On May 11, 2011, GOP legislative leadership filed an Amicus brief challenging the constitutionality – especially the individual mandate – of the Patient Protection and Affordable Care Act (Obamacare.) Senate President Pro Tem Berger (R-Rockingham), Senate Majority Leader Harry Brown (R-Onslow), House Speaker Thom Tillis (R-Mecklenberg), and House Majority Leader Skip Stam (R-Wake) all signed the “friend of the court” brief.
Earlier in the session, the legislature passed HB 2 the Protect Healthcare Freedom Act, which would have allowed North Carolina to join 26 other states in a lawsuit challenging the constitutionality of the federal law. However, Governor Perdue vetoed the bill and the legislature was unsuccessful in overriding the veto. Instead, North Carolina has joined Minnesota in filing an Amicus brief to the lawsuit currently in the U.S. Court of Appeals for the Eleventh Circuit.
An Amicus brief is filed by an individual or an entity that is not a party to the litigation but has an interest in its outcome, usually siding with one of the parties to the case. These briefs can be important because they provide unique perspectives and legal arguments that may be different from the involved parties’ views.
The legislature’s brief argues Obamacare is unconstitutional because its “individual mandate is not a valid regulation of economic activity” and that it dramatically expands Medicaid which forces the states to eventually absorb these costs. GOP leadership has argued that the federal government is encroaching on states rights and individual liberties by forcing individuals to purchase health insurance and forcing states to absorb additional healthcare costs.
With the recent filing of the Amicus brief, it is somewhat puzzling that the same GOP-led legislature is also quickly pushing through an unnecessary health insurance exchange bill in response to Obamacare.
Under ObamaCare, the states “shall” establish a health insurance exchange. If a state chooses not to provide its own exchange by January 1, 2014, the federal government, under the Health and Human Services Secretary, will set up an exchange for it. However, so far, there has been little guidance from the federal government on key questions about what the exchanges should include and how they should be run.
The state health insurance exchange bill, HB 115 would set up an exchange with a mix of federal money and funds from the state’s high-risk pool as well as fees on those who buy insurance policies through the exchange. It would be governed by a 12 member board of directors comprised of businesses, health insurance, medical provider and public representatives.
Based on other states’ exchange experiences, however, these programs bear little resemblance to a market-based healthcare system. Instead of individuals purchasing among a wide variety of private insurance plans and taking personal ownership of their coverage, an exchange expands enrollment in public programs like Medicaid and constricts consumer health choice.
The constitutionality of Obamacare has yet to be determined as the U.S. Supreme Court is unlikely to hear the case until next year. Because its constitutionality is undetermined and because we have until 2014 and probably beyond based on the HHS’ postponed deadlines, there is no rush to set up an exchange process this year. In a time of a major budget crisis, why waste money and resources setting up a health benefits exchange when our own state leadership thinks Obamacare should be held unconstitutional? If the federal law and its required exchanges are found unconstitutional, the exchange program becomes completely moot.
Only when and if Obamacare is upheld, should our legislature worry about researching and setting up a health benefits exchange. And if it is required, North Carolina and its legislators should implement an exchange that is as competitive and market-driven as possible to ensure patients receive the best options available.