Fordham Law


WSJ's Moore rehashes right-wing attacks on health care reform

Dean William Michael Treanor in Media Matters, January 13, 2010

Media Source

SUMMARY: On the January 12 edition of On the Record, Wall Street Journal senior economics writer Stephen Moore rehashed old falsehoods about health care reform, by claiming that "a major provision" of the bill, the individual mandate, "looks to be unconstitutional" and that "[p]eople aren't going to get any benefits from this bill for three or four years." In fact, numerous legal experts have disputed the claim that the individual mandate is unconstitutional, and the health care reform bill provides many benefits "in the first year of enactment."
 
Moore falsely suggested health reform is unconstitutional and that there are no benefits for years
 
Moore: "a major provision" of health care reform "looks to be unconstitutional."  Moore discussed the individual mandate to purchase insurance, which is in both the House and Senate's health care reform legislation, and said he found it "highly objectionable that a lot of these members of the House and Senate are about to vote yes on a bill, where you have a major provision that looks to be unconstitutional."  Moore went on to state: "[P]oint to me in the Constitution--point to me that section of the Constitution where it says the United States government has the authority to force people to buy insurance? It is not in there."
 
Moore claims the bill provides no benefits for "three to four years."  While discussing the individual mandate, host Greta van Susteren said "supposedly we don't get the service for about four years" which would allow "the Supreme Court to get a decision on" the constitutionality of the individual mandate. Moore replied: "People aren't getting benefits -- that's a great point.  People aren't going to get any benefits from this bill for three or four years, but the costs start right away."
 
In fact, many experts have concluded that the individual mandate is constitutional
 
Claim about individual mandate forwards a conservative myth. Numerous conservative media figures including Fox News' senior judicial analyst Andrew Napolitano, Fox News hosts Bill O'Reilly, Glenn Beck, and Mike Huckabee, and serial health care misinformer Betsy McCaughey have claimed that the individual mandate found in the health care legislation is unconstitutional.
 
Numerous experts have concluded that individual mandate is, in fact, constitutional. In fact, legal scholars -- including George Washington University law professor Orin Kerr, who recently served as a special counsel to Sen. John Cornyn (R-TX) during Supreme Court Justice Sonia Sotomayor's confirmation proceedings -- have pointed out the flaws in conservatives' arguments, including that regulation of the health care sector falls under Congress' broad power to regulate interstate commerce and that Congress has repeatedly passed laws regulating health care and health insurance. In a December 2009 paper for the American Constitution Society, National Senior Citizen Law Center public policy counsel Simon Lazarus added that arguments that the individual mandate is unconstitutional "have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law." Additionally, University of California, Irvine law professor and constitutional expert Erwin Chemerinsky explained in an October 23 Politico piece that, regarding the "authority to compel people to purchase health insurance or pay a tax or a fine," "Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states." Also, according to Slate.com's Timothy Noah, Yale law professor Akhil Reed Amar and Fordham Law School dean William Treanor debunked conservatives' argument that the individual mandate could be considered a "taking" in violation of the Fifth Amendment

The health care bill provides many benefits in the first year of implementation
 
Senate Democrats note "[i]mmediate Benefits" of health care bill. According to a document put forth by Senate Democrats summarizing the "Immediate Benefits" of The Patient Protection and Affordable Care Act, the bill includes numerous benefits that would "be available in the first year after enactment." Indeed, WashingtonPost.com blogger Ezra Klein published the following list of benefits that the Senate bill would provide "before 2014":
 
    1) Eliminating lifetime limits, and cap annual limits, on health-care benefits. In other words, if you get an aggressive cancer and your treatment costs an extraordinary amount, your insurer can't suddenly remind you that subparagraph 15 limited your yearly expenses to $30,000, and they're not responsible for anything above that.
 
    2) No more rescissions.
 
    3) Some interim help for people who have preexisting conditions, though the bill does not instantly ban discrimination on preexisting conditions.
 
    4) Requiring insurers to cover preventive care and immunizations.
 
    5) Allowing young adults to stay on their parent's insurance plan until age 26.
 
    6) Developing uniform coverage documents so people can compare different insurance policies in an apples-to-apples fashion.
 
    7) Forcing insurers to spend 80 percent of all premium dollars on medical care (75 percent in the individual market), thus capping the money that can go toward administration, profits, etc.
 
    8) Creating an appeals process and consumer advocate for insurance customers.
 
    9) Developing a temporary re-insurance program to help early retirees (folks over 55) afford coverage.
 
    10) Creating an internet portal to help people shop for and compare coverage.
 
    11) Miscellaneous administrative simplification stuff.
 
    12) Banning discrimination based on salary (i.e., where a company that's not self-insured makes only some full-time workers eligible for coverage.
 
— J.V.B.