Tuesday, October 26, 2010

The Attorney Generals, Affordable Care Act, Private Economic Activity Versus Interstate Commerce, Lawyering and the Release of the Furies

Along with a small roomful of other docs, the Disease Management Care Blog recently met a sitting State Attorney General (AG) who is running for Governor. He was feeling pretty confident about being ahead in the polls and having a 70% chance of winning. He also happens to be one of the 13 AGs that filed that early suit against the Affordable Care Act (ACA's) mandate. We brought it up and the "General" (that's what we called him) was bluntly unapologetic: "I read it and it was unconstitutional."

According to this article in JAMA, the AGs serve as their States' legal officers with broad powers ultimately aimed at protecting the public interest in areas such as consumer protections, the environment, and the functioning of various State agencies as well as representing the State when lawsuits arise. When they speak, their opponents better listen. Examples of that include the tobacco wars, going after big pharma and defanging managed care.

Anxious to learn more, the DMCB used that handy link to the right to return to the ACA and looked up the mandated "individual responsibility" language starting on page 124. Curiously, a whole page is devoted explaining its legal underpinnings. It describes health insurance as a commercial activity that involves 17.6% of the economy. Much of that 17.6% crosses State borders. It will benefit from "near universal coverage by building upon and strengthening the private employer based health insurance system." Without a "requirement," individuals "would wait to purchase health insurance until they needed care." Accordingly, by broadening the risk pool and capitalizing on "economies of scale," the price of health insurance will become "lower." Using that as a justification, what follows in the ACA is a detailed description of how a "penalty" will be assessed by any U.S. citizen that fails to meet that "requirement."

As the DMCB understands it, the AGs oppose the use of penalties that promote "private" (a word in the ACA) economic activity, even if it is interstate and even if it in the public interest. Ironically, they're arguing that the ACA should have imposed a tax.

The DMCB has no illusions about the Republican undercurrents and the AGs' political self interests versus the non-material distinctions between "penalty" vs. "tax" and the necessary adaptation of Federal law in pursuit of the greater good. While they are all issues that make for great bloggery, that wasn't what impressed the DMCB about its very confident AG interacting with a roomful of docs.

What impressed the DMCB was how the issue had been legally processed by the "General." He read the law, benchmarked it against how he was trained to think and came up with a judgment. Writers write, doctors care and lawyers, well, "law." Principled individuals in these and other professions, including lawyers, can't help it. This sort of backbone is an under recognized ingredient in the battle over the ACA. It's also another reason to believe that the AG suit may prevail.

Who would have thought the DMCB would have a nice thing to say about lawyers. Such is its process of self discovery and professional development.

Which brings the DMCB to the punchline: we can't have one without the other. Our nation's AGs have 1) interpreted the law and 2) have used their considerable powers to skewer tobacco, pharma, managed care (and, by the way, fraudulent food labeling, the obesity epidemic, firearm safety, domestic violence and Medicaid fraud). The DMCB knows admiring what the AG's have done in the past also means having to approve of how they've done it. Like it or not, these principled Furies were enabled and released by all of us years ago.

And now they're coming home.

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