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发帖数: 4174 | 1 Legal Experts See a Close Win for Health-Reform Law
By By Dennis Thompson
HealthDay Reporter | HealthDay – 2 hrs 47 mins ago
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THURSDAY, March 22 (HealthDay News) -- The U.S. Supreme Court seems likely
to uphold the sweeping health-reform legislation known as the Affordable
Care Act when it takes up the case next week, according to a small survey of
legal experts.
The experts base this prediction on a number of factors linked to the nine
justices' legal history, political considerations and the constitutional
questions raised by the case itself.
"The folks [26 states] who are challenging the act have somewhat of an
uphill battle," said Gregory Magarian, a professor at Washington University
Law School in St. Louis. "It's been some time since the court has struck
down a major piece of federal legislation on the theory that it exceeds
Congress' constitutional authority."
The major argument over the constitutionality of the law -- passed by
Congress and signed by President Barack Obama in March 2010 -- centers on
the so-called individual mandate. That's the piece of the Affordable Care
Act that requires most adults in the United States to have some sort of
health insurance or face a fine.
The individual mandate offers the law's opponents fodder for debate,
Magarian said, because it requires people to purchase health insurance
whether they want it or not.
"That's something the federal government has never exactly done before," he
said.
State governments have made related requirements of people -- auto insurance
being the most prominent example. But even a requirement to purchase auto
insurance isn't universal.
"You can avoid buying auto insurance by not having a car," Magarian said. "
Being alive is what triggers the requirement for health insurance."
But, many of the legal experts surveyed believe the justices will conclude
that the individual mandate falls squarely within the confines of the
Commerce Clause, the part of the U.S. Constitution that gives Congress the
right to govern interstate economic activity.
"There really is an interstate commercial effect of not having a federal
health-care policy," said Leslie Meltzer Henry, an assistant professor at
the University of Maryland School of Law. "In the absence of federal
intervention in this area, individuals who desperately need insurance can't
get it."
The law professors said the individual mandate is needed to make many of the
Affordable Care Act's provisions work. For example, insurance companies
that will be required to cover everyone -- even people with preexisting
health conditions -- can only survive financially if most adults are
required to buy health coverage, whether they are healthy or sick. That will
ensure there's enough money in the risk pool.
Neil Siegel, a professor of law and political science at Duke University
School of Law, noted that the U.S. Supreme Court has in recent years acted
to limit some of Congress' powers under the Commerce Clause. But those cases
involved social issues such as banning the carrying of firearms in public
schools. Conversely, Congress' economic powers under the Commerce Clause
have been upheld and protected by the high court, he added.
"The court has held that in issues of economic activity, Congress can act as
if we have an integrated national economy," Siegel said. "Here you have
economic conduct [health care] with massive interstate effects. Health care
is an area of already pervasive federal regulation."
There are other considerations at work that will affect the justices'
decisions, the experts said.
While the Supreme Court hasn't been shy about reversing some legislation,
the experts said you have to go back to the Great Depression and President
Franklin D. Roosevelt's New Deal to find an example of the High Court
striking down a landmark piece of legislation as large and momentous as the
Affordable Care Act.
"I think it's unlikely the court wants to create a major public or policy
upheaval, which is what it would be doing if it overturned the law," said
Robert Field, a professor of law in the department of health management and
policy at Drexel University's School of Public Health in Philadelphia. He
added that a rejection of the law could potentially have consequences for
other major federal programs such as Medicare, Medicaid and Social Security.
But Stephen Presser, professor of legal history at Northwestern University
School of Law, believes the health-reform law will be ruled unconstitutional
in a narrow 5-4 decision.
"I think [Justices Antonin] Scalia, [Clarence] Thomas, [Samuel] Alito and [
John] Roberts will all have to view this as Congress going much too far and
virtually ignoring the 10th Amendment," Presser said. "Justices [Stephen]
Breyer and [Ruth Bader] Ginsburg have always been strong voices for expanded
Congressional power, and Justices [Elena] Kagan and [Sonia] Sotomayor are
not going to embarrass the man [Obama] who appointed them, so there are four
sure votes to uphold the legislation as well. That leaves only [Anthony]
Kennedy as the swing vote, as most commentators, I think, understand."
And Presser believes Kennedy will vote with the conservative justices, based
on prior rulings that have argued for states' rights as the best way to
preserve individual liberty. "If he follows that logic he will have to vote
to overturn the ACA's individual mandate," Presser added.
Political considerations will also be in the back of the justices' minds,
the experts said. The challenge to the Affordable Care Act is taking place
in a presidential election year, and could strongly affect President Obama's
re-election chances.
"If the court strikes down the act," Magarian said, "all of a sudden, the
left/center-left is going to be whipped into a frenzy. The path of least
resistance would be to uphold the thing and let the status quo stand."
But, some of the experts believe there's also a good chance the Supreme
Court will punt on the issue, declaring that the time isn't right for
judicial review of the Affordable Care Act.
"I think it's interesting they're going to spend a lot of time -- a third of
oral arguments -- on whether the case is 'ripe' for judicial review," said
Drexel's Field. "That could be a signal from the court that they're spending
that much time on that part of the argument."
Added Allison Orr Larsen, an assistant professor of law at the College of
William & Mary in Williamsburg, Va.: "My best guess would be they don't
decide it on the merits."
The reason why: the individual mandate, which takes effect in 2014, is a
form of tax, and federal law doesn't allow a legal challenge to a tax that
has yet to be collected.
"You can't challenge a tax until after you've paid it, and then you can sue
for a refund," Larsen said, noting that this legal argument has come up in
some lower court rulings on the law.
Such a ruling would delay any challenge to the Affordable Care Act until
2015. This would give the Supreme Court the chance to take the issue off the
table in an election year while not explicitly endorsing or scuttling the
law. "That's why I think it would be an attractive option for them," Larsen
said.
Field agreed. "There's a good chance that they'll do that," he said. "The
public might be left very frustrated, from not having a definitive answer,
but we should be prepared for that outcome."
All the legal observers believe that the court's reasoning will become much
clearer during the three days of arguments that begin on Monday.
"Because the hearing is going to be so long, I think we're going to come out
of it with a good idea of what the justices are thinking about," Magarian
said. | p****u
发帖数: 2596 | 2 支持最高法院把这个法律废掉。。支持最高法院把这个法律废掉。。支持最高法院把这
个法律废掉。。支持最高法院把这个法律废掉。。支持最高法院把这个法律废掉。。支
持最高法院把这个法律废掉。。
of
【在 g********d 的大作中提到】
: Legal Experts See a Close Win for Health-Reform Law
: By By Dennis Thompson
: HealthDay Reporter | HealthDay – 2 hrs 47 mins ago
: Email
: 2
: Print
: THURSDAY, March 22 (HealthDay News) -- The U.S. Supreme Court seems likely
: to uphold the sweeping health-reform legislation known as the Affordable
: Care Act when it takes up the case next week, according to a small survey of
: legal experts.
| p***2
发帖数: 374 | 3 美国的医疗和医保。。。
我买的一个治疗仪器，Amazon上买只要几十美元，通过保险的话需要支付800美元＋。 | m******1
发帖数: 19713 | 4 去眼镜店配眼镜，发现所有的眼镜店里卖的框架都比网上贵一倍
除去VSP付的部分，再假模假样给你打个折扣，自己付的那部分差不多和网上原价一样贵
可是如果自己在网上买，VSP还是可以按照out of network给报销大部分
【在 p***2 的大作中提到】
: 美国的医疗和医保。。。
: 我买的一个治疗仪器，Amazon上买只要几十美元，通过保险的话需要支付800美元＋。
| p***2
发帖数: 374 | 5 是啊。。。 ”保险泡沫“
样贵
【在 m******1 的大作中提到】
: 去眼镜店配眼镜，发现所有的眼镜店里卖的框架都比网上贵一倍
: 除去VSP付的部分，再假模假样给你打个折扣，自己付的那部分差不多和网上原价一样贵
: 可是如果自己在网上买，VSP还是可以按照out of network给报销大部分
| k*****e
发帖数: 22013 | 6 这个医保真该有人管管，现在简直就是骗保。
我当年一个医疗仪器，其实原理非常简单，网上可以买到二手的，100美元左右
我觉得这个定价是合理的。但是二手实际上是黑市，不合法的。
真正的仪器必须是in service的，由厂家质量把关，有点像手机开通服务，
每个月的月租费是100美元，要租一年，实际上也从没有人到我家里来service。
也就是你要花1200美元。然后保险给你cover，虽然你不花钱，
但是羊毛出在羊身上，这些钱都是平时大家出的保险费，
最后都是落入了仪器厂商和销售商的腰包。
【在 p***2 的大作中提到】
: 美国的医疗和医保。。。
: 我买的一个治疗仪器，Amazon上买只要几十美元，通过保险的话需要支付800美元＋。
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