Is Judicial Activism from the Right Alright

           Robert A. Levine     5-29-12

For decades conservatives have been assailing the courts for judicial activism, claiming the bench has been shaping or creating laws that override or ignore the intent of state legislatures, Congress and the Constitution. With judicial activism, the courts thwart the power of elected bodies to legislate, by ruling laws unconstitutional. This is the antithesis of judicial restraint, where the Courts accede to the elected branches of the government and uphold the laws they have enacted, giving them the benefit of the doubt when questions have been raised. Critics also note that precedents may be disregarded when the Courts attempt to legislate. However, now that the Supreme Court has tilted to the right, conservative voices are no longer being lifted against recent judicial activism, but praise the Court’s decisions.

A cry against judicial activism came from Southern conservatives when the Warren Supreme Court in a 9-0 landmark decision in 1954, Brown v Board of Education, declared state laws unconstitutional that authorized separate public schools for black and white students. The Court decided that these laws violated the Equal Protection clause of the 14^th Amendment. This overturned Plessy v Ferguson which in 1896 had ruled in favor of state supported segregation. Subsequently, in 1973, in Roe v Wade, the Court struck down anti-abortion laws that had been enacted by many states, by a 7-2 margin. Conservatives again saw this as judicial over reaching by the Court.

Since that decision, the Court has ruled a number of times limiting the scope of Roe v Wade with conservative approval. In 1980, it validated the Hyde Amendment, prohibiting federal funds from being used by indigent women for abortions. In Rust v Sullivan in 1991, it upheld regulations that banned abortion counseling and referrals from family planning clinics that received federal funds. In a number of other cases since, it has favored further restrictions on women’s rights to choose abortion. Since these rulings upheld state and federal laws, they could be considered judicial restraint rather than activism.

Other rulings by the Supreme Court have overturned local laws restricting use of guns and upheld laws that expanded gun rights. These decisions affirmed the conservative outlook of the Court, with judicial activism evident in the first instance when legislation developed by elected bodies was ruled invalid. Rulings narrowing the scope of the 1966 Miranda decision about a criminal suspect’s right to remain silent reinforced the Court’s leaning to the right, as did decisions regarding privacy, free speech and immigration.
However, the major manifestation of the Court’s conservative judicial activism came with its Citizen’s United ruling in 2010 that overturned decades of laws and precedents that had attempted to control campaign spending. Statutes had existed limiting corporate contributions in election campaigns since 1906, the most recent of which was the McCain-Feingold Act passed in 2002. This had been upheld by the Court in a 5-4 decision in 2003 in McConnell v Federal Election Commission. Then Citizens United overrode past precedent to strike down the provisions of McCain-Feingold that limited corporate spending in federal election campaigns, saying it went against the First Amendment that protected freedom of speech.

Conservatives had previously argued that judicial activism was only credible when protecting rights that were present in the text of the constitution, or if intent of the framers of the constitution had been evident. These criteria were not met in this bald act of judicial activism by the Court, unleashing Super PACs upon the country.

The question now remains how the Supreme Court will rule on the Affordable Care Act. Given the Court’s recent history of conservative judicial activism, it seems likely the justices will either find the entire Act or the individual mandate unconstitutional. When this decision is handed down, one can not expect any cries against judicial activism to come from the right.

Resurrecting Democracy
www.robertlevinebooks.com

Moral Hazard, Health Care Coverage and the Individual Mandate

            Robert A. Levine   4-23-12

Whether the Affordable Care Act (ACA), now before the Supreme Court, will survive in its current form is in some doubt, with the individual mandate particularly in danger of being overturned. Though Congress has the power to regulate interstate commercial activity, opponents of the law believe it can not impose a tax or fee on inactivity, such as the failure of citizens to purchase health insurance.

The individual mandate was included as part of the law to pressure young healthy people to obtain insurance. This was to balance the cost of insuring men and women with chronic illnesses and pre-existing conditions. Without the mandate, it was believed many young Americans would not bother with coverage, as is currently the case. If that happened, writing policies for those with pre-existing conditions would not make financial sense for the insurance companies, or the premiums would be too expensive for those who were sick.

Many individuals in their twenties and thirties do not see the need for heath insurance, assuming they are unlikely to become seriously ill or injured and that it is a “waste” of money. They know that if necessary, they can always receive Emergency Room care without insurance, and think they will be able get coverage after the fact. And if medical expenses become crushing because of a major illness or injury, the involved person (having limited assets) can simply declare bankruptcy, erase the debt and start over. This is a prime example of moral hazard, where the economic risks of illness for uninsured people is placed on the backs of others.

Health insurance allows individuals to receive care without having to worry about financial ruin in case they are faced with unexpected medical expenses. An immediate expenditure of funds to buy coverage guards against the possibility of much greater losses in the future. Carrying health insurance requires men and women to take responsibility for their own well being and not be dependent on the social safety net should they fall ill. It is unfair to other citizens for uninsured people who can afford coverage to receive medical care. It means their care is paid for by government subsidies to hospitals (which is bourn by taxpayers) or by an increase in insurance premiums for all policyholders. However, as long as men and women know they can obtain medical treatment in Emergency Rooms or walk-in clinics, and that they will be hospitalized if necessary even without coverage, there is less incentive for them to purchase insurance. And bankruptcy is an easy way for young people who have not yet accumulated significant assets to discharge debt.

If the ACA or the individual mandate is voided by the Supreme Court, a way must be found to persuade reluctant citizens who have the financial means to buy health insurance. A law that prohibited medical facilities from providing care to those who did not have coverage would certainly be effective, but this is a non-starter. It contravenes societal and medical mores about treating sick or injured patients regardless of economic circumstances. A more realistic approach would be to enact a law that prevented medical expenses incurred by uninsured men and women from dismissal through bankruptcy. Citizens who were irresponsible and neglected to obtain insurance would be indefinitely liable for all their medical expenses, eliminating some degree of moral hazard.

If this measure were passed, those who were too poor to pay for coverage would enroll in Medicaid and those who could afford it would be more inclined to purchase insurance. Allowances would have to be made for people who were emotionally disturbed or mentally impaired.

Though not a perfect answer, the above strategy is a logical approach to the problem of citizens who choose not to purchase health insurance, shifting the cost of their care onto the government and those who have coverage. If the individual mandate or the Affordable Care Act is overturned, Americans who are not obtaining health insurance might be motivated to do so by legislation that does not let them off the hook for the medical expenses they incur.

Resurrecting Democracy
www.robertlevinebooks.com

To Cut Health Care Costs, Unnecessary Care Must Be Targeted

                                                                        Robert A. Levine   4-9-12

Until the Supreme Court makes a decision about the legality of the Affordable Care Act (ACA) and its provisions, health care is in limbo regarding legislation that might be enacted to control health care costs and provide care to the uninsured. However, the health of the economy and federal government demand that these costs be controlled.

Recent recommendations by physician panels that doctors reduce the frequency of commonly used tests and procedures because they are often unnecessary reinforces the importance of attacking unnecessary care as a way to constrain costs. This advisory was issued by the American Board of Internal Medicine Foundation. The president of the organization, Dr. Christine K. Cassel asserted that the uninsured would be able to get coverage without any increase in government spending and that rationing of care would not be required if only appropriate care was provided.

An article in the Archives of Internal Medicine last September reported that many physicians believed their own patients were receiving too much care. The Congressional Budget Office and a number of analysts have placed the amount of unnecessary care at about 30% of health care expenditures, or $900 billion out of a total of $2.7 trillion; a considerable saving waiting to be harvested.
While politicians have spoken about broad cuts to Medicare and Medicaid to shrink the nation’s budget deficits, they have not mentioned targeting unnecessary care as a way to lower overall health care costs. They do not want to antagonize the powerful stakeholders in the health care system who would suffer financially by legislation having this objective. These stakeholders include organized medicine, insurance companies, trial lawyers, pharmaceutical companies and hospitals.

To reduce unnecessary care, physicians’ incentives to order or perform tests and procedures must be eliminated, and the rationale for defensive medicine must be ended. The paths to achieve both of these goals are clear, but the obstacles in the way require heavy lifting on the part of Congress if they are to be removed.

In order to curb defensive medicine, the ordering of unnecessary tests and procedures by physicians to protect themselves against malpractice suits, malpractice reform is needed. Trial lawyers, who are major contributors to the Democratic Party, are strongly opposed to any major changes in the malpractice process. The current system, which does not work effectively for either patients or physicians, greatly benefits these trial lawyers. Peer panels to review cases before suits can go forward should be required, with their analysis allowed to be introduced at any trials. Caps on the amounts given to injured patients for pain and suffering should also be legislated.

Even more significant in reducing unnecessary care would be ending the incentives physicians have to perform excessive tests and procedures which help determine their incomes. This means finding an alternative paradigm in order to end the fee-for-service payments that drive unnecessary care. Other methods that could be employed include bundling of payments for particular services, capitation, or having physicians on salary. Over 30% are doctors are already on salary and as I’ve mentioned previously, I favor this course as being the simplest one to implement. There are many ways this could be done. It works for the Kaiser system, Cleveland and Mayo Clinics, and there’s no reason why it can’t be successful when applied broadly. Physician salaries could also be augmented related to their productivity, patient satisfaction and quality of care.

Overall health care costs are skyrocketing. Federal budget deficits are partially due to increased spending on Medicare and Medicaid. Curtailing unnecessary care is an obvious way to bring costs under control and reduce the budget deficits and national debt while putting more money into the more productive parts of the economy. Getting it done in the current Washington environment is another story.

Resurrecting Democracy
www.robertlevinebooks.com