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Affordable Health Care, a Constitutional and Practical Approach to the Problem

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The approach to providing health care is a major issue in the 2020 campaign for President. It varies from President Trump's approach to repeal Obamacare and throw everyone to the wolves and Senator Sanders and Warren who want to scrap the private system for "Universal Care", to the non-specific position of moderates who want to improve Obamacare with no details. Whatever the approach, with the exception of President Trump's plan to gut existing protections with no solution, other plans will require them to be constitutional. Understanding the law allows us to explore the best possible approach to addressing health-care insurance in a way that makes sense. I will first explain the constitutional legal issues that must be addressed in any expansion of health-care coverage enacted by Congress and then offer a simple solution that I contend will be legal and practical.

In Helvering v. Davis 301 U.S. 619 (1937), the Supreme Court addressed the constitutionality of Social Security. The court in their opinion observed, "the Social Security system may be accurately described as a form of social insurance, enacted pursuant to Congress' power to 'spend money in aid of the general welfare' " .

The Court in Helvering also held that the issue of 'general welfare' is not for the Court to decide. Rather, "the discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment". In evaluating this discretion the court did not narrow the power of Congress; rather they recognized that the general welfare of the country can change. The court said: "Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation. What is critical or urgent changes with the times."

More recently in deciding the constitutional status of 'Obamacare', the Supreme Court evaluated the core provision that required someone to purchase health care or get taxed and upheld the law. In National Federation of Independent Business v. Sebelius 132 S. Ct. 2566 (2012), Chief Justice Roberts wrote; "Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control. And in exercising its spending power, Congress may offer funds to the States, and may condition those offers on compliance with specified conditions. "

With this legal framework in mind, how can Congress expand health-care coverage without either adopting a government-run universal health-care system or somehow requiring people to buy a private policy?

I propose that a hybrid approach would work best. Provide "universal" coverage for $7,500 of coverage a year, administered through private health-care policies. It should be a condition of receiving this benefit that you have a health-care policy. This program would operate as an automatic $7,500 deductible, which would lower insurance premiums. It would allow people to keep their current insurance. It would give some universal coverage without creating a new agency to administer health-care payments. It would be an incentive to purchase health-care insurance but not a requirement. It would give seniors a $7,500 part-B benefit. Last, but not least, it is an approach that is not cost prohibitive as compared to a fully funded universal health-care system.

However there would be a cost. How do you pay for it? Why not do something that already has been held to be constitutional? Simply remove the cap on Social Security taxes. Do this and address drug costs allowing the federal government to negotiate prices for Medicare recipients and/or allow the purchase of medications from "vetted" countries such as Canada and European countries with high standards of safety and quality control. Address the high costs of medications and Americans can stop being the main contributors of R&D drug research costs that the rest of the world benefits from, but does not pay for.

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Experienced civil litigation attorney: Admiralty law; employment law [discrimination]; construction defect litigation; personal injury and wrongful death litigation; business litigation in both State and Federal (more...)
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