority of 2012 swing states: • Arizona, Florida, Iowa, Michigan, Nevada, New Mexico, Ohio, Pennsylvania, Wisconsin 66 FEBRUARY 24, 2011
    • GOVERNORS POST-2010 ELECTIONS 67(source: NCSL.org) FEBRUARY 24, 2011
    • IMPLEMENTATION OR REPEAL?• Implementation • House GOP will seek to repeal/replace • 2010: insurance industry reform • insurance mandate • pre-existing conditions • IRS reporting mandate • rescissions • Medicare Advantage cuts • lifetime annual limits • Magic Numbers: 67 in Senate and 292 in House • 2011: minimum medical loss ratio • Major repeal will not survive Presidential • 2014: exchanges & mandate/penalty veto. Compromise is likely only on small • 2018: cadillac tax issues like IRS reporting requirements.• Polls show continued opposition to reform • Final Word on Repeal law, but division over repealing the law • GOP will have to wait until 2012 election. • Obama’s popularity is moving back up, but Need 4 Senate seats or White House + 3 he is tied with GOP on handling health care Senate Seats • insurance mandate: the US Supreme Court ultimately will decide constitutionality of reform law 68 FEBRUARY 24, 2011