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Craig B. Garner, Founder, Garner Health Law Corporation

How to Spell Health Care Without R-E-F-O-R-M



By Craig B. Garner
Founder
Garner Health Law Corporation



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Original Publish Date: January 8, 2019

“God gives the nuts, but he does not crack them.” -- Franz Kafka

The Federal Bench

There are more than 850 justices and judges (excluding magistrates and administrative law judges) in the United States federal court system, spread out over 94 judicial districts, 13 appellate courts and one Supreme Court. In 2017, there were 274,547 cases filed in the District Court, 295,956 cases terminated, while another 338,013 cases remained. For the same time period in the U.S. Court of Appeals, 49,816 cases commenced, 53,756 terminated, yet still 38,876 remained.

Any dispute involving (1) the United States government, (2) the U.S. Constitution or a federal law, or (3) a controversy between states or between the U.S. government and any foreign government, falls under the jurisdiction of the federal court system. Additionally, 30,000 more judges oversee another 90 million state court lawsuits filed each year in America’s 50 states and 3 districts (District of Columbia, Guam and Puerto Rico).

Federal and state courts share the burden in resolving domestic health care disputes, although the federal system bears the heavier load when it comes to Medicare and the 2010 Patient Protection and Affordable Care Act (ACA), also known as “Obamacare.” Still, it is neither plausible nor prudent for less than 0.12 percent of the federal judiciary to effectively “veto” a system so important as health care. In 2017, approximately 294.6 million Americans had health insurance coverage to rest in one of the 894,575 beds in any of the 5,534 United States hospitals, or see one of 953,000 actively licensed allopathic and osteopathic physicians, still leaving room for the other 31 million people in the United States without health insurance. While the ACA qualifies as landmark legislation, historical hindsight may someday place health care reform’s success in its first decade on par with President Lincoln’s Emancipation Proclamation.

One Federal Judge

On December 14, 2018, the Hon. Reed O'Connor issued a Memorandum Opinion and Order in Texas v. United States wherein Judge O'Connor declared the Individual Mandate “unconstitutional” on its own, “inseverable” from the rest of the ACA, and as a result the ACA itself “invalid.” The impact of Judge O’Conner’s decision remains to be seen as historical hindsight is always full of surprises. One hundred fifty three years later, historians still debate the impact from December 24, 1865, when six former officers of the Confederate army in Pulaski, Tennessee founded a new movement, named from the Greek word for “circle” (kuklos). In America today, the Ku Klux Klan exists as a fragmented group of chapters rather than a unified national movement. The mission of this elusive group remains as fleeting as the last Imperial Wizard’s tenure (he was shot and killed following a marital dispute in 2017).

For now at least, the ACA may no longer exist in the Northern District of Texas, Fort Worth Division, and possibly also the Abilene, Amarillo, Dallas, Lubbock, San Angelo and Wichita Falls Divisions. For the Fifth Circuit Court of Appeals, Judge O’Connor’s decision fits somewhere between the alley-oop and an Eephus pitch, and Chief Justice Roberts’ Supreme Court has months before it must decide if this is a sandbox in which it wants to play.

The U.S. Supreme Court

For the rest of the nation, Judge O’Connor’s 55-page, carefully crafted decision means nothing. Judge O’Connor resumed the ACA debate where it ended after National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012) (NFIB), at which time the Supreme Court rejected the Commerce and Necessary and Proper Clauses in the Constitution as justification to uphold the Individual Mandate. The Court held that the Commerce Clause failed to provide a sufficient nexus between the requirement to purchase health insurance and its anticipated effect on interstate commerce to validate the mandate: Chief Justice Roberts noted that the Commerce Clause did not give Congress the authority to compel an individual “to become active in commerce by purchasing a product, on the ground that … failure to do so affects interstate Commerce.” Likewise, the Court rejected the Necessary and Proper Clause as a means to sustain the Individual Mandate, finding it was not “an essential component of the insurance reforms.” Instead, the Court upheld the constitutionality of the Individual Mandate through Congress’s authority to “lay and collect Taxes.” In so doing, the Court acknowledged that Congress’s taxing authority exceeded its power to regulate commerce, but at the same time Congress could only require “an individual to pay money into the Federal Treasury, no more.”

Judge O’Connor relied upon Congress’s Tax Cuts and Jobs Act of 2017 (TCJA) to declare the Individual Mandate unconstitutional, and upon doing so, Judge O’Connor held the ACA cannot survive following removal of the mandate. While the Supreme Court did rely upon Congress’s taxing authority in NFIB, at the same time the Supreme Court did not completely close the door on the propriety of the Commerce Clause. Chief Justice Roberts made clear that the role of the Judiciary is to construe a statute with the objective to save it, “if fairly possible.” Just as important was the dissenting opinion in NFIB, especially to the extent it opined on the role of the judiciary in making important decisions affecting federal law:

“When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which. To sever the statute in that manner would be to make a new law, not to enforce an old one. This is not part of our duty.”

Judge O’Conner referred to these salient parts from the NFIB decision, yet his interpretation of the Supreme Court’s directive may differ from others. As a federal judge, such a right exists with lifetime tenure. Judge O’Conner actually has no obligation to proffer a reason for his decision, even if the citizens of the Northern District of Texas, Fort Worth Division (and possibly others) may lose access to health care nearby, forcing them to venture to the Western, Eastern and/or Southern Districts of Texas, or possibly even bordering states, in times of sickness or injury.

Medicare and the Affordable Care Act

Almost nine years after its passage, the nation has forgotten that health care reform is not health care. A transitive verb, “reform” means to put or change into an improved form or condition, or to amend or improve by change of form or removal of faults or abuses. The “Christmas Tree” to which the dissenting justices referred in NFIB includes provisions “that are entirely unrelated – hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support.” The ACA affected 518 different federal statutes, spanned over 900 pages in its original, 2010 form, and may not have been carefully reviewed in its entirety by most of Congress. The tens of thousands of pages of regulations promulgated since 2010 crafted to give life to the 900-page outline also may have escaped the watchful eye of Congress this past decade.

The same can be said of the 138 pages of codified law passed in 1965 commonly known as Medicare and Medicaid. Fifty-three years later, that which we know as just Medicare includes thousands of pages of statutes, regulations, and the Internet-only Manuals, not to mention the hundreds of federal court decisions by the three main judicial divisions referenced above as well as administrative law judges and agency tribunals. Referred to as “downright byzantine” (Catholic Health Initiatives Iowa Corporation v. Sebelius, 718 F.3d 914, 916 (D.C. Cir. 2013), reversing 841 F. Supp. 2d 270, 271 (D.D.C. 2012) (comparing the Medicare Act to Finnegan’s Wake by James Joyce)) and “among the most completely impenetrable texts within human experience” Rehabilitation Association of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994), Medicare is not an easy read.

What Happens Now?

If the Fifth Circuit or U.S. Supreme Court ultimately reverses Judge O’Conner on appeal, he will join the impressionable ranks of the Hon. Roger Vinson (Florida v. U.S. Dept. of Health and Human Services, 780 F. Supp. 2d 1256 (N.D. Fla. 2011), reversed in part by NFIB) and the Hon. Henry E. Hudson (Virginia v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010), vacated by 656 F.3d 253 (4th Cir. 2011)), among others. No matter what fate befalls Texas v. United States or the ACA, there will still be hospitals and doctors in the United States, Medicare most likely will exist, and few will actually understand how to read an explanation of benefits from a provider of health insurance. Regarding the scope of possibilities for health care in the United States, albeit misunderstood by those responsible for governing, needing and delivering it, perhaps the nation needs an advanced, functional system that nobody understands, rather than a dreadful one that society knows all too well.

Craig Garner is the founder of Garner Health Law Corporation, as well as a healthcare consultant specializing in issues pertaining to modern American healthcare. Craig is also an adjunct professor of law at Pepperdine University School of Law. He can be reached at craig@garnerhealth.com.