More on the Constitutionality of Healthcare Reform: A Warning to Conservatives

According to multiple news sources, several state attorneys general are poised to bring legal challenges to the healthcare reform legislation.  According to most sources, the legal challenges will center around the constitutionality of the individual mandate.

Commerce Clause and Taxation Power
Most legal analysis I have found on this subject concludes that Congress has at least two sources of authority to mandate the purchase of health insurance. These include the commerce clause and the taxation power. The individual mandate is literally drafted as a tax on uninsured individuals. It is also part of a larger statute regulating interstate commerce -- which is a standard that the Supreme Court, including Justice Scalia, has approved to test the legitimacy of regulations of noneconomic activity. I have written on this subject before. Please feel free to read that analysis.

Irony
There is an interesting irony in many of the conservative objections to the individual mandate. Conservatives argue that Congress cannot use its commerce power to compel individuals to enter into commerce (i.e., purchase health insurance). While I would argue that Congress is really using its commerce and taxing power to entice people to cover the risks associated with their own health, that is a side argument.

Most importantly, conservative arguments in this area unwittingly support more expansive regulation. Here's why.

Conservatives believe that Congress cannot mandate that individuals purchase insurance. In order to avoid this outcome, Congress could have raised taxes on everyone, created a public plan, and fully subsidized participation by indigent uninsured individuals. This alternative is more expansive than the voted upon exchange system, coupled with a mandate. The latter option uses a market based approach. The public plan, however, represents government sponsorship of health care.  Yet, because the public plan would not involve coercion, it is presumably fine under existing commerce clause and taxation precedent -- according to conservative logic.

Clearly, conservatives cannot contest a public plan on constitutional grounds, as this is the same as Medicare, Medicaid, TRICARE, SCHIP and other government-sponsored plans.  Accordingly, Congress could have chosen this more expansive route, but this is certainly not what conservatives want.

Misstatements
Conservatives also argue that Congress has never used its commerce power to force individuals to engage in commercial activities. That point is not true.

Take two leading cases on the commerce clause: Wickard v. Filburn and Gonzales v. Raich. In Wickard, the Court upheld a production limit on wheat as applied to someone who produced and consumed "home grown" wheat. Congress did not want suppliers to produce more than the statutory maximum because doing so would result in lower prices.  The law was a basic price control. But for the homegrown wheat consumer, enforcement of this requirement would mean individuals had to purchase wheat on the open market.  The Court, however, validated this outcome.

In Raich, the Court (a 7-2 majority, including Justice Scalia) upheld the enforcement of federal drug laws that ban possession of marijuana. The Court concluded that the federal government could enforce the laws against someone who used homegrown marijuana for medical purposes. Consequently, the individual would have to purchase some alternative treatment on the open market (as in Wickard). This outcome, however, did not render enforcement unconstitutional.

Similarly, with respect to the insurance mandate, Congress has determined that the alternatives to having almost universal coverage are an impediment to commerce. Removing this impediment will require a few consumers who are uninsured to purchase insurance, but this is not a novel concept. It is true that the regulations in the other cases did not directly mandate that individuals engage in commerce, but this was the impact of the regulations in those cases.

Distraction
Even assuming that the Supreme Court finds the mandate unconstitutional, the Court would not then invalidate the entire statute. Instead, it would only invalidate the mandate itself. This would leave intact the many other components of the legislation that conservatives presumably loathe. Many conservatives, however, seem to believe that if the mandate is declared unconstitutional, that they have defeated healthcare reform. That is untrue. They will simply have defeated the mandate, which President Obama campaigned against in the first place.

Furthermore, if the Court invalidates the mandate, Congress could implement a voluntary public plan option (see above). It could also expand the income limits for Medicaid or lower the age requirements for Medicare to cover many uninsured individuals. Also, Congress could (and almost certainly would) continue to subsidize the purchase of insurance by individuals who cannot afford to do so. Accordingly, attacking the mandate does not seem to carry much promise for opponents of the legislation.  It could, in fact, open the door to more expansive approaches.

See also: Is Healthcare Reform "Unconstitutional"? No -- Why Rivkin and Casey Are Wrong

UPDATE: It is unclear that a state attorney general would even have standing to bring a suit in federal court regarding the mandate. The mandate applies to individuals, not to state governments. Also, the mandate does not take effect immediately. Federal courts could avoid this litigation altogether if standing does not exist.

House Democrat Louise M. Slaughter: Scrap Senate Healthcare Bill

Representative Louise M. Slaughter of New York has written an op-ed for CNN.com that urges Senators to scrap a controversial healthcare bill. Echoing complaints among many liberals, Slaughter criticizes Senate Democrats for scrapping the public plan option, which Democrats -- including President Obama -- have long argued would provide competition for insurance companies and reduce the cost of coverage. Slaughter also criticizes a compromise that would restrain the provision of abortion services to persons in federally subsidized health plans.

Slaughter's essay is located here: A Democrat's view from the House: Senate bill isn't health reform.

Russ Feingold Blames White House for Loss of Public Plan

In a statement offering "support" for the Senate healthare bill, Russ Feingold criticizes the White House for failing to support the public plan option:

Sunday, December 20, 2009

I’ve been fighting all year for a strong public option to compete with the insurance industry and bring health care spending down. I continued that fight during recent negotiations, and I refused to sign onto a deal to drop the public option from the Senate bill. Unfortunately, the lack of support from the administration made keeping the public option in the bill an uphill struggle. Removing the public option from the Senate bill is the wrong move, and eliminates $25 billion in savings. I will be urging members of the House and Senate who draft the final bill to make sure this essential provision is included.

But while the loss of the public option is a bitter pill to swallow, on balance, the bill still delivers meaningful reform, and the cost of inaction is simply too high. This bill significantly expands coverage and helps protect Wisconsinites from high costs and insurance company abuses, such as denying or restricting coverage based on pre-existing conditions. The bill also improves a flawed Medicare formula that denies Wisconsin fair reimbursement rates, encourages the kind of low-cost, high-value care practiced in our state, increases access to home and community-based long-term care, and reduces federal budget deficits by $132 billion over the next decade.

See also:

Criticizing President Obama Is Pragmatic

Rahm Emanuel Tells Liberals To Kiss His Arse

Liberals Battle White House Over Healthcare Reform

White House Shows Its True Colors on Healthcare Reform

Irrational Robert Gibbs Says Howard Dean Is Irrational

Salon's Glenn Greenwald Says: Blame Obama, Rather Than Lieberman

Why Is Obama Still Protecting Lieberman?

White House Shows Its True Colors on Healthcare Reform

After appearing asleep at the wheel during much of the healthcare debates, the White House is now passionately advocating passage of a Senate bill that betrays many of President Obama's campaign promises. The bill, if passed, would force people to purchase health insurance. The bill, however, does not contain measures like the public plan option or a Medicare buy-in that Democrats -- including Obama -- have long advocated as ways of increasing competition and making health insurance affordable.

According to several media reports, Rahm Emanuel instructed Senate Majority Leader Harry Reid to remove the public option and Medicare buy-in to appease Senator Joe Lieberman, who threatened to filibuster the bill. Lieberman, however, is probably a scapegoat.

Left Critiques of the Senate Bill
Several liberals commentators have condemned the Senate bill. Howard Dean, a medical doctor and a veteran advocate of healthcare reform, wrote an op-ed for the Washington Post which contends that the watered-down bill does not represent "real reform." Dean criticizes the removal of the public plan and Medicare buy-in provisions because he believes that the measures could reduce insurance premiums. Although Dean says he would not vote for the bill in its current format, he believes that Senators can improve it.

Furthermore, while many political commentators have focused on Lieberman's filibuster threats, Bernie Sanders, a Senator from Vermont, has threatened to withhold support for the Senate bill as well. Sanders, who, like Lieberman, is an Independent, says that the removal of the public plan option caused him to oppose the measure.

White House Bashes Liberals
With liberals voicing strong opposition to the measure, the White House, which has often appeared indifferent on the specifics of healthcare reform, has heated up its rhetoric. Yesterday, White House Press Secretary Robert Gibbs said that Dean was not acting rationally by opposing the bill. Today, White House Senior Advisor David Axelrod (who also ran Obama's presidential campaign) said that liberal opponents of the Senate bill are "insane."

Axelrod's argument, like Gibbs' claim, rests on an erroneous conclusion. Both men apparently believe that the public must either accept the watered-down Senate bill or abandon healthcare reform altogether. But liberals seek a viable alternative option -- pursuing more substantive and rational reform than the current bill offers.

My take: Liberals were actually "irrational" and "insane" for believing that the Obama Administration would deliver dramatic liberal reforms. I have made this argument repeatedly on this blog (see here, here, here and here, for example). To date, the administration of "change" has given hundreds billions of dollars to banks and corporate America and is about to offer a boon to insurance companies by mandating individual coverage without increasing competition and reducing costs. The more things change, the more they look the same.

See also: Rahm Emanuel Tells Liberals To Kiss His Arse

When Did Joe Lieberman Grow a Conscience?

Senator Joe Lieberman says that he will filibuster any health reform bill that contains a public plan option:

If the public option plan is in there, as a matter of conscience, I will not allow this bill to come to a final vote because I believe debt can break America and send us into a recession that’s worse than the one we’re fighting our way out of today. I don’t want to do that to our children and grandchildren.

A "matter of conscience"? When did Joe Lieberman grow a conscience?

This is the same man who voted to spend hundreds of billions of dollars in order to send "our children and grandchildren" to their deaths, hunting for nonexistent weapons of mass destruction. Today, when the country has the opportunity to spend money to heal the sick and to save lives, he is suddenly worried about the deficit.

This is also the same man who, during a 2004 presidential debate, supported the creation of a national public health plan:

I'm proposing to create a national health insurance pool from which — like the one that members of Congress get our insurance from. And we would say this: If you don't have insurance now, you'll be able to get it, probably free, if you're among the low-income working poor. If you're a child, you will be covered by insurance at birth. If you are fired from your work or lose your job, you will not lose your health insurance.

MediKids is part of my program. Every child born in America will become a member of MediKids, and it will cover them from birth through 25. . . .

Finally, this is the same man who in 1994 tried to kill the filibuster altogether. Lieberman described the filibuster as a procedural "dinosaur" and as a "symbol of a lot that ails Washington. . . ." Today, when Democrats are attempting to pass comprehensive health care reform, Lieberman threatens to use the filibuster to kill the legislation.

Lieberman says that he is acting to satisfy his conscience -- not the insurance industry, which has given him more than $1 million dollars in donations over the course of his career in the Senate and which has a powerful presence in Connecticut, the state Lieberman represents. Sorry, Joe, but in order to vote your conscience, you must first have a conscience.

Demented Senators? Voting to Kill, But Not to Heal

Hearing Mary Landrieu, Joe Lieberman and other moderates express discontent with a public plan option is too much to bear. These centrists say they oppose a public plan for various reasons, including expense. If they had exhibited such caution before they voted to authorize military force in Iraq, the country could possibly have avoided the unnecessary expenditure of hundreds of billions of dollars and the loss of thousands of lives fighting a senseless war.

Several moderate Senate Democrats (Lieberman is now an "Independent") voted to authorize military force in Iraq, but they now oppose the public plan. These Senators include Evan Bayh, Landrieu, Lieberman, and Ben Nelson. In 2002, every Senate Republican voted to authorize military force in Iraq. Today, every Senate Republican opposes the public plan.

These Senators voted to spend hundreds of billions of dollars to kill Iraqis and to lead young Americans to their deaths, but they refuse to finance life-saving medical care for Americans. Apparently, this is how "pragmatism" looks.

Was Reid's "Public Option" Move Simply a "Show"?

Earlier this week, Senate Majority Leader Harry Reid announced that proposed healthcare reform would include a "public option." Reid's announcement came while the Washington, DC rumor mill debated whether the White House truly supported a public plan. Shortly after Reid's announcement, Senator Joe Lieberman announced that he would not support a public plan. Lieberman, who has received over $1 million from the insurance industry during his career, claims that the public plan would harm the economy.

Without Lieberman's support, the public plan will lack the 60 votes needed to overcome a filibuster. It seems impossible that Reid could have made the announcement without realizing Lieberman's position. Ross Baker, a professor of political science at Rutgers University, argues that Reid's dramatic announcement regarding the public plan probably represents his effort to appease liberal backers, including labor unions and leftists:

You put on a good show for certain elements of the electorate and say with all candor that you tried your hardest and you got it debated, but it’s very difficult to corral 60 senators. . . .That will satisfy most people.

This theory sounds immensely plausible.

Senator Lieberman Would Vote to Block Legislation With Public Plan

Senator Joe Lieberman says he will vote with Republicans to filibuster legislation with a public plan option. Remarkably, some of the reporting on this issue fails to mention that Liberman has received over $1 million in donations from the insurance industry over the course of his political career.

Durbin on Public Plan: The Liberals Made Us Do It

Senator Durbin has stated that progressives forced the hand of the rest of the Senate Democrats and caused them to agree to a public plan with an opt-out provision. Olympia Snowe finds this "deeply disappointing," but I do not believe 60 Democrats should cater to one Republican.

Apparently advocacy works, but the political battle has not ended. Even though many articles have portrayed the public plan as a "done deal," the vote has not taken place yet. Furthermore, the conference committee process will produce any final version of the reform package.

Warning: Read the fine print, and carefully watch the proceedings after things go into conference committee. Liberal elements of legislation vanished during conferences earlier this year (e.g., forceful limits on executive pay).

Obama Releases Statement "Supporting" Public Plan, But In Washington, Talk Is Cheap

President Obama has released another statement indicating his support for the inclusion of a public plan in healthcare reform. The statement comes after a new round of rumors portray him as unsupportive of a public plan option.

Last week, a coalition of liberal groups sent a letter to the White House demanding that President Obama lobby strongly for the public plan option. The difference between "lobby" and "support" probably means a lot in this context.

Although Obama has stated his support for the public plan, some liberals believe that he is not exercising the leadership needed to make inclusion of the plan in legislation a reality. Also, NPR's Tavis Smiley says that Senator Charles Schumer told him off-the-air that Obama was "noncommittal" on the public plan in a closed-door meeting with Senators last week.

Supporting the public plan does not mean fighting for it. So, perhaps the liberal groups were correct to demand more than Obama's support.

Progressive Coalition Sends Letter to White House Urging Implementation of "Robust" Public Plan

Several liberal groups have written a letter (thanks to the Plum Line) demanding that President Obama lobby strongly for a "robust" public plan. Although Obama campaigned on the promise of a public plan, his support for it since the election has been less than certain at times. But progressive protest lives on -- despite some opposition to dissent among liberals.

Several liberals, including Representative Maxine Waters, have asserted that Rahm Emanuel has given political cover to fiscally conservative -- or "Blue Dog" -- Democrats, who do not support the public plan. Emanuel, the White House Chief of Staff, was himself previously associated with the Democratic Leadership Council -- a group of moderate, pro-business Congressional Democrats. The coalition's letter is addressed directly to Emanuel.

Here is the list of organizations that have signed the letter:

African American Health Alliance
Alliance for Health Care
American Federation of Government Employees
American Medical Student Association
Campaign for America's Future
Campaign for Better Health Care, Illinois
Campus Progress
Center for Policy Analysis
ColorOfChange.org
Commonwealth Institute
DemocraciaUSA Action
Democracy for America
Disability Rights Education and Defense Fund
Doctors Council of the District of Columbia/NUHHCE/AFSCME
Dolores Huerta Foundation
Equal Justice Society
Faith United Church of Christ
Future Majority
Generational Alliance
Ian Mackey, Democratic National Convention Delegate 2008
LULAC
Matt Adler, Democratic National Convention Delegate 2008
Metro New York Health Care for All Campaign
Metropolitan Washington Council, AFL-CIO
MoveOn.org Political Action
NAACP
National Black Nurses Association
National Center for Lesbian Rights
National Physicians Alliance
National Union of Hospital and Health Care Employees
National Union of Hospital and Health Care Employees 1199J
OpenLeft.com
Out of Many, One
People For the American Way’s African American Ministers in Action
Peoples Congregational United Church of Christ
Plymouth Congregational United Church of Christ
Power PAC
Progressive Congress Action Fund
Progressive States Network
Racial and Ethnic Health Disparities Coalition
Raising Women's Voices for the Health Care We Need
Religious Action Center of Reform Judaism
Roger Manno, Maryland State Delegate
Roosevelt Institute Campus Network
The Cave Institute
The Honorable Shirley Nathan-Pulliam, Maryland State Delegate
United Church of Christ, Justice and Witness Ministries
United Methodist Church – General Board of Church and Society
Universal Health Care Action Network
US Action
Young Americans for Healthcare Reform
Young Invincibles

55 Congressional Republicans Oppose "Public Plan" But Enrolled in Medicare!

Representative Anthony Weiner, a New York Democrat who sits on the House Health Subcommittee, has released an "internal study" that seeks to expose the hypocrisy among Republicans who oppose the idea of a public, government-sponsored health plan. Weiner's study lists the names of 151 members of Congress who receive Medicare benefits. The study also lists 55 Republicans who benefit from Medicare, but who oppose a public plan -- which would provide a new, low-cost health insurance option for millions of uninsured Americans.

Medicare is a government-run, taxpayer-sponsored health plan for seniors. It operates as the single payer for most seniors, who cannot afford the cost of private insurance.

Update: This article was edited to reflect that fact that Weiner's study lists 151 members of Congress on Medicare and 55 Republicans on Medicare who also oppose a public plan.

Shame on You, Landrieu: Senator Opposes Public Health Plan

The Associated Press reports that several Democratic Senators might vote against any proposed healthcare measure that contains a public plan. The article quotes Senator Mary Landrieu of Louisiana, who says that she is "not for a government-run, national, taxpayer-subsidized plan, and never will be."

I respect ideological independence, and I acknowledge and am comfortable with the fact that many Democrats are moderates. Landrieu's position, however, does not reflect intellectual consistency or honesty.

Louisiana: Abundance of Poverty, Scarcity of Health Care
Among the 50 states, Louisiana has the second highest percentage of people living in poverty. Landrieu's position on government-sponsored healthcare does not respond to the needs of poor individuals who live in her state.

Because of the high rate of poverty in Louisiana, many residents of the state already receive healthcare through a "government-run, national, taxpayer-subsidized plan" -- which Landrieu supposedly opposes. Despite this taxpayer-sponsored coverage, many of the state's residents remain uninsured and unhealthy.

Louisiana Ranks as Nation's Least Healthy State
According to the 2008 America's Health Rankings survey -- an annual report issued by the United Health Foundation -- Louisiana ranks as the nation's least healthy state. The report considers many individual and community statistics.

As for specific health categories, Louisiana ranks 49 in infant mortality, cancer deaths, and premature deaths; 48 in preventable hospitalizations; 47 in prevalence of obesity; 45 in cardiovascular deaths; and 41 in smoking

27% of Louisianan Residents Enrolled in Medicaid
According to the most recent data reported by the Louisiana Department of Health and Hospitals (LDHH), a whopping 27% of state residents are enrolled in Medicaid. Medicaid is a government-run, national, taxpayer-sponsored health plan for indigent people.

21% of Louisiana Adults Are Uninsured
According to the most recent data reported by the LDHH, 21% of Louisiana's non-elderly adults lack health insurance. This exceeds the national rate of 16%.

The high cost of insurance precludes most of the state's uninsured individuals from purchasing coverage. Landrieu's opposition to a public plan is shocking in light of this group's unmet medical needs.

Per Patient Medicare Expenditure Highest in Louisiana
Although Landrieu despises government-run healthcare, per patient Medicare expenditures in Louisiana rank higher than in any other state. Unfortunately, the state also has the lowest quality outcomes for Medicare patients.

Children's Health Insurance Rate Has Increased -- Due to Government-Run Health Insurance
Only one bright spot appears in Louisiana's health statistics. The percentage of uninsured children has fallen dramatically over the last decade. The rate has decreased for one reason alone: the federal government created and expanded participation in SCHIP -- the State Children's Health Insurance Program.

A 10-year analysis of Louisiana's uninsured population by the LDHH makes the following conclusion: "The child uninsured rate decreased 12.9 percentage points from 1998 to 2007. This large reduction in the rate of uninsured children is attributable to the introduction of [Louisiana's SCHIP plan] and its rapid expansion." SCHIP -- which is undeniably a government-run, taxpayer sponsored health plan -- has provided necessary medical services to tens of thousands of children in the State of Louisiana.

It is also worth noting that, while Landrieu was not a Senator in 1997 when Congress enacted SCHIP, when the program came up for reauthorization in 2007, she voted in favor of the legislation. Bush vetoed this measure and a second one that Congress passed. In 2009, however, Congress again passed legislation to extend and expand SCHIP. Landrieu voted for that measure, which Obama signed into law.

What Is Going On With Landrieu?
Landrieu is clearly playing politics. She is taking a position that is ultimately unhelpful for many people in her state because Louisiana conservatives (many of whom apparently vote against interest) could cause her to lose her job if she votes for a public plan. The "reading" public, however, should not allow Landrieu to place her career above the indigent residents of her state without exposing the terms of her gamble. Consider this as notice.

What's In a Name? Some Dems Want to Rename "Public Option" as "Medicare"

In several blog entries, I have analyzed the perplexing (and immensely annoying) hypocrisy of many Republicans and conservatives who blast "government-run" healthcare, while claiming to support Medicare. In September, a PPP poll revealed that 62% of Republicans supported the idea that the government should "stay out of Medicare." This argument, however, is patently unsound because Medicare is a government-run and government-created health plan.

Also, many conservative bloggers (rightfully) criticized a recent violent attack against an elderly man who attended a rally protesting healthcare reform. These bloggers, however, conveniently neglected to report that the victim of the assault went to an emergency room and received treatment covered by (drum roll) Medicare (also known as a government-run health plan or public plan).

Even Joe "You Lie" Wilson is guilty of speaking out of both sides of his mouth. Although Wilson has blasted government-sponsored health plans as "unnecessary and unacceptable," he strongly praises and benefits from TRICARE, the government-run plan for military personnel, veterans and their families.

Although opinion polls continue to show that voters support the public plan option, many voters seem confused about the meaning of a "public plan" and the extent to which the federal government and states fund medical treatment. Nearly 1/3 of the public is covered by government-sponsored health insurance. In addition, workers who have "private" insurance health plans receive large governmental subsidies because these plans do not qualify as "income" for tax purposes. Only a small fraction of Americans actually purchase their health insurance out-of-pocket -- without governmental or employer support.

Dealing With Hypocrisy: Renaming the Public Plan
Apparently, some members of the House of Representatives realize the importance of framing and politics. According to an article in The Hill, some House Democrats want to rename the public option as "Medicare." This would link the supported -- though maligned -- public plan with an already established and popular government-sponsored program. The strategy would also force hypocritical politicians to confront the contradictory nature of their arguments that dismiss the public plan as "socialized medicine" but simultaneously seek to defend Medicare.

Reid: Senate Will Pass a Public Plan

Yesterday, the Plum Line released Obama administration talking points which state that the public option is a "small" part of healthcare reform. Also, the Senate Finance Committee has rejected two different public plan proposals. But Senator Harry Reid says that the Senate will eventually pass a public plan option. According to Reid: "[T]he public option is so vitally important to create a level playing field and prevent the insurance companies from taking advantage of us. . . ."


The Finance Committee has accepted an amendment that would allocate funds to states for them to create public plans. Presumably the amendment would also establish guidelines for the use of this money. Otherwise, this alternative could prove even costlier than having a national public plan. This option would certainly get rid of any constitutional questions regarding mandated care. Congress could give states money for healthcare reform on the condition that they require coverage. This sounds like a permissible use of the Spending Power and a lawful use of the states' police power.

Senator Grassley Forced to Admit that Medicare Is "Government-Run" Healthcare

Yesterday, the Senate Finance Committee voted to reject two separate healthcare reform measures introduced by Charles Schumer and Jay Rockefeller respectively. Both proposals would have added a public plan option to a pending bill.

During the hearing, Republican senators, undaunted by truth and consistency, blasted "government-run" healthcare. Apparently tired of the hypocrisy, Schumer asked Senator Grassley (the King of Hypocrites in this area) whether he supported Medicare - which is a public (i.e., government-run) health plan.

Initially, Grassley tried to obscure the governmental nature of Medicare by describing it as "part of the social fabric of America." That is a patently weak answer. Medicare only became a part of the "fabric of America" due to federal regulation, and conservatives opposed the implementation of Medicare by describing it as "socialized medicine." Grassley, however, eventually conceded that Medicare is a government-run plan.

Thanks to TPM, here are Grassley's comments:

New Poll: 73% of Doctors Favor Socialized Medicine, Rationing of Care, Death Panels, Nazism, and Pulling Plug on Grandma

A new poll conducted by researchers at the Mt. Sinai School of Medicine in New York shows that 73% of doctors favor socialized medicine, rationing of care, death panels, Nazism, and pulling the plug on grandma. Actually, they favor some type of public plan option as a part of healthcare reform. 10% of doctors want a public-only format, while 63% favor a public-private mix. Only 27% want a private-only system.

Conservatives have described a public plan option as socialized medicine, a governmental takeover of healthcare, Nazism, and several other horribly deceptive labels. The providers of medical care, however, overwhelmingly support a public plan option.

It is time for the country to listen to medical professionals, rather than angry and uninformed people marching around with disgusting and tasteless signs (suggestive of racism and violence) and shouting deceptive propaganda while returning home to worship Jesus. I certainly trust doctors more than this motley crew.

Joe Wilson: Healthcare Hypocrite

Two words -- You Lie! -- have brought Representative Joe Wilson greater national scrutiny than anything he has previously said or done. Wilson, a South Carolina Republican, shouted disagreement with President Obama during his recent speech to Congress regarding healthcare reform.



Healthcare Hypocrisy: Wilson's Contradictory Stances on Governmental Health Plans

The most intriguing and relevant news regarding Wilson surrounds his hypocritical stances on "government-run" healthcare. Wilson argues that "[a] government-controlled system would limit choice and quality by letting politicians and bureaucrats determine your level of care in order to bring down costs. That is unnecessary and unacceptable."



In July 2009, however, Wilson spoke very glowingly and intimately about TRICARE, the government-administered and funded health plan for military personnel, veterans and their dependants:

As a 31-year Army Guard and Reserve veteran, I know the importance of TRICARE. I know it is important for the military personnel and families at the bases I represent . . . .I am grateful to have four sons now serving in the military, and I know that their families appreciate the availability of TRICARE.



Currently, TRICARE provides world class health care to 9.4 million beneficiaries. . . .TRICARE. . .is a low cost, comprehensive health plan. . . .[I]n 2008 TRICARE was rated the best health care insurer in the nation according to the Wilson Health Information survey of customer satisfaction. TRICARE also received stellar marks on the 2007 annual federal government report from the 2007 American Customer Satisfaction Index. . . .



I believe that TRICARE is one part of our health care system that’s working. . . . I believe that our military personnel and their families. . .like what they have. . . .

As a veteran, Wilson qualifies for TRICARE. According to his own words, his four sons and their families and many of his constituents rely upon TRICARE. Although Wilson offers high praise for TRICARE, he argues that allowing "politicians and bureaucrats" to determine the level of care in order to lower costs is "unnecessary and unacceptable." Politicians and bureaucrats, however, administer TRICARE and determine the level of care for participants. Also, federal law makes cost-effectiveness a primary goal of TRICARE administration.



Earth to Wilson: TRICARE = Public Plan = Government-Run Health Program = Government-Sponsored Health Plan

Congress created and funds TRICARE. The Secretary of Defense administers TRICARE. Although Congress has mandated that TRICARE cover certain broad categories of medical services, the Secretary of Defense issues the specific plan materials, which establish covered and excluded treatments under the various available plans as well as the obligations of participants. Like all other federal regulations, TRICARE policies are contained in the Code of Federal Regulations (or CFR).



Because the government has the exclusive authority to determine the treatments covered by TRICARE:



Unless TRICARE participants have other health plans or the money to self-pay, then the scope of their allowable medical treatment is determined by "politicians and bureaucrats" -- not by doctors and patients. The government does not mandate that individuals participate in TRICARE, but if they do, they can only receive services authorized by the federal government (unless they have another plan or elect to self-pay).



Government health plans, however, are typically very comprehensive and usually less expensive than private insurance plans. Wilson does not explain why only military personnel (or seniors) should benefit from comprehensive and relatively inexpensive medical services.



TRICARE "Death Panels" and "Interference With the Doctor and Patient" Relationship

The CFR contains TRICARE plan materials. A review of the regulations demonstrates the close involvement of the federal government in the medical services of plan participants. The discussion below provides examples of some areas of covered and excluded services.



1. Federal regulations allow reimbursement of costs associated with the provision of counseling to terminally ill patients, including counseling "for the purpose of helping the individual and those caring for him or her to adjust to the individual's approaching death" (see pg. 137).



2. Federal regulations, however, disallow reimbursement for "unnecessary diagnostic tests," which the government defines as "X-ray, laboratory, and pathological services and machine diagnostic tests [except for certain cancer screenings] not related to a specific illness or injury or a definitive set of symptoms."



3. Federal regulations do not permit reimbursement for "unnecessary postpartum inpatient" treatment of a mother or newborn -- when only one of the two needs extended hospitalization (e.g., will not pay for mom to stay in hospital when newborn needs hospitalization). This includes stays to allow the mother to breastfeed the infant (see pg. 147).



4. Federal law does not permit TRICARE to pay for the use of an "unproven" "drug, device, or medical treatment or procedure." This prohibition covers any drug or device that lacks FDA approval or clearance (see pg. 148) and any treatment or procedure that has not been subjected to a sufficient number of well controlled clinical studies (see pg. 149).



The multiple-page partial list of excluded drugs, devices, procedures and treatments includes in utro fetal surgery, treatment of chronic fatigue syndrome, gastric wrapping/banding, intestinal bypass, and "high dose chemotherapy with stem cell rescue" to treat breast cancer (with limited exceptions), ovarian cancer, or testicular cancer (see pp. 149-151).



5. Federal regulations provide that "[TRICARE] benefits for rare diseases are reviewed on a case-by-case basis" (see pg. 149).



6. Federal law requires participating medical providers to accept as full payment for TRICARE-covered services the co-pay and/or deductible, plus the amount that the government establishes an allowable expense for the particular service category (see pg. 167).



This short list represents just a few ways in which the government shapes the terms of the doctor-patient relationship for people who choose TRICARE as a service payer. For example, doctors cannot cannot collect more than the allowed amount for any services. Also, psatients cannot elect to undergo excluded services -- unless of course the individual has supplemental coverage or can self-pay.



Furthermore, as the statute and administering regulations state, cost-effectiveness is a central goal of the program. Conservatives, however, argue that cost-effectiveness is impossible without compromising care. If that is the case, then to the extent that TRICARE is cost-effective, it does so by compromising the care of participants.



Finally, the Democrats' reform proposals would not curtail services covered in private health insurance policies. Instead, the proposals would augment the rights of policyholders by prohibiting denial of coverage for preexisting conditions, the cessation of coverage after the insured has reached a lifetime maximum level of benefits, and the canelation of policies if individuals develop a particular illness. The government would determine the specifics of a public plan option, but Medicare and TRICARE demonstrate that the government can perform this function and maintain comprehensive coverage. If Wilson wants to challenge liars, he can start at home.

Is President Obama's Position on Public Plan Really "Unclear"?

MSNBC reports that President Obama's position on having a "public plan" option compete with private insurance remains unclear two days before his speech on healthcare reform. White House political advisor David Axelrod addressed the issue during an interview with the Associated Press (reported by MSNBC):

The president "believes it should be in the plan, and he expects to be in the plan, and that's our position," Axelrod told The Associated Press.

Asked if that means a public plan has to be in the bill for Obama to sign it, Axelrod responded: "I'm not going to deal in hypotheticals. ... He believes it's important."

The president "believes the public option is a good tool," said Axelrod. "It shouldn't define the whole health care debate, however."

White House Press Secretary Robert Gibbs also recently addressed the issue:

[]Gibbs . . . said the president believes a government plan would be "a valuable tool." But Gibbs danced around the question of whether it has to be in the final legislation.

Asked if Obama would sign legislation that lacked a government plan, Gibbs responded: "We're not going to prejudge what the process will be when we sign a bill, which the president expects to do this year."

Asked if Obama would say in his speech that he'd veto a bill without a government plan, Gibbs responded: "Well, I doubt that we're going to get into heavy veto threats on Wednesday."

I am not sure that this position is ambiguous. I think Axelrod and Gibbs are saying that Obama will "support" a public plan option, but that he will sacrifice it in order to pass other components of the legislation.

What Voters Need to Hear About a Public Plan
Voters need an honest discussion of the public plan -- not sensational discourse about socialized medicine and death panels. They need to know how the public plan relates to overall reform objectives (cost savings, expanding access to medicine, etc.). They also need to consider whether and how it will impact the delivery of medicine and whether these changes, if any, are good or bad for patients.

Voters also need to hear realistic opinions regarding the cost of the public option. Although the government certainly would have to fund it initially, the White House says that the plan would become self-sustaining due to premiums paid by policyholders. Republicans actually buttress this assertion when they argue that private insurers cannot compete with a public plan. If the public plan attracts millions of insured individuals from private insurance, then there is a greater chance that premium payments can sustain it.

If the public option does not win support, voters needs to consider whether other aspects of healthcare reform should advance without it. I wonder, for example, whether it is wise or fair to mandate coverage without a viable alternative that reduces the overall cost of health insurance.

What Voters Need to Hear About the Status Quo
If voters are truly worried about fiscal policy, they need to consider the budgetary impact of the status quo. Federal and state governments heavily subsidize "private" employer-sponsored health plans by not treating the benefits to employees as income and allowing employers to deduct contributions as business expenses.

The subsidization of employer health plans, which is the largest of all federal "tax expenditures," substantially reduces tax revenue collected by federal and state governments. The "tax break" is also regressive because a greater percentage of higher income earners have employer-sponsored health plans than low-income workers.

Presently, universal, public plans are available for the elderly (Medicare), the extremely poor (Medicaid), and children in certain households (SCHIP). The government also substantially funds healthcare for workers -- largely those in big companies. I would love to hear a justification for covering or assisting these groups but denying coverage for the 47 million uninsured Americans, who include millions of workers and their children.

A Mind Is a Terrible Thing to Waste: 62% of Repubs. Believe "Government Should Stay Out of Medicare"!

I have consistently reminded readers that Medicare is the largest public health plan in the nation. It is administered by the federal government, which acts as a single-payer of primary medical expenses for people over 65.

Many Republicans have blasted public plans as "socialized medicine," but they have simultaneously tried to scare seniors into believing that the Obama administration wants to hurt Medicare recipients. Last week, the GOP released a Healthcare Bill of Rights for Seniors that opposes government involvement in medical services, but which promises that the Republican Party will protect Medicare.

Believing the Impossible
Apparently, the contradictory rhetoric has impacted many Republican voters. According to a new PPP poll, 62% of Republicans, as opposed to 24% of Democrats and 31% of Independents, support the idea the the "government should stay out of Medicare." As TPM observes, this is a factual impossibility: The government cannot "stay out" of a government-run health plan. Apparently, a solid majority of Republicans either wants to abolish Medicare or believes that it is a private health plan. Oy vey!