Act 1

"… the only way affordable access can be achieved is for every citizen to have some type of health insurance."

Barack Obama? Nancy Pelosi? No, that would be too easy. The above sentiments were voiced by the former Republican leader of the Senate, Dr. Bill Frist, in September 2009.

And that is the problem. Democrat and Republican leaders know that mandating insurance, whether it is from an employer or individually purchased, is a core requirement to meaningful reform. If you accept that the system we had on March 22, 2010 was unsustainable, then getting everyone to participate is an integral part of any solution.

Is the individual mandate of the Patient Protection and Affordable Care Act (PPACA) constitutional? It depends on who you ask.

On Friday, Aug. 12, a three-judge panel with the 11th Circuit Court of Appeals ruled against the President and the mandate. It was a split decision. Two of the judges, Joel Dubina, a Bush appointee, and Frank Hull, who was brought to the bench by President Clinton, issued a 207-page ruling that clearly stated their opposition. "This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives."

Judge Stanley Marcus, also a Clinton appointee, noted that his peers had ignored "the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries."

The White House was quick to point out that insurance rates will skyrocket if all of their changes (free stuff) are implemented without the individual mandate. In other words, if insurance is guaranteed issue and preexisting conditions don’t matter, healthy people won’t bother to buy coverage. This would create a pricing death spiral.

This recent decision is just another step toward the inevitable Supreme Court showdown. In an evenly divided court, Justice Anthony Kennedy becomes the swing vote. What will he decide? Darned if I know. My guess is that he will note that the individual states have the power to impose this mandate, but that the federal government does not. But that is just a guess.

And, if you have been reading this blog for awhile, you know that this ruling has no impact on my prediction of our final destination.

The federal government, the states, the insurers, and businesses have spent millions of dollars to comply with the PPACA. The Republicans may have won the House last November, but as predicted, they have not taken even the smallest of steps to modify this legislation. Their Bill – H.R. 2 Repealing the Job-Killing Health Care Law Act – was neither serious nor constructive. This train has left the station.

If the mandate is struck down, but all of the benefits are retained, rates will continue to climb and the federal government will be forced to offer a competing Public Option. The Public Option will be designed like Medicare Part B, an optional benefit that covers doctors, testing, etc … that almost 90 percent of all Medicare beneficiaries accept. There is a heavy fee for failing to purchase Medicare Part B when it is initially offered. Seniors aren’t forced (mandated) to take Medicare Part B. They are just screwed if they don’t. That’s constitutional!

The insurers will dump the individual and small group market on the government and concentrate on the far more profitable supplemental products. So here we are in August 2011, 17 months into the PPACA. All of the players are following the script. I suggest you get another popcorn. This show has just begun.

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