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US:landmark healthcare battle [Social Policy]

Obamaが the patient protection and affordable care act but derided by its opponents as "Obamacare"をサインしてから先週の金曜日が丁度2年目になるので,アメリカの各紙もこのObamacare の命運について,専門スタッに担当させて記事を掲載していますが,客観的に見ているという意味で,イギリスのThe Guardian紙の記事をご紹介します.

もちろん,主題は,最高裁の判断を巡る議論です.どこも最高裁の判断について大胆な予測をしていませんが,The Guardian は合憲判断推測に傾斜しているといえそうです.

先ず書き出しで, it is likely to prove the most politically significant constitutional decision in years, and the outcome could shape the future of Obama's presidency.と,近年でたいへん重要な憲法判断になり,再選を控えたObama 大統領の将来にも大きな影響をもたらすだろうと予測しています.

保守派にとっては,政府が保険を買うことを強制するのは,the healthcare law violates the constitution and tramples on individual freedoms by requiring almost all Americans to buy health insurance.と,アメリカの基本的自由権の侵害だという主張になるでしょうし,
Obama政権にとっては,これは極めて重要なthe most important piece of social justice legislation of recent times という立場であり,それがもし違憲判断に至れば,Obama の大統領再選は一挙に危ぶまれることになります.

said Professor Michael Dorf, a constitutional law scholar at Cornell law school. The reason it would be important would be because it would have struck down the signature domestic policy accomplishment of a president. In that sense, the political stakes in this case are higher than in any case since Bush v Gore(2000年の大統領選挙が極めて接戦で,決定が最高裁に持ち込まれたケース).

Conservatives – Republicans and Democrats – generally loathe the healthcare law in its entirety, claiming that it will lead to bureaucrats replacing doctors in making medical decisions and a diminishing of the quality of healthcare. But the reforms are also widely unpopular among many less political Americans who have so far seen few benefits as the changes kick in.

Popular opposition helped galvanise the Tea Party movement. The House of Representatives, now under Republican control, has held a largely symbolic vote to repeal the legislation.

The principal challenge focuses on a legal requirement for almost every American to buy health insurance in order to make it affordable for millions more people by spreading the risk and cost.

"It's a constitutional power that if recognised would be a fundamentally dangerous new power that the government would have."

The Obama administration has countered that regulation of the health industry, which accounts for 18% of the US economy, is essential to control spiralling costs that have contributed to tens of millions of Americans having no medical coverage.アメリカの医療費はアメリカ経済の18%に及ぶそうですが,その高騰こそが数千万の人たちを無保険に追い込んでいるのだから,コストを広く分担して,保険料を抑制するしか,社会的立法は不可能だという主張になるのです.

The legal path to the supreme court


ほとんど法律成立直後から,いくつもの訴訟が提起され,これまで,連邦地方裁判所レベル,連邦控訴審レベルで,異なる判決が下されてきました.
憲法に違反しないという判断から,個人の自由への侵害だとする判決まで,そして,個人が保険を買うことを強制するのは違憲だけれども,その他の部分は合憲とする判断から,個人への強制が違憲であり,法律全体が無効だとする判断まで分かれていました.

直接,連邦最高裁の審議を求めることになったのは,the ruling being taken up by the supreme court was handed down in a federal district court in Florida.でした.

In January 2011, Judge Roger Vinson ruled in a legal action by 26 states that the individual mandate is unlawful and therefore the entire health care reform law is unconstitutional.
Eight months later, an appeals court upheld Vinson's ruling on the individual mandate but ruled that it could be separated from the rest of the health care law which should be permitted to remain on the books.

この段階で,連邦司法省が,連邦最高裁の審議を求めたモノです.

争点1.Tax vs fine

大きな争点のひとつは,医療保険を買わない人から強制的に徴収するお金は「税金」と考えるべきか,「罰金」と考えるべきかということにあります.
罰金と考えると「違憲問題」を生じますが,形を変えた税金と考えれば,それは合憲となります.

また,たとえ「罰金」だとしても,それは法律が施行されて,実際に「罰金」を課されて見なければ,裁判所の問題にはなり得ないのです.

ここでは,法律全体が,裁判所が今年6月に判決する対象にならなくなります.

争点2:The commerce clause

Arguments already submitted in briefs to America's highest court centre on interpretation of a clause in the constitution that gives Congress the authority to regulate commerce between US states. The precedent was set 70 years ago when the supreme court ruled in the case of an Ohio farmer who challenged the government's right to control how much wheat he could grow for his own use.

個人の自由と関わって,世界大恐慌の最中に,オハイオ州の農家が,連邦政府の小麦生産調整に対して,自分の消費する小麦をどれだけ作るかは個人の自由ではないかと訴えを提起した時に,既に判決された事例があるのです.

この時に,連邦最高裁は,1件の農家が生産調整に加わらなければ,それは農産物市場を回り回って他の州の農家にも影響するとして,連邦政府の生産調整を合憲と判断したのです.

今回も,政府側は,これに習って,The government is pressing a similar argument in its defence of the legal requirement for almost all Americans to buy health insurance. It says that millions of people have been prevented from taking out insurance in part because it was unaffordable – particularly for those with poor health.
The healthcare law seeks to make insurance accessible by requiring almost everyone to take out policies so as to spread the cost of treatment.
と強調するはずです.

争点3 Activity v inactivity

Opponents of the law say there is a fundamental difference between Filburn growing wheat and a modern-day American refusing to buy health insurance. Filburn was being prevented from doing something he wished to do, whereas the health care law forces people to buy insurance against their will. Opponents say that the law is in essence "regulation of inactivity".は,上述の先例とは根本的に違うという主張があります.それは不作為の規制になり,無限に拡大される危険性があるというのです.

What we're being told is that because the decision not to buy something is an economic decision and that economic decision effects either interstate commerce or the ability of Congress to regulate it, therefore Congress can make people buy things. Well, that rationale is without limits."

The mandate imposes an extraordinary and unprecedented duty on Americans to enter into costly private contracts. By commanding citizens to subsidize voluntary participants in the insurance industry through disadvantageous contracts, it exemplifies the threat to individual liberty that occurs when Congress exceeds its limited and enumerated powers.

争点4 Whether to scrap the whole law or part of it

the commerce clause of the constitution に違反するとして違憲判決となった場合,Obamacare の全体を無効とするのか,一部だけ無効とするかの判断を迫られます.

実は政府も訴訟提起者側も, the individual mandate is a key component without which the law cannot work. という点では一致しており,So the court has hired a lawyer to make the alternative argument that the rest of the legislation can remain in place even if the requirement for compulsory insurance is struck down. という準備もされているといいます.

"The government itself concedes that the individual mandate cannot be disconnected from the regulations that are being imposed on the insurance companies," he(Barnett) said. "You pull the heart out of a body and the body dies. The bill is remarkably interconnected and I don't think the act could survive as Congress intended it to if you take those parts of it away."

視点1 The Lawyers 

The government will be represented by the US solicitor general, Donald Verrilli, who has a long history with the supreme court, having served as a law clerk to the late justice William Brennan. Later, he argued a dozen cases before America's highest court.

Verrilli will be facing down Paul Clement, solicitor general under George W Bush, who will be arguing for the 26 states challenging the healthcare law.

Private business interests that are part of the action against the healthcare reforms will be represented by Michael Carvin, who argued for George Bush at the Florida supreme court in his battle against Al Gore over whether there should be a recount of votes cast in the state in the 2000 presidential election. Carvin worked in several justice department posts in the Reagan administration.

The supreme court has appointed its own lawyers, Robert Long and Bartlow Farr, to offer alternative opinions to the shared views of the government and its opponents that the case should be heard immediately, rather than when someone is penalised for not taking out health insurance, and that if the individual mandate is ruled illegal, the whole of the health care law will collapse.

視点2 The justices

There are nine supreme court justices, although some conservatives would like to see it down to eight. They argue that Elena Kagan should recuse herself because she was Obama's solicitor general when the administration began planning its legal defence of the healthcare law. That looks unlikely to happen.

"Historically, there's always been criticism of that the court is politically biased," said Dorf. "Usually it's by people who disagree with the outcomes and that's depending on the political whims, that can be almost anybody. That could cut either way. It could lead to the justices wanting to trim their sails, it could lead to particular justices wanting to dig in their heels."

The public is not confident.
という一文を,このBlog の結びとします.

ただ,日本の社会保障法学者が,しばしば自由権と社会権を融通無碍に使い,日本国憲法第13条「幸福追求権」を社会権的に解釈していたような御都合主義は,ぜひ,見たくないモノです.

社会権を重視したワイマール憲法が,あっさりとナチズムに道を開いた歴史を忘れてはならないでしょう.

 

US supreme court and America ready for landmark healthcare battle

With an election looming, the country's highest court will soon hear the most politically significant case since Bush v Gore

Opponents of the proposed US healthcare

Opponents of the US healthcare bill are pictured during a rally outside the Capitol Building in March 2010. Photograph: Jason Reed/Reuters

There are a few things both sides agree on in the coming supreme court battle over Barack Obama's signature healthcare reforms. One of them is that it is likely to prove the most politically significant constitutional decision in years, and the outcome could shape the future of Obama's presidency.

For some conservatives, at stake is a question of fundamental liberties, characterised at its most extreme as to whether the government can force people to eat their brussel sprouts or go on a diet. For the government, the supreme court hearing beginning on Monday is an opportunity to defend what it regards as the most important piece of social justice legislation of recent times. But if the ruling, expected in June, goes against the president it could prove a severe blow to his campaign for re-election.

The court will hear a challenge by the attorneys general of 26 states and private business interests who argue that the healthcare law violates the constitution and tramples on individual freedoms by requiring almost all Americans to buy health insurance.

With an election looming and the public sharply divided on the healthcare reforms, the hearings are the most politically loaded since the court handed George Bush the presidential election over Al Gore in 2000. They are also scheduled to be the longest in recent history with nearly six hours set aside to hear challenges to the law.

"I think the court recognises the extraordinary importance of the case, not so much because of the jurisprudential issues but because of the political impact," said Professor Michael Dorf, a constitutional law scholar at Cornell law school. "Suppose that the justices agree with the plaintiffs and say that this law exceeds the power of Congress, there are many ways Congress could get around that limitation and still have all of the power it has. The reason it would be important would be because it would have struck down the signature domestic policy accomplishment of a president. In that sense, the political stakes in this case are higher than in any case since Bush v Gore."

The law, officially called the patient protection and affordable care act but derided by its opponents as "Obamacare", was passed two years ago as a sweeping reform of the healthcare insurance industry. It is intended to extend insurance coverage to more than 50 million Americans who were priced out of the market and to end a slew of immoral practices that led to people losing their homes to pay medical bills after their insurance was cut off.

Among other things, the new law bars discrimination such as higher insurance rates for women and people with chronic illnesses. It ends the common practice of insurance companies cutting off coverage when people fall ill and bars limits on the long term cost of providing care.

There are a raft of other measures that kick in before the legislation is fully implemented in 2015.

Conservatives – Republicans and Democrats – generally loathe the healthcare law in its entirety, claiming that it will lead to bureaucrats replacing doctors in making medical decisions and a diminishing of the quality of healthcare. But the reforms are also widely unpopular among many less political Americans who have so far seen few benefits as the changes kick in.

Popular opposition helped galvanise the Tea Party movement. The House of Representatives, now under Republican control, has held a largely symbolic vote to repeal the legislation. Obama's opponents for president have promised to overturn the law if elected. Political fights have flared over individual elements such as the requirement for health insurance to cover contraception.

Residents of Missouri and Ohio have voted not to implement the legislation in their states, although it is legally doubtful they can refuse. Virginia has passed a law to the same end.

But in the supreme court, the assault on the legislation is narrower, even if the outcome could be to cause the collapse of the entire reforms.

The principal challenge focuses on a legal requirement for almost every American to buy health insurance in order to make it affordable for millions more people by spreading the risk and cost.

Conservatives say that is an infringement on their freedom with "big government" telling them what they must do. Some have argued that if Washington can force people to buy health insurance it can oblige them to join Weight Watchers or eat their vegetables.

"If the government can force us to buy health insurance it can force us to buy cars to prop up Detroit or stocks and bonds to prop up Wall Street," said Betsy McCaughey, a conservative Democrat and former lieutenant governor of New York.

Randy Barnett, a lawyer for business interests that have brought the action at the supreme court alongside the states' attorney generals, said the legislation is unconstitutional because for the first time Congress obliges most Americans to buy a product from the private sector with no means of opting out.

"They're trying to funnel money out of people's pockets into the pocket of the private insurance companies. It's a difference between a tax, which is a power the Congress has, and the power to take money from a person and direct it to a private company which is a power they don't have," he said. "It's a constitutional power that if recognised would be a fundamentally dangerous new power that the government would have."

The Obama administration has countered that regulation of the health industry, which accounts for 18% of the US economy, is essential to control spiralling costs that have contributed to tens of millions of Americans having no medical coverage.

The legal challenges have been dismissed as little but politicking by some judicial conservatives. Charles Fried, solicitor general under President Reagan and now a Harvard law school professor, has described the lawsuits as "grandstanding in a preposterous way".

"It is simply a political ploy and a pathetic one at that," he said.

But the politics is not always as straightforward as it may seem.

Obama has embraced the legal challenge as a useful weapon against his likely Republican opponent in the presidential election, Mitt Romney.

Romney introduced similar health insurance reforms as governor of Massachusetts six years ago including a requirement for state residents to buy insurance. At the time, he said he thought the law would make good national legislation.

The legal path to the supreme court

A barrage of legal challenges to the legislation began almost as soon as it was passed. They have produced conflicting court rulings even within the same state.

Virginia's attorney general won the first ruling in a federal court against the new law in December 2010 when a district judge declared a part of the legislation unconstitutional because it exceeded the powers of the government by punishing individuals with financial penalties for not buying health insurance. The ruling did not discuss the rest of the law.

That decision was overturned a month later when an appeals court ruled that Virginia did not have the authority to challenge the reforms.

But another Virginia court reached a different decision when it declared the law constitutional. Judge Norman Moon rejected the argument that Congress does not have the authority to force people to buy health insurance against their will.

An appeals court in Washington DC also held that the healthcare law is constitutional on the grounds that the federal government has the right to regulate "national solutions to national problems". Another Washington court rejected a challenge made on religious grounds.

In Michigan, an appeals court last year upheld a lower court ruling that said the entire healthcare law is constitutional.

But the ruling being taken up by the supreme court was handed down in a federal district court in Florida.

In January 2011, Judge Roger Vinson ruled in a legal action by 26 states that the individual mandate is unlawful and therefore the entire health care reform law is unconstitutional. That went further than decisions in other courts which only struck down part of the law but let the rest stand.

Eight months later, an appeals court upheld Vinson's ruling on the individual mandate but ruled that it could be separated from the rest of the health care law which should be permitted to remain on the books.

The justice department then asked the supreme court to hear the case.

Tax vs fine

The supreme court will hear the case over three days.

The first will consider whether the supreme court should even be considering the case now. That issue hinges on whether the punishment for failing to buy health insurance is a fine or a tax.

Under the new law, anyone not exempt from having health insurance will be charged additional income tax for each month they are without coverage. But some opponents of the legislation say that what is dressed up as tax is really a fine.

If the supreme court agrees, it may decide it cannot rule on other aspects of the law because legal challenges to fines cannot be brought until the penalty has been imposed on someone, and that has yet to happen.

The commerce clause

The core of the case will be heard on day two.

Arguments already submitted in briefs to America's highest court centre on interpretation of a clause in the constitution that gives Congress the authority to regulate commerce between US states. The precedent was set 70 years ago when the supreme court ruled in the case of an Ohio farmer who challenged the government's right to control how much wheat he could grow for his own use.

In the 1930s, the government limited wheat production in order to force up prices during the Great Depression. The farmer, Roscoe Filburn, was growing more than permitted, but said that it was to feed his own animals and therefore was not commercial.

Filburn won in a lower court, but the supreme court unanimously ruled against him, on the grounds he was using his wheat to feed livestock that produced eggs and milk sold as a commercial transaction, and that if he had not grown his own crop he would have had to buy grain on the open market.

In other words, his wheat crop was inextricably bound up with the agricultural trade between states even if he was only growing it for his own use.

The government is pressing a similar argument in its defence of the legal requirement for almost all Americans to buy health insurance. It says that millions of people have been prevented from taking out insurance in part because it was unaffordable – particularly for those with poor health.

The healthcare law seeks to make insurance accessible by requiring almost everyone to take out policies so as to spread the cost of treatment.

The government argues that if an individual is without insurance, that does not mean they do not have any impact on healthcare because almost everyone uses hospitals at some time. A refusal to buy insurance simply means others pick up most of the bill – and that is a national issue which Congress has the right to regulate just as it could limit Filburn's wheat crop.

"In 2009, more than 55% of Americans under age 65 who were uninsured for more than 12 months had at least one visit to a doctor or an emergency room; about 80% of those who were uninsured for less than 12 months did so," a government brief to the court said. "The average bill for a single hospital stay for an uninsured person was $22,200, and nearly 60% of those hospitalizations generated bills greater than $10,000. Individuals without insurance can rarely cover charges of this magnitude."

The government said that uninsured people used $116bn of health care services in 2008 but left unpaid 63% of the costs.

"Those costs are shifted to other market participants, raising the average family's annual health insurance premiums by more than $1000," the government brief said.

Activity v inactivity

Opponents of the law say there is a fundamental difference between Filburn growing wheat and a modern-day American refusing to buy health insurance. Filburn was being prevented from doing something he wished to do, whereas the health care law forces people to buy insurance against their will. Opponents say that the law is in essence "regulation of inactivity".

"Congress is claiming a power they've never claimed before, which is the power to compel purchases," said Barnett. "The ability to compel purchases is a very awesome and great and attractive power. The rationale for why they should have that power would essentially give them an unlimited power. What we're being told is that because the decision not to buy something is an economic decision and that economic decision effects either interstate commerce or the ability of Congress to regulate it, therefore Congress can make people buy things. Well, that rationale is without limits."

Barnett said that the claim that healthcare is a unique product that eventually everyone makes use of is "irrelevant constitutionally". He said that had Congress set up a single-payer system through the government similar to the British National Health Service he would not have seen a constitutional issue. But forcing people to give money to a private company is a different matter.

A brief to the supreme court by Barnett and others lawyers representing business interests that are party to the case also argues that Congress is forcing healthy people to act against their own interests by buying insurance that is used to subsidise the unhealthy.

"The mandate's primary purpose and effect is not to regulate uninsured individuals engaging in harmful economic activity, but to compel the uninsured into engaging in economic activity that is harmful for them but beneficial to third parties. Never before has Congress enacted such a regulatory mandate," it said. "The mandate imposes an extraordinary and unprecedented duty on Americans to enter into costly private contracts. By commanding citizens to subsidize voluntary participants in the insurance industry through disadvantageous contracts, it exemplifies the threat to individual liberty that occurs when Congress exceeds its limited and enumerated powers."

The Missouri attorney general, Chris Koster, argues in a supreme court brief that if the law stands the government will be able to force Americans to go on a diet.

"If Congress can force activity under the Commerce Clause, then it could force individuals to receive vaccinations or annual check-ups, undergo mammogram or prostate exams, or maintain a specific body mass," he said.

Whether to scrap the whole law or part of it

The third day of hearings will be mostly taken up with arguments over what should happen if the court decides that the healthcare law breaches the commerce clause of the constitution. The justices may then have to decide whether that means the entire reform law should be scrapped.

The government and its opponents agree that the individual mandate is a key component without which the law cannot work. So the court has hired a lawyer to make the alternative argument that the rest of the legislation can remain in place even if the requirement for compulsory insurance is struck down.

Barnett says he does not believe that argument can prevail.

"The government itself concedes that the individual mandate cannot be disconnected from the regulations that are being imposed on the insurance companies," he said. "You pull the heart out of a body and the body dies. The bill is remarkably interconnected and I don't think the act could survive as Congress intended it to if you take those parts of it away."

The lawyers

The legal battle on the court floor will be led by senior law officers of this and previous administrations.

The government will be represented by the US solicitor general, Donald Verrilli, who has a long history with the supreme court, having served as a law clerk to the late justice William Brennan. Later, he argued a dozen cases before America's highest court. Before his appointment as solicitor general, Verrilli worked as associate deputy attorney general at the justice department dealing with security policy and then deputy White House counsel. His briefs in that post included healthcare, financial regulation and the BP oil spill in the Gulf of Mexico.

Verrilli will be facing down Paul Clement, solicitor general under George W Bush, who will be arguing for the 26 states challenging the healthcare law.

Clement, who has been touted as a potential supreme court nominee in a future Republican administration, was a classmate of Obama's at Harvard law school. He served as a clerk to justice Antonin Scalia, who is still sitting on the bench.

Clement has argued several prominent cases dear to conservative activists before the supreme court, including a defence of Arizona's controversial immigration laws. He quit a private law firm last year after it dropped its defence of a law forbidding the federal government from recognising same sex marriages.

Private business interests that are part of the action against the healthcare reforms will be represented by Michael Carvin, who argued for George Bush at the Florida supreme court in his battle against Al Gore over whether there should be a recount of votes cast in the state in the 2000 presidential election. Carvin worked in several justice department posts in the Reagan administration.

The supreme court has appointed its own lawyers, Robert Long and Bartlow Farr, to offer alternative opinions to the shared views of the government and its opponents that the case should be heard immediately, rather than when someone is penalised for not taking out health insurance, and that if the individual mandate is ruled illegal, the whole of the health care law will collapse.

The justices

Conventional legal opinion is that it will not come to that.

There are nine supreme court justices, although some conservatives would like to see it down to eight. They argue that Elena Kagan should recuse herself because she was Obama's solicitor general when the administration began planning its legal defence of the healthcare law. That looks unlikely to happen.

Court watchers expect Kagan and three other generally more liberal judges – Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor – to uphold the law. The conservative Clarence Thomas is assumed to be likely to vote against it. Of the swing votes, Anthony Kennedy is thought the most likely to side with the administration. All eyes will be on the chief justice, John Roberts, in particular.

"Justice Thomas will almost certainly vote to strike it down, because he's voted to strike down a lot of laws as being beyond the scope of Congress's power," said Dorf. "That leaves four others of whom the betting would be Kennedy is the most likely to join the liberals but I could see any or even all of Roberts, [Antonin] Scalia and [Samuel] Alito joining the liberals. It just depends on how they perceive this case."

Although much is made in the US of the separation of powers, the appointment of supreme court justices is highly politicised and reflected in some of their judgments, from the Bush v Gore ruling that decided the 2000 election to the highly controversial decision that unleashed virtually unlimited amounts of money in to political advertising ahead of this year's presidential election.

Dorf says the justices will not be unaware of the political sensitivities, particularly with a major rally led by members of Congress planned outside the court on Tuesday.

"Historically, there's always been criticism of that the court is politically biased," said Dorf. "Usually it's by people who disagree with the outcomes and that's depending on the political whims, that can be almost anybody. That could cut either way. It could lead to the justices wanting to trim their sails, it could lead to particular justices wanting to dig in their heels."

The public is not confident.

A Bloomberg poll this month found that 75% of voters believe that politics will influence the supreme court ruling. Just 17% thought the case would be decided on the legal merits.


Obama Health Care & Supreme Court [Social Policy]

前に書いたとおり,アメリカ民主党の支持(共和党やTea Party は上下両院で全員反対)で成立したObama 大統領の Patient Protection and Affordable Care Act は違憲訴訟が26州や保険会社その他から提起されており,連邦最高裁が3月26~28日に合計6時間,(1時間半+2時間+2時間半)のヒアリングを双方から行うことが決定されています.(ヒアリングに関する決定内容は第2文集のアメリカ最高裁の記事を参照下さい)

焦点は,Death, taxes and now health insurance? と下記の第1文集が書き出しているように,連邦政府の権限として,これまでの死刑制度,租税制度に加えて,Health Insurance を加えることになるか否かにあります.
アメリカ最高裁判所は,1972年にいったん死刑制度を残虐行為に当たるとして違憲としましたが,絞首刑以外の選択肢が広がって,1976年に合憲判決を下しています.ただ,連邦政府による死刑執行はごく限られた件数しかありません.

Obama Care は,アメリカ人に民間のHealth Insurance を個人でないし雇用を通して買うか,さもなければ連邦政府に罰金を払うかと迫っているのです.
これはアメリカ人個人の基本的人権=自由権の侵害だというのが大きな争点です.
買うか買わないかが自由では,社会保険制度は成立困難なのです.それは日本の国民年金や国民健康保険の収納率の低さを巡る議論を想起していただければ,お分かりいただけると思います.

今年はアメリカ大統領選挙の年ですが,共和党の候補は,皆揃って,Obama Care は廃止すると公約しています.2年前に下院で共和党が多数を占めましたから,その後,廃止法案が下院では成立したのですが,上院では辛うじて民主党が多数を占めましたから,廃止法案は成立しなかったのです.もし成立したとしても,アメリカ大統領には拒否権がありますから,それでObama Care は今年の選挙結果を見るまでは立法と行政面では安泰です.

民主党政権は,このHealth Insurance が,アメリカ政府にとって最高の財政削減になるとPRしています.これがなければ,既存のMedicare,Medicaid が今後どんどん膨張すると予測されるからです.

しかし,Obama Care を巡る世論調査では,8/10ないし設問の仕方によっては6/10が反対していますから,今年6月に予定される連邦最高裁の判断が注目されます.

3月26~28日のヒアリングは法律論ですからそこで占うことは困難です.そもそも連邦最高裁判所は,ヒアリングの議論にかかわらず,独自の憲法判断をする訳ですから,予測することは無理です.

また,成立した法律の完全施行は2017年ですから,Obamaが再選されたとしても,完全施行を見届けることは出来ないのです.

ただ,法律の内容に,26歳までの若者は,親のHealth Insurance に止まれるとなっていますから,既に,数百万の若者が新たにカバーされたといわれます.
また,既往症や既に病気を持った人も保険会社は断れないことになっていますから,この面でも,既に相当数の人が保険に加入しているといわれます.それは日本に進出しているアメリカの保険会社のPR からも推察できることです.

あとは,今年3月の記事(第1文章)と連邦最高裁が公示した文章(第2文章)を,お好きなように,飛ばし読み,ご渉猟下さい.

 

 

Supreme Court To Weigh Obama Health Care Overhaul

By CONNIE CASS 03/17/12 09:21 PM ET AP

Georgia Drug Testing
Federal judges have come down on both sides of the health care question, leaving it to the Supreme Court to sort out.

 

WASHINGTON — Death, taxes and now health insurance? Having a medical plan or else paying a fine is about to become another certainty of American life, unless the Supreme Court says no.

People are split over the wisdom of President Barack Obama's health care overhaul, but they are nearly united against its requirement that everybody have insurance. The mandate is intensely unpopular even though more than 8 in 10 people in the United States already are covered by workplace plans or government programs such as Medicare. When the insurance obligation kicks in, not even two years from now, most people won't need to worry or buy anything new.

Nonetheless, Americans don't like being told how to spend their money, not even if it would help solve the problem of the nation's more than 50 million uninsured.

Can the government really tell us what to buy?

Federal judges have come down on both sides of the question, leaving it to the Supreme Court to sort out. The justices are allotting an unusually long period, six hours over three days, beginning March 26, to hear arguments challenging the law's constitutionality.

Their ruling, expected in June, is shaping up as a historic moment in the century-long quest by reformers to provide affordable health care for all.

Many critics and supporters alike see the insurance requirement as the linchpin of Obama's health care law: Take away the mandate and the wheels fall off.

Politically it was a wobbly construction from the start. It seems half of Washington has flip-flopped over mandating insurance.

One critic dismissed the idea this way: "If things were that easy, I could mandate everybody to buy a house and that would solve the problem of homelessness." That was Obama as a presidential candidate, who was against health insurance mandates before he was for them.

Once elected, Obama decided a mandate could work as part of a plan that helps keep premiums down and assists those who can't afford them.

To hear Republicans rail against this attack on personal freedom, you'd never know the idea came from them.

Its model was a Massachusetts law signed in 2006 by Mitt Romney, now the front-runner of the Republican presidential race, when he was governor. Another GOP hopeful, former House Speaker Newt Gingrich, supported a mandate on individuals as an alternative to President Bill Clinton's health care proposal, which put the burden on employers.

All four GOP presidential candidates now promise to repeal the Affordable Care Act, which they call "Obamacare." Former Pennsylvania Sen. Rick Santorum calls it "the death knell for freedom."

So much for compromise.

Obama and congressional Democrats pushed the mandate through in 2010, without Republican support, in hopes of creating a fair system that ensures everyone, rich or poor, young or old, can get the health care they need. Other economically advanced countries have done it.

Doing nothing is more expensive than most people realize.

Congress found that when the uninsured go to clinics and emergency rooms, the care they can't pay for costs nearly $75 billion a year. Much of that cost is passed along and ends up adding $1,000 a year to the average family's insurance premium.

The overhaul is neither the liberal dream of a single government program supported by taxes and covering everyone nor the conservative vision of stripping away federal rules and putting free enterprise in charge.

The Obama plan relies on private companies plus lots of regulation to make sure they provide basic benefits, keep premiums reasonable, and cover the sick as well as the healthy. That's where the mandate comes in. If insurers must cover everyone, even those with existing medical conditions, healthy people have little incentive to sign up before they get sick.

Insurance companies argue that if only the sick sign up, insurers will go broke. So the law says everybody must have insurance for themselves and their children, or pay a penalty.

Also, because everyone needs health care sometime, if everyone purchases insurance, the price per person can be lower, with the cost of care spread out over many people.

After all, the government requires workers to pay Social Security and Medicare taxes, whether they want the benefits or not.

One argument for the insurance mandate is that the fines are just federal taxes by another name. Another is that it falls under the government's constitutional power to regulate commerce that crosses state borders.

State governments, of course, tell people to buy lots of things, including auto insurance or motorcycle helmets.

"You can always move to another state," said Tom O'Connor, a consultant in Fairfax, Va., who thinks the health care law overreaches. "It's a little more difficult to move to another country."

Many agree.

In an Associated Press-GfK poll, 85 percent said the U.S. government should not have the power to require people to buy health insurance. When the question is worded without the specific reference to federal power, acceptance of the mandate grows a bit, but 6 in 10 are still against it.

Even among those who generally support the health care overhaul, one-third said they are against the insurance mandate.

There's also a significant minority who sees mandates as a cop-out and prefer a government program that covers everyone, Medicare for all.

It's clear that many people do not understand what the law would do or how it would affect them.

Jan Gonzales, an out-of-work bookkeeper in Pablo, Mont., calls fining people for going without insurance "the most ridiculous, asinine thing you ever heard of."

"If I can't put food on the table for my children, how can I pay for health care coverage?" asks Gonzales, who's been without insurance for seven years. "What moron came up with that idea?"

Of course, she might qualify for the law's exemptions for those too poor to pay and for assistance for low-income people, as well as many in the middle class.

There also are some religious exemptions. .

Estimates vary widely of how many uninsured people will get insurance once it's required in January 2014.

About 4 million people would pay a penalty to the Internal Revenue Service for being uninsured in 2016, the Congressional Budget Office estimates.

By 2016, the fine reaches $695 per uninsured adult or 2.5 percent of family income, up to $12,500 per year. The IRS is in charge of the penalties but can't prosecute violators or place liens against them. Its only enforcement option may be withholding money from refunds.

That leaves insurance companies, who stand to gain lots of new customers, worried that people instead will shrug off the weak mandate.

Meanwhile, the state-federal Medicaid program will expand to cover more low-income people, and that's another issue before the Supreme Court, because many states say they cannot afford the extra cost.

 

Patient Protection and Affordable Care Act Cases

Listed below are live links to the orders, case filings, and other information pertaining to the Patient Protection and Affordable Care Act cases. Click on each item to access further information.

Orders
 
11-14-11Grant Order
11-18-11Amici Appointment Order
12-08-11Briefing Schedule
02-21-12Allocation of Oral Argument Time
  
  
Case Filings
 
11-117Thomas More Law Center, et al., v. Barack H. Obama, President of the United States, et al.
Petition for Writ of Certiorari
Brief in Opposition
Reply Brief
 
11-393National Federation of Independent Business, et al., , v. Kathleen Sebelius, Secretary of Health and Human Services, et al.,
Petition for Writ of Certiorari
Appendix to Petition
Brief in Opposition
The American Bar Association has provided a link to the briefs at the merits stage of this case at this link.*
 
11-398Department of Health and Human Services, et al., v. Florida, et al.
Petition for a Writ of Certiorari
Appendix to Petition
Brief of Private Respondents
Brief of State Respondents
Reply Brief
The American Bar Association has provided a link to the briefs at the merits stage of this case at this link* for the anti-injunction act and this link* for the minimum coverage provision.
 
11-400Florida, et al., v. Department of Health and Human Services, et al.
Petition for Writ of Certiorari
Brief in Opposition
Reply Brief
The American Bar Association has provided a link to the briefs at the merits stage of this case at this link.*
 
11-420Virginia, ex rel. Kenneth T. Cuccinelli, II, Attorney General of Virginia v. Kathleen Sebelius, Secretary of Health and Human Services
Petition for Writ of Certiorari
Brief in Opposition
 
11-438Liberty University, et al., v. Timothy F. Geithner , Secretary of the Treasury, et al.,
Petition for a Writ of Certiorari
Brief in Opposition
Reply Brief
 

*Disclaimer: We have provided a link to this site because it has information that may be of interest to our users. The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.