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Why the New Healthcare Law Should Have Been Based on Medicare (And What Democrats Should Have Learned By Now)

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Two appellate judges in Atlanta -- one appointed by President Bill Clinton and one by George H.W. Bush -- have just decided the Constitution doesn't allow the federal government to require individuals to buy health insurance.

The decision is a major defeat for the White House. The so-called "individual mandate" is a cornerstone of the Affordable Care Act, President Obama's 2010 health-care reform law, scheduled to go into effect in 2014.

The whole idea of the law is to pool heath risks. Only if everyone buys insurance can insurers afford to cover people with preexisting conditions, or pay the costs of catastrophic diseases.

The issue is now headed for the Supreme Court (another appellate court has upheld the law's constitutionality) where the prognosis isn't good. The Court's Republican-appointed majority has not exactly distinguished itself by its progressive views.   

Chalk up another one for the GOP, outwitting and outflanking the President and the Democrats.

Remember the health-care debate? Congressional Republicans refused to consider a single-payer system that would automatically pool risks. They wouldn't even consider giving people the option of buying into it.

The President and the Democrats caved, as they have on almost everything. They came up with a compromise that kept health care in the hands of private insurance companies.

The only way to spread the risk in such a system is to require everyone buy insurance.

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Which is exactly what the two appellate judges in Atlanta object to. The Constitution, in their view, doesn't allow the federal government to compel citizens to buy something. "Congress may regulate commercial actors," they write. "But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die."

Most Americans seem to agree. According to polls, 60 percent of the public opposes the individual mandate. Many on the right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.

Had the President and the Democrats stuck to their guns during the health-care debate and insisted on Medicare for all, or at least a public option, they wouldn't now be facing the possible unraveling of the new health care law.

After all, Social Security and Medicare -- the nation's two most popular safety nets -- require every working American to "buy" them. The purchase happens automatically in the form of a deduction from everyone's paychecks.  

But because Social Security and Medicare are government programs they don't feel like mandatory purchases. They're more like tax payments, which is what they are -- payroll taxes.

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There's no question payroll taxes are constitutional, because there's no doubt that the federal government can tax people in order to finance particular public benefits.

Americans don't mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout "don't take away my Medicare!" at rallies opposed to the new health care law.

Requiring citizens to buy something from a private company is entirely different. If Congress can require citizens to buy health insurance from the private sector, reasoned the two appellate judges in Atlanta, what's to stop it from requiring citizens to buy anything else? If the law were to stand, "a future Congress similarly would be able to articulate a unique problem ... compelling Americans to purchase a certain product from a private company."

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http://robertreich.org/

Robert Reich, former U.S. Secretary of Labor and Professor of Public Policy at the University of California at Berkeley, has a new film, "Inequality for All," to be released September 27. He blogs at www.robertreich.org.

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Then by logical extension, if corporations are "pe... by Richard Girard on Tuesday, Aug 16, 2011 at 3:26:21 PM
We can do better than this 37th we are now ranked ... by Michael Dewey on Tuesday, Aug 16, 2011 at 6:35:12 PM
But yeah... by Jill Herendeen on Wednesday, Aug 17, 2011 at 7:20:31 AM
 And paying copays. Yeah, right. What you ar... by BFalcon on Tuesday, Aug 16, 2011 at 10:37:38 PM
Patient "cost-sharing" is a lousy way to control c... by PCM on Wednesday, Aug 17, 2011 at 12:40:34 AM
[continued from previous post]Overall, every other... by PCM on Wednesday, Aug 17, 2011 at 12:45:46 AM
"Under HR 676, it will initially cost about the sa... by BFalcon on Wednesday, Aug 17, 2011 at 1:03:10 AM
Savings from administrative efficiency and monopso... by PCM on Wednesday, Aug 17, 2011 at 6:43:16 PM
Since it always distorts the situation and creates... by BFalcon on Thursday, Aug 18, 2011 at 1:01:10 AM
Yup. And those French nurses don't have student lo... by PCM on Thursday, Aug 18, 2011 at 11:12:19 AM
Since it creates shortages, shifts priorities and ... by BFalcon on Thursday, Aug 18, 2011 at 10:12:29 PM
Your thesis has one glaring and fatal flaw.  ... by Doc McCoy on Thursday, Aug 18, 2011 at 11:03:58 PM
burden of the cost of health care amongst the worl... by Jill Herendeen on Wednesday, Aug 17, 2011 at 7:27:08 AM
Is totally inaccurate. I don't think that we hav... by BFalcon on Thursday, Aug 18, 2011 at 1:07:14 AM
  Of course we should have a single-payer pl... by Penny Dever-Reynolds on Wednesday, Aug 17, 2011 at 8:12:52 AM
You can tax the fat cats 100% of their income and ... by Doc McCoy on Thursday, Aug 18, 2011 at 1:36:41 AM
There is a profound lack of money to pay for the h... by Doc McCoy on Wednesday, Aug 17, 2011 at 8:58:21 AM
I posted a very brief op-ed piece entitled Save Me... by Allen Smith on Thursday, Aug 18, 2011 at 12:04:41 AM
That will be news to all Americans who pay FICA pa... by PCM on Thursday, Aug 18, 2011 at 6:08:47 PM
The 50% tax statement was a reference to those who... by Doc McCoy on Thursday, Aug 18, 2011 at 11:47:57 PM
For what it's worth, I don't have any unusual conf... by PCM on Friday, Aug 19, 2011 at 1:58:51 AM
Comes from years of working in different settings ... by BFalcon on Friday, Aug 19, 2011 at 3:47:49 AM
It has been understood for nearly 50 years that th... by PCM on Friday, Aug 19, 2011 at 7:20:04 PM
I said that the US has great health care which com... by BFalcon on Saturday, Aug 20, 2011 at 5:41:09 AM
And so, to the extent that insurance actually pays... by Jill Herendeen on Saturday, Aug 20, 2011 at 6:46:14 AM
Our goal has to be to provide access to this great... by BFalcon on Saturday, Aug 20, 2011 at 8:58:06 PM
I would posit that you do in fact have conflicts o... by Doc McCoy on Friday, Aug 19, 2011 at 4:24:31 AM
Would you say that the world's highest-paid physic... by PCM on Friday, Aug 19, 2011 at 5:02:01 PM
Funny thing about that.... by Jill Herendeen on Friday, Aug 19, 2011 at 3:34:08 PM
Save Medicare and Medicaid by Issuing Debt-Free Un... by Allen Smith on Thursday, Aug 18, 2011 at 12:18:03 AM
This concept would simply create a dual money syst... by Doc McCoy on Thursday, Aug 18, 2011 at 12:31:13 AM
that issuing debt-free money is an option that alr... by Allen Smith on Thursday, Aug 18, 2011 at 1:48:46 AM