Our conversation also highlights that even within the market movement there remains a great deal of disagreement about the best way to reform our health care system. Mr. Butler was an early supporter of an “individual mandate” that required the purchase of health insurance, a position he now has largely rejected but does distinguish from the mandate as passed in the Affordable Care Act.

But the main reason we invited Mr. Butler on the program was to talk about his “Medicare Advantage for All” proposal, which he recently published in the Journal of the American Medical Association. Mr. Butler explains what he means by “Medicare Advantage for All” in the podcast, but to be plain (and perhaps unsurprisingly), I disagree with the idea. I don’t think American patients are well served by the government “designing” a health care system that relies more and more on third-party, government-financed and government-controlled coverage for the vast majority of our health services. Proponents of free market-reforms should, I think, focus most of their efforts on expanding supply to meet public demand for health services, and we’ve certainly talked about those options at length and for some time.

In the podcast, we also talk about Medicaid expansion and proposals for changing how Medicaid is administered. As a general matter, I think Mr. Butler is more optimistic about the prospects of the federal government delegating control more definitively to states to control costs and manage the Medicaid program. I’m not so optimistic. In light of the federal government’s Lucyball treatment of state waiver proposals in both Republican and Democratic administrations, I’m not nearly as hopeful as Mr. Butler when it comes to believing states will be allowed to innovate in the program. All of that said, Mr. Butler provides an important perspective that is already part of a larger debate on the future of American health care.

Mr. Butler’s perspective may not be your philosophical cup of tea, but if it isn’t, rest assured that you’ll have plenty of other flavors to digest in the weeks ahead. In the next few days, we’ll be sitting down with Michael Cannon of the Cato Institute and Christopher Pope of the Manhattan Institute to talk about the future of health care in this country, with more guests planned. We hope these podcasts are informative, and we invite your feedback and ideas.

The post Agreeing and Disagreeing on Health Care Reform appeared first on Show-Me Institute.

Congress approved a sweeping $1.5 trillion tax bill on Wednesday that slashes rates for corporations, provides new breaks for private businesses and reorganizes the individual tax code.

The Senate passed the GOP bill early Wednesday morning and the House then voted on it for a second time to fix technical problems with the legislation, the final step before it’s sent to President Donald Trump for his signature.

According to the Tax Policy Center, 8 out of 10 Americans will see their taxes reduced under the finalized bill, including the vast majority of middle income earners. It also sounds like entitlement reform could be coming soon to pair any long-term revenue reductions from this tax relief with long-term spending reductions, as well. Entitlement reform should have happened with or without tax reform, obviously, but that the two issues are being talked about in the same breath now is a positive development for supporters of good, sustainable governance.

But let’s not forget one other big development in the tax reform bill: starting in 2019, the end of Obamacare’s mandate penalty/tax.

The individual mandate was included in ObamaCare in part to draw young and healthy people to sign up for insurance in the marketplaces as a way to offset the costs of older and sicker enrollees.

Still, not everyone agrees that the measure has worked as intended, with some saying the mandate hasn’t been as effective as originally thought to entice people to buy health insurance.

“Today, we’re turning Obamacare from a mandatory program into a voluntary program and providing additional tax relief for the millions and millions of Americans who have chosen and will choose not to buy a government-mandated product that for them provides not the value that they want,” Sen. John Barrasso (Wyo.), the No. 4 Senate Republican, told reporters on Tuesday.

To me as a Millennial, the functioning of Obamacare’s mandate was a particularly objectionable piece of that bill that used younger, generally poorer Americans to subsidize everyone else in the individual market. It’s why so many young people instead risked not getting the insurance at all, especially as the premiums on the plans available to them exploded year after year. 

In the end, while I’d like to have seen more from the bill—and frankly, more from this year, including a full repeal of Obamacare—the passage of the TCJA is a welcome win in what could otherwise have been a dicey year for supporters of free market reform. 

The post Tax Cuts And Jobs Act Passes appeared first on Show-Me Institute.

Twenty North Dakotans have enrolled for health insurance through the new federal health exchange, according to figures from the three North Dakota companies offering coverage on the marketplace.

The online marketplace at healthcare.gov, where health insurance is sold, is a key aspect of the health insurance law signed by President Barack Obama commonly known as Obamacare. It has been plagued by traffic issues and widespread glitches since it went live about three weeks ago.

So far, there have been no reports of the enrollment numbers in Missouri, at least to my knowledge. I have reached out to the insurers who are in the Missouri exchange and hit a brick wall when it comes to actual numbers. HHS records suggest there are technically four insurance providers in the Missouri exchange: two affiliated with Blue Cross Blue Shield, and two affiliated with Coventry. (Because affiliates don’t really compete with one another, consumers are effectively left with only two insurer options in each county, in general.) Both Blue Cross affiliates — Anthem Blue Cross and Blue Shield, and Blue Cross and Blue Shield of Kansas City — said that they will not be releasing their numbers. I have yet to receive a return call from either Coventry affiliate.

While we wait, the email I received from Anthem is below. It pretty well summarizes the position of Blue Cross.

Anthem Blue Cross and Blue Shield in Missouri’s parent company has just begun to receive confirmation of enrollment in the federal exchanges from CMS. Although it is too soon to provide Missouri enrollment details at this time, we have seen unprecedented call volumes and heavy web traffic for our exchange plans which is consistent with the experience reported by some state exchanges. We believe consumers will continue to be attracted to our trusted brand name and quality product offerings on the exchanges.

Deb Wiethop
Communications Director
Anthem Blue Cross and Blue Shield in Missouri

Naturally, “volume” and “web traffic” aren’t “enrollment,” so it looks like the actual enrollment figures will remain unknown. Why insurers are so unwilling to release the numbers is a subject of considerable speculation, but if Thursday’s movement toward a delay of the individual mandate is any indication, North Dakota’s enrollment experience may not be unique.

The post How Many Missourians Have Gotten Coverage Through The Exchange? Insurers Keep Mum appeared first on Show-Me Institute.

In a surprise conclusion to a constitutional showdown, Chief Justice John Roberts joined the Supreme Court’s four liberals Thursday to uphold the linchpin of President Barack Obama’s health plan, the individual mandate requiring citizens to carry insurance or pay a penalty.

By a 5-4 vote, the court held the mandate valid under Congress’ constitutional authority “to lay and collect Taxes” to provide for “the general Welfare of the United States.” The penalty for failing to carry insurance possesses “the essential feature of any tax,” producing revenue for the government, Chief Justice Roberts wrote.

It is difficult to understate the importance of this ruling, now and for the future. In the short term, the core of the Affordable Care Act stands, meaning Americans will still be subjected to one of the most coercive and leviathan government programs enacted in recent memory. Tens of millions will likely lose their current insurance plans, and young people will be especially affected by the law’s provisions. But the Court has also found that the mandate is a tax, meaning that repeal of the law could be as easy as passing a budget bill without the mandate, or the law, in it.

The long-term effects, however, are not irrelevant here. The Supreme Court also found that there was no constitutional basis for the mandate under the Commerce Clause. There are, as it turns out, limits to what the government can regulate under Article I Section 8 of the Constitution. That is a positive thing. Also, the provisions that forced states to expand their Medicaid programs were deemed impermissible under Congress’s spending power, meaning states will not have to choose between expanding their Medicaid eligibility or losing federal funding for their entire Medicaid programs. Those two findings from a policy standpoint are successes, although under the current disappointing circumstances may not seem all that apparent.

This outcome stands as a huge disappointment, but this is not over. Now the solution for turning ACA back has moved in a decidedly legislative direction. Elected officials will have plenty on their plates to consider over the next year when it comes to keeping or spiking the health care law.

After all, according to the justices, Congress enacted a gigantic tax when they implemented ObamaCare. The question now is whether Americans want to pay it.

The post Thoughts On Today’s Supreme Court Decision appeared first on Show-Me Institute.

Modern jurisprudence has increasingly allowed the federal government to regulate commerce that is not of an obviously interstate nature. The issue here is that PPACA goes further and regulates the non-purchase of a good or service. Rather than simply regulating the manner in which the health insurance market will operate, PPACA requires that everyone in the country buy something, or be fined. Under this paradigm, market participation would no longer be required for regulation under the Commerce Clause; instead, and in a very real way, the feds would subject you to a purchase requirement merely for being a living, breathing American.

That is a problem. Having a health insurance plan makes sense, but compelling Americans to buy a health insurance plan through heavy-handed federal coercion is awful policy and arguably unconstitutional. Reading into the U.S. Constitution a federal right to demand purchases from its citizens would eviscerate many of the limits on government power enshrined in that document.

If the federal government can require individuals to purchase health insurance, what can’t the federal government require us to purchase? Ilya Somin, a law professor at George Mason University who has filed a brief with the court, contends that if PPACA passes constitutional muster, then Congress could pass “a broccoli mandate, a car-purchase mandate, really any other mandate that you’d want.” Where is the line against such coercion drawn if not by the plain meaning of the Constitution?

Proponents of PPACA have dismissed the suggestion that the federal government would impose a “broccoli mandate,” arguing that the federal government would never try to expand a mandate to purchase goods and services into such areas. But Americans should not have to entrust their freedoms to the word of politicians and bureaucrats, well-meaning or not.

There is no “just trust us” clause in the Constitution. The Constitution is the check that keeps capricious leaders from doing capricious things, and should remain so.

The post Previewing Day Two Of Health Care Reform Oral Arguments appeared first on Show-Me Institute.

Each day will focus on a different aspect of the law being challenged. The order of oral arguments, according to the Washington Post, is as follows:

• Monday: The Anti-Injunction Act (AIA)
• Tuesday: The individual mandate
• Wednesday: Severability, Medicaid expansion

The first session will deal with whether the penalty for not obtaining health insurance is a tax. Under the Anti-Injunction Act, the government typically must levy a tax before it can be challenged. If the Court finds that the PPACA penalty is in fact a tax, the earliest anyone could challenge it would be after it is imposed, which would be 2015 — the year after the mandate goes into effect. Such a ruling might frustrate PPACA supporters and opponents alike, as the law would remain in limbo for several more years, or until Congress changes the law.

Both the government and the states now agree that the penalty is not a tax, and although it is not especially likely that the Court will conclude that the AIA would prevent the Court from reviewing the law at this time, it still could happen. Moreover, the AIA issue, despite its questionable merits, does have a certain appeal. If the Court wants to avoid a highly-charged election-year ruling, this issue would provide a handy escape hatch for the Court.

The post Previewing Day One Of Health Care Reform Oral Arguments appeared first on Show-Me Institute.

Although Koster says that the individual mandate is unconstitutional, he also says that it’s severable from the rest of the law. In other words, Koster believes that the federal health care law can remain in place even though the individual insurance mandate can be struck down.

Judge George Vinson went further in his ruling. He ruled that Congress does not have the power to force people to buy something that they don’t want, and therefore the entire law must be declared void.

I understand that many people object to the regulation because of the individual mandate. However, there are additional reasons to oppose this law in Missouri. With or without the individual mandate, the PPACA will raise the cost of health care in Missouri by increasing mandates to cover specific conditions and expanding the eligibility requirements for Medicaid. This component of policy will burden state budgets and threaten state sovereignty. In order to come up with the cash, Missouri will have to raise taxes, cut services, or both.

Koster’s decision to file an amicus brief may be partly due to the Show-Me Intitute’s prodding. Encouraging him to join the lawsuit is a topic that we’ve tracked closely. Show-Me Institute staff have released an open letter, an editorial, an “urgent call for action” via email, and several blog posts on the subject.

The post Attorney General Chris Koster’s Amicus Brief Only Goes Halfway appeared first on Show-Me Institute.

Many attorneys general have provided direction in their own states, but this group does not include Missouri Attorney General Chris Koster. By keeping quiet on the issue of enforcing the federal health care law, Koster increases the uncertainty in Missouri to a level above that in other states, which hurts business development.

When the government enacts policies that extend its authority to new areas, such as the impending health care regulation, it creates an unknown environment. Economists call this, “regime uncertainty,” a concept developed by the economic historian Robert Higgs. Because the health care regulation is so complex and convoluted, members of the business community are left scratching their heads. Instead of growing their businesses, they will spend time and resources figuring out how to comply.

Regime uncertainty has real, immediate effects for economic activity. It leads businesses and individuals in the private sector to hesitate to make investments or hire additional people. Koster’s silence also makes it difficult for government agencies in Missouri to plan for the future. As officials develop budgets, they need to know whether and how to allocate resources to comply with the health care regulation. The operations of multiple state agencies in Missouri would be impacted by the potential invalidation of the health care law.

Many experts expect that the question of whether the health care regulation is constitutional will go all the way to the Supreme Court. In the meantime, Missouri is in a state of limbo. Regardless of whether a higher court overturns the law in the future, businesses, lawmakers, and individuals in Missouri need to know how to act in the present. Do they need to adhere to the federal health care regulation, or don’t they? As the Republican leadership recently posited, “Must state officials follow its unconstitutional dictates, or should we ignore them as we see the top officials of other states doing?”

Koster didn’t sign onto the multistate lawsuit in Florida, despite having ample opportunity, along with resolutions from the state legislature, the will of the electorate, and his fiduciary duty to consider. The 26 attorneys general who signed onto the lawsuit in Florida have demonstrated that they find the federal takeover of health care to be unconstitutional. Missourians are left to wonder, what does Koster’s hesitation indicate? Does he support the lawsuit or oppose it?

What do we do now, Mr. Koster?

Christine Harbin is a policy analyst for the Show-Me Institute, an independent think tank promoting free-market solutions for Missouri public policy.

The post Missouri: A State of Uncertainty on Health Care Regulation appeared first on Show-Me Institute.

Twenty-six states were party to the lawsuit, but Missouri was not among them. Even though Missourians signaled their overwhelming opposition to the health care regulation by passing Proposition C, Missouri’s attorney general, Chris Koster, didn’t jump on board.

This ruling is good news for Missourians. If the Supreme Court upholds this ruling, Congress will not be able to force people to buy something that they don’t want.

Hopefully, this foreshadows success for Missouri Lt. Gov. Peter Kinder’s own lawsuit challenging the health care reform law. So far, two federal judges have upheld the law, but two have ruled that it is unconstitutional (a lawsuit in Virginia, and now this multistate lawsuit in Florida).

We have followed the Florida lawsuit very closely at the Show-Me Institute, and we will continue to track it as it progresses through the courts.

The full text of the Florida ruling is available online.

The post Judge in Florida Overturns Federal Health Care Law appeared first on Show-Me Institute.

Among the elements of the new health care reform law that was passed by Congress is a requirement that almost every adult would either have to purchase a health insurance policy or face punitive fines to be collected by the Internal Revenue Service. There has been widespread debate in legal circles about whether the courts would uphold such a requirement, but lawmakers in at least 40 states are trying to do what they can to insulate their citizens from such a requirement. In Alaska, members of this legislature are considering HJR 35, which very closely resembles the legislation known in other states as Health Care Freedom amendments.

Related Links

The post Health Care Policy and Constitutional Rights: The Health Care Freedom Amendment appeared first on Show-Me Institute.

When Missourians passed Proposition C last August with more than 71 percent of the vote, they signaled opposition to the individual health insurance mandate that is central to the federal health care reform law adopted by Congress earlier this year. Policymakers in Missouri should take steps to represent their constituency’s resounding opposition to the measure. Missouri’s attorney general, Chris Koster, has the opportunity to do just that by joining 20 other states in a Florida lawsuit against Obamacare. Governors and attorneys general who decide to participate have until January 10 to join the suit.

There are many reasons why Missouri should join the health care reform lawsuit. The individual mandate requiring Americans to carry insurance overreaches the federal government’s authority under the Constitution’s commerce clause. Health care is just one among the many goods and services that individuals in Missouri consume, and courts have never interpreted the commerce clause as giving lawmakers the authority to require individuals to purchase a product.

The case that’s being heard in Florida is one of the few among the two dozen pending challenges to the new health care reform law that also contests the law’s expansion of eligibility requirements for Medicaid, the joint federal-state health insurance program for the poor. Expanding Medicaid would burden the state budget, and may exacerbate the existing deficit. Lawmakers in Missouri have already made cuts to education and public safety, and other cuts to essential services — or increased taxes — could be necessary if the Medicaid program were expanded.

Medicaid is already one of the largest expenses in Missouri’s budget, and the new health care law depends on an expansion of Medicaid for its projected increase in insurance coverage. In fiscal year 2008, Medicaid spending in Missouri totaled more than $7.09 billion. The federal government pays for the majority of the expenditures, but Missouri taxpayers covered $2.66 billion, or more than 12.5 percent, of the state’s total $21.2 billion budget. Although the law initially requires the federal government to absorb the full cost of the expansion, states could eventually pay 10 percent.

The states that are party to the health care reform lawsuit argue that the law impinges on state sovereignty by requiring the use of state funds to cover a much larger share of low-income people through Medicaid. Not only does it undermine state autonomy, it is also unnecessary.

There are alternative ways to provide health care to uninsured and low-income populations without restricting individual liberties and freedom of choice. When the government allows more competition and choice in insurance markets, people can better choose how to balance cost with their own relative tolerance for risk. One successful strategy would be to eliminate the way in which insurance is tied to employment, and instead encourage health savings accounts (HSAs), which would allow individuals to purchase portable, cost-effective policies, save for foreseeable health-related expenses, and hedging against unknown future risk.

Top-down, centralized plans can’t take into account the many varied needs and preferences of the hundreds of millions of people such plans will inevitably affect. By signing on to this Florida lawsuit, Attorney General Koster can help signal that Missourians are capable of making their own health insurance decisions without an intrusive federal mandate.

Christine Harbin is a policy analyst for the Show-Me Institute, an independent think tank promoting free-market solutions for Missouri public policy.

The post Missouri’s Attorney General Should Join Health Care Reform Lawsuit appeared first on Show-Me Institute.

Dear Atty. Gen. Koster:

To date, 20 out of the 50 states have joined a multi-state lawsuit challenging the constitutionality of the recent federal health care reform law. That case, Florida v. United States Department of Health and Human Services, Case No. 3:10-CV-19-RV/EMT, is currently pending before U.S. District Judge Roger Vinson. Other states are expected to join the lawsuit by Jan. 10.

The law at issue is defective on its merits; it raises the cost of health care, intrudes into decisions that should be reserved to individuals and businesses, limits the availability of health insurance, and increases the deficit at a time when the federal debt is already threatening the solvency of the nation. But I urge you to join the lawsuit because of grave concerns over the constitutionality of the law and, in particular, of the individual health insurance mandate.

The individual mandate requiring Americans to carry insurance overreaches the federal government’s authority under the Constitution’s commerce clause. Health care is just one among many goods and services that individuals in Missouri purchase, and courts have never interpreted the commerce clause as giving the federal government the power to require individuals to purchase a product. To put it simply, a person’s decision not to buy health insurance is not an act of “commerce.” If the commerce clause justifies this kind of intrusion, there is literally no limit to the power of the federal government over the lives and freedom of the American people.

Missouri voters understand the constitutional infirmity of the health care law. When they passed Proposition C last August with more than 71 percent of the vote, they signaled strong opposition to the individual mandate. In view of this expression of the popular will, and the implications of this expansion of federal power, I urge you to join the states that have filed this constitutional challenge in an effort to protect the liberty of their citizens.

Most respectfully,

Brenda Talent
Executive Director, Show-Me Institute

Related Links

The post An Open Letter to Missouri Attorney General Chris Koster appeared first on Show-Me Institute.

Currently, a bipartisan group of more than 20 state attorneys general and elected officials are asking a judge in Florida to invalidate the federal health care reform law. Missourians should encourage their attorney general, Chris Koster, to join this multistate lawsuit, which resumes on Jan. 10. In my view, the precedent that Missourians set by approving Proposition C could be continued if Attorney General Chris Koster joined the lawsuit.

The following are some facts related to the lawsuit:

• Twenty attorneys general are challenging the Affordable Care Act (ACA), the health care reform law that Congress passed earlier this year, in a courtroom in Pensacola, Fla. They are arguing that the law is unconstitutional and would set a dangerous precedent.
• The case involves two arguments. The first is that the requirement for all Americans to purchase insurance is unconstitutional. The second is that expanding the eligibility requirements for Medicaid, the joint federal-state health insurance program for the poor, threatens state sovereignty and will burden state budgets.
• The states party to the suit are Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia, and Alaska. Additional states, such as Wisconsin, are considering joining.
• Americans are divided in their support for the health care legislation. Only 42 percent of Americans say they have a generally favorable view of the law, while 41 percent say the opposite, according to a poll by the Kaiser Family Foundation in December 2010.

Missouri voters were the first to oppose this attempt by the federal government to take control over health care. As Missourians, we live in a democracy. We should have a government that represents the demonstrated wishes of Missourians in this matter, thereby advancing liberty with responsibility by promoting market solutions for health care policy.

I will discuss the effort to encourage Attorney General Koster to join the Florida lawsuit on the Mike Ferguson show on the Eagle 93.9 FM tomorrow, Jan. 6 at 5:00 p.m in Columbia. I encourage our readers to tune in or listen online.

The post Attorney General Chris Koster Should Join the Multistate Health Care Lawsuit in Florida appeared first on Show-Me Institute.

This is a very interesting ruling. I’m aware this ruling won’t actually establish a precedent for courts hearing lawsuits about the federal health care mandate (they’re in different jurisdictions, etc.), but it is still intriguing to note that one court has decided that the government cannot compel someone to purchase something for the public good.

Prior to the county’s trash plan, the law specified that you had to have trash service, but it was left completely up to the individual or neighborhood to acquire it. So, the man who won the lawsuit was probably technically violating the old ordinance for a long time, but nobody noticed or cared because he didn’t produce trash. Now, the hauler that exclusively covers his area wants his money. Thankfully, the court ruled in favor of the individual and against the county.

I think nuisance laws against allowing trash to accumulate on your property are sufficient legal powers for the county to enforce basic health codes against trash. If this man does not generate any trash, he should not have to pay for trash service. I agree with the appeals court ruling, and I wonder if future judges will think the same way about other goods and services. Replace “man who does not generate any trash” with “healthy 25-year-old person who does not need or want any health care,” and it will be interesting to see how the relevant cases are ultimately decided.

The post Is a Trash Case a Precursor to a Health Care Decision? appeared first on Show-Me Institute.

The Health Care Freedom Act passed with more than 71 percent of the vote, but this alone does not truly tell the story. Primary elections have a different dynamic than general elections, with lower turnouts that can be dominated by one party or another; a measure passing with 71 percent of the vote might not be surprising if, say, the party most likely to favor that measure had far more supporters going to the polls. And, in fact, about 64 percent of those who voted yesterday chose Republican ballots, while only 35 percent chose Democratic ballots. The Health Care Freedom Act was sponsored by and primarily driven by Republicans, and its target was a provision in a bill passed by a Democratic Congress and a Democratic President — so, given the turnout, perhaps the landslide victory for Prop C was just to be expected.

Not so fast.

Looking more closely at the data, it appears that a significant percentage of Democrats also voted in favor of Prop C, presumably indicating dissatisfaction with the individual health insurance mandate. How can we know? Just compare the number of Democratic ballots cast in the race for U.S. Senate (315,787) to the number of votes cast against Prop C (271,102). That means that even if we assume that every person using a Republican, Libertarian, or Constitution Party ballot voted in favor of the Proposition (an unlikely prospect), more than 40,000 people using Democratic ballots also supported the measure. In St. Louis city, at least 29 percent of those casting Democratic ballots voted in favor of Prop C (26,696 Democratic ballots; 18,989 votes against Prop C). In Kansas City, at least 20 percent of those casting Democratic ballots voted in favor of Prop C (20,534 Democratic ballots; 16,383 votes against Prop C). When one considers that it is likely that at least a small percentage of Republican, Libertarian, and Constitution Party voters voted against Prop C, that means that anywhere from 25 percent to 40 percent of Democrat voters statewide probably supported the measure.

There are limits to what yesterday’s vote can tell us. For example, are Prop C’s supporters opposed to all parts of the federal health care law, or just the individual mandate? At a minimum, though, it does seem remarkably clear that Missouri voters have demonstrated a broad and bipartisan opposition to the idea that Congress should force people to purchase health insurance.

The post Some Observations on Prop C appeared first on Show-Me Institute.

On July 7, Missouri’s lieutenant governor filed suit against the recently passed federal health care reform. It’s difficult to know exactly what to make of certain aspects of this lawsuit, because it assumes the manner in which the federal health care law will function — and it is not clear that the lawsuit’s assumptions are correct. Even if they are correct, however, there are a few issues that may prevent this lawsuit from proceeding.

The first is the question of standing. Before a court will consider and rule on a legal issue, plaintiffs must establish that there is a current case or controversy between themselves and any defendants. Where the government is the defendant, this usually means that the government must have taken some act that has caused a harm or detriment to the person filing the lawsuit. It is not usually sufficient simply for a law to be on the books; courts usually (although not always) require that there must have been some implementation of the law before they will address its validity. Also, it is important to remember that plaintiffs cannot generally bring claims on behalf of others.

This lawsuit has eight counts. Several of these assert rights properly belonging to the state of Missouri. The lieutenant governor suggests that because a state statute gives his office the responsibility to be an advocate for the state’s elderly citizens, he has authority to seek relief on behalf of the state government. Similarly, the lawsuit claims that the citizen plaintiffs, as taxpayers, have a right to raise these claims on behalf of the state government. It is possible that courts have previously found citizen taxpayers to have standing to sue on behalf of their state government, but I cannot think of any examples and I do think it unlikely. Thus, I don’t think a court is likely to agree to consider counts one, three, and four. And, even if the court did address them, I question the viability of several of the lawsuit’s assertions in these counts.

It may be correct that the federal government has no proper authority to require the state government to adopt certain programs (count one), no authority to compel the state government to make a payment to the federal Department of the Treasury (count three), and no authority to force the state government to increase state taxes in violation of the Missouri Constitution (count four) — but it is not particularly clear that the federal health care law would actually do any of these things. As I have pointed out, the lawsuit assumes that the law will be implemented in a particular way, but we cannot be sure that its assumptions are accurate. This has an enormous bearing on the validity of these claims.

Count two deals with the compensation provided to state officials, so it is at least arguable that the lieutenant governor could have standing to assert the claims of that count. The substance of the claim, however, is dubious. It seems highly unlikely that the federal government is not permitted to impose certain limitations on how the state of Missouri is permitted to compensate its employees. For example, would the state argue that it is not required to pay minimum wage or to comply with anti-discrimination laws? The principles of state sovereignty expressed in count two are, I believe, well made, but they do not necessarily demand a conclusion that the targeted provision of the federal health care law is unconstitutional.

Counts five and six address the individual insurance mandate, which does not even go into effect until 2014. I think the legal arguments in these counts are well-founded, but the claims are premature and will continue to be so until the mandate is actually implemented.

Count seven may actually have some legs. It addresses the provision of special treatment for citizens of certain states, which was incorporated into the health care law in order to secure the votes of certain congressional representatives. The count points out that these exemptions, or “grandfather” provisions, require that the law be applied differently to similarly situated citizens based on nothing other than their geography. That’s a powerful claim, assuming that the law will be implemented in the way that the lawsuit envisions. Those aspects of the statute go into force on Jan. 1, 2011, so it’s possible that the court will be willing to address them.

Count eight attacks the infamous “panels” that are expected to be established to evaluate the appropriate levels of treatment for various health care situations. The lawsuit assumes that these panels will have the power to forbid doctors to provide services to citizens willing to pay for them. If that assumption is correct, this count may have life — if and when the panels are ever constituted and actually issue the anticipated prohibitions. I do not, however, think that a court is likely to assess this claim until those things have taken place.

So, taken as a whole, I think it likely that the court will ultimately dismiss at least half of the claims raised in this lawsuit (and probably three quarters of them) as lacking either standing or ripeness. It is possible that the court will address the merits of counts two and seven. It is difficult to predict how the court will come out on count two, although I think it unlikely that the court will find a constitutional violation. If, however, the federal statute implements the provision targeted by count seven in the manner that the lawsuit anticipates, I think there is a very strong chance that it will be struck down as unconstitutional.

Dave Roland is a policy analyst at the Show-Me Institute, a Missouri-based think tank.

The post Assessing Legal Prospects for Lawsuit Over Federal Health Care Reform appeared first on Show-Me Institute.

This lawsuit has eight counts. Several of these assert rights properly belonging to the state of Missouri. The lieutenant governor suggests that because a state statute gives his office the responsibility to be an advocate for the state’s elderly citizens, he has authority to seek relief on behalf of the state government. Similarly, the lawsuit claims that the citizen plaintiffs, as taxpayers, have a right to raise these claims on behalf of the state government. It is possible that courts have previously found citizen taxpayers to have standing to sue on behalf of their state government, but I cannot think of any examples and I do think it unlikely. Thus, I don’t think a court is likely to agree to consider counts one, three, and four. And, even if the court did address them, I question the viability of several of the lawsuit’s assertions in these counts. It may be correct that the federal government has no proper authority to require the state government to adopt certain programs (count one), no authority to compel the state government to make a payment to the federal Department of the Treasury (count three), and no authority to force the state government to increase state taxes in violation of the Missouri Constitution (count four) — but it is not particularly clear that the federal health care law would actually do any of these things. As I have pointed out, the lawsuit assumes that the law will be implemented in a particular way, but we cannot be sure that its assumptions are accurate. This has an enormous bearing on the validity of these claims.

Count two deals with the compensation provided to state officials, so it is at least arguable that the lieutenant governor could have standing to assert the claims of that count. The substance of the claim, however, is dubious. It seems highly unlikely that the federal government is not permitted to impose certain limitations on how the state of Missouri is permitted to compensate its employees. For example, would the state argue that it is not required to pay minimum wage or to comply with anti-discrimination laws? The principles of state sovereignty expressed in count two are, I believe, well made, but they do not necessarily demand a conclusion that the targeted provision of the federal health care law is unconstitutional.

Counts five and six address the individual insurance mandate, which does not even go into effect until 2014. I think the legal arguments in these counts are well-founded, but the claims are premature and will continue to be so until the mandate is actually implemented.

Count seven may actually have some legs. It addresses the provision of special treatment for citizens of certain states, which was incorporated into the health care law in order to secure the votes of certain congressional representatives. The count points out that these exemptions, or “grandfather” provisions, require that the law be applied differently to similarly situated citizens based on nothing other than their geography. That’s a powerful claim, assuming that the law will be implemented in the way that the lawsuit envisions. Those aspects of the statute go into force on Jan. 1, 2011, so it’s possible that the court will be willing to address them.

Count eight attacks the infamous “panels” that are expected to be established to evaluate the appropriate levels of treatment for various health care situations. The lawsuit assumes that these panels will have the power to forbid doctors to provide services to citizens willing to pay for them. If that assumption is correct, this count may have life — if and when the panels are ever constituted and actually issue the anticipated prohibitions. I do not, however, think that a court is likely to assess this claim until those things have taken place.

So, taken as a whole, I think it likely that the court will ultimately dismiss at least half of the claims raised in this lawsuit (and probably three quarters of them) as lacking either standing or ripeness. It is possible that the court will address the merits of counts two and seven. It is difficult to predict how the court will come out on count two, although I think it unlikely that the court will find a constitutional violation. If, however, the federal statute implements the provision targeted by count seven in the manner that the lawsuit anticipates, I think there is a very strong chance that it will be struck down as unconstitutional.

The post Assessing Legal Prospects for Lawsuit Over Federal Health Care Reform appeared first on Show-Me Institute.

Early in this year’s legislative session, members of the General Assembly asked me to offer testimony on the Health Care Freedom Act, which was proposed as a constitutional amendment that would recognize the fundamental right of citizens of Missouri to decide for themselves how they will pay for their health care, and that no government could rightfully interfere with that decision. In my testimony, I pointed out that if courts decided that nothing in the U.S. Constitution prevented the government from mandating the purchase of government-approved insurance policies, a constitutional amendment of the sort contemplated in the Health Care Freedom Act could offer a legal “Hail Mary” — a last line of defense that might prevent further congressional intrusion into citizens’ lives.

Despite overwhelming support in both the House and Senate, the Missouri General Assembly did not agree to let citizens vote on this constitutional amendment. Instead, the legislature placed the original bill’s language into House Bill 1764, which would allow voters an August referendum on adopting a new statute. Many of the legislators and citizen groups who had worked to pass the original bill are now hailing the passage of HB 1764, implying that if the people vote to adopt this statute, it will have the same effect as the proposed constitutional amendment might have. Unfortunately, this is simply not true. Missouri voters may well use this referendum as a political statement through which they can express their opinions about the federal health care reform law, but the text that might have been legally useful as a constitutional amendment will have zero legal effect as a statute.

The text that will be presented at the referendum states, in part: “No law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” A court called upon to evaluate whether this provision would be effective against any federal enforcement of the health insurance mandate will first point out that because the language makes no reference to any particular government, it must be assumed to apply only to law- or rule-making subdivisions of the state of Missouri. Not only is it virtually unheard of (and generally futile) for a state statute to attempt to bind the federal government or one of its agencies, the plain text of the bill says nothing to suggest that is its purpose. A court looking at this provision as a statute will almost certainly end its analysis there.

However, even if the court infers that the General Assembly intended to prevent the enforcement of certain federal laws, the statute will fail. In order for the Health Care Freedom Act to have any hope of being effective, it would have to give citizens the basis to argue that health care freedom is a fundamental right beyond any government’s rightful authority to transgress. If the citizen could make that argument, there would be a very slight chance that the U.S. Supreme Court might consider such a fundamental right sufficient to prevent the government from punishing those who chose not to abide by the individual insurance mandate. A statute, however, is not the mechanism by with citizens establish fundamental rights or liberties — they put those in their constitutions, where they are insulated from repeal or avoidance by future legislation. Thus, even if HB 1764 had purported to establish a fundamental right or liberty, courts would have been unlikely to take them seriously. It just so happens that HB 1764 does not even make such an effort, further diminishing any legal usefulness it otherwise might have had.

To be clear, I do not mean to suggest that proponents of the Health Care Freedom Act are intentionally misleading people as to the likely effect of HB 1764. But Missouri’s citizens deserve to know that the bill and the upcoming referendum it authorizes can only be considered a political statement. Even if the people adopt this statute at the August referendum, their rights and liberties will be no more secure than if the bill had been defeated.

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You see, it is a bedrock principle of American law that federal courts cannot offer “advisory opinions.” In order for a federal court to resolve a legal issue, the person or organization presenting that issue to the court must demonstrate that they have suffered, are suffering, or are in immediate danger of suffering some injury. If the complainant can’t show how they are being harmed, the court rules that there is no current “case or controversy” existing between the parties and the case gets thrown out.

In the weeks since Congress adopted the new health care reform law, state officials all over the country have been trumpeting their intent to challenge the law’s constitutionality. Attorneys general, governors, and lieutenant governors in 15 (or more) states have already joined or have pledged to join federal lawsuits intended to strike down the individual health insurance mandate. But there are two big, big problems.

First, the individual mandate is not scheduled to go into effect until 2014. In other words, no one will be required to comply with the mandate for another four years. And, until someone is bound by this requirement, it will be virtually impossible to persuade a court that anyone has been sufficiently harmed by this law to create the “case or controversy” necessary for the court to address the merits of the claim. The second problem is that federal courts do not generally allow one person to assert a claim based on injury suffered by someone else (although there are a few limited exceptions to this rule). Although these state officials could file lawsuits on their own behalves, if they did not have compliant health insurance policies, it is much tougher for them to suggest persuasively that these officials have any basis for asserting the rights of individual citizens, independent of any private citizen asserting a claim against the federal law. The state officials’ claims might have a bit more substance in states that have passed a statute or constitutional amendment limiting governmental authority to interfere with citizens’ decisions regarding health insurance, but it is still a tenuous legal position unless the state is intervening on behalf of a private citizen’s lawsuit.

So, in all likelihood, these impassioned crusades to knock down the health insurance mandate will prove to be utterly worthless until the targeted provision actually takes effect. And, in the meantime, those in support of the mandate will point to the failure of these lawsuits as proof of both the mandate’s constitutionality and the general wrongheadedness of those who oppose the mandate. My advice to these well-intentioned officials is to withdraw their lawsuits for the time being, and for the next four years focus instead on addressing the mandate through the legislative process. If the mandate remains in place after the elections of 2010 and 2012 pass by, then will be the appropriate time to take this issue to the courts.

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An individual mandate would be similarly counterproductive. The Wall Street Journal reports on an analysis by the Heritage Foundation showing that “roughly 93 percent of uninsured households under age 35 who face a penalty for remaining uninsured would rather pay the penalty than buy health insurance.” As the article points out, paying this penalty would require money that would have otherwise been spent or saved, causing an unnecessary drain on both the economy and the individuals who are forced to pay this fine.

This is a perfect example of the unintended consequences that so often occur as a result of well-intentioned legislation. It seems like legislators are usually more focused on how their proposals sound, rather than on the actual results of those policies. Unfortunately, this never ends well; we all know the saying about the road that’s paved with good intentions.

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