Health Care and the Constitution
I have made some video commentary describing the 5 ways that the Health Care Reform Bill signed by President Obama yesterday can be attacked on Constitutional grounds.
You can find the videos at our You Tube page.
Part 1 is here. There are four parts altogether and I hope they are useful.
In the fourth video I talk about the ratemaking cases. I promised that I would link to the research done on this topic. A link to the entire article is here. Here is an op-ed that is easier to follow.
But, the significant language concerning the constitutionality of the new health insurance market that is created under the bill I copy here:
This systemic regulation of both Exchange and non-Exchange carriers shows, moreover, that those health-insurance issuers that participate in the Exchange are shorn of all constitutional rights. The requirement that the states order rebates of money spent on non-claim expenses is not constitutionally permissible unless and until the Reid Bill makes some allowance for earning a reasonable rate of return. That return, moreover, must take into account the extra riskiness that flows from the grant of broad delegated authority to the Secretary.
In addition, the decision to order rebates in good years without adjustments for the losses in bad years makes it impossible for a firm to earn a reasonable rate of return. In utility rate regulation, it is not constitutionally permissible to impose an annual rate cap just at the competitive level, while leaving the carrier obligated to eat the losses in poor years. Section 2718 of the Reid bill goes even further than such unconstitutional provisions in the utility context: it imposes a hard cap, without any accurate accounting for administrative costs or any explicit recognition of the constitutional right to earn a reasonable profit.
Rasmussen released a poll yesterday that shows the public favors the state litigation aginst the health care bill, 49% favor, 37% oppose.