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Frank Hull Is A Woman, And Other Good Things To Know About The Eleventh Circuit Health Care Panel

Eleventh Circuit Judge Frank Hull

On Wednesday the Eleventh Circuit will become the third court of appeals to hear oral arguments in a lawsuit challenging the landmark Affordable Care Act. Although the legal significance of a case has very little to do with the identity of the parties, this case is likely to be one of the most closely watched ACA cases because its plaintiffs include more than two dozen Republican state officials acting on behalf of their states, and because the case against the ACA — weak though it may be — will be argued by conservative superlawyer Paul Clement.

The three judge panel hearing the case includes Chief Judge Joel Dubina, a George H.W. Bush appointee, and Clinton-appointed Judges Frank Hull and Stanley Marcus. Court-watchers, however, should be  cautious about reading too much into this panel because of its apparent partisan makeup. Judges Hull and Marcus are both compromise nominees Clinton selected in order to overcome obstruction from the Republican-controlled Senate — indeed, Judge Marcus is a Republican who was previously appointed to a federal district court by Ronald Reagan. Dubina’s partisan credentials might be a bit more secure, as his daughter is a GOP congresswoman who voted to repeal the ACA.

Nevertheless, it is unlikely that this panel will take the same Cee Lo Green attitude towards President Obama’s greatest legislative accomplishment that Judge Roger Vinson took in the court below. Vinson is the only judge in America to toss out the entire Affordable Care Act because he objects to just one provision — and he based his analysis of this question on a brief submitted by an anti-gay hate group. His opinion includes an entirely gratuitous nod to the Tea Party, and a Center For American Progress examination of his opinion identified at least 40 factual and legal errors. Because Vinson went so far out of his way to flag his Tea Party sympathies he could wind up spooking the Eleventh Circuit panel more than he stands to convince them to strike down the law.

ThinkProgress also spoke to several former Eleventh Circuit law clerks who believe that, while this panel does lean right, the ACA is unlikely to receive the same kneejerk opposition in the court of appeals that it received from Judge Vinson. Two former law clerks emphasized that Judge Marcus is a judicial minimalist who will not want to reach the constitutional merits unless he absolutely has to — and these lawsuits will have to overcome at least four procedural barriers before a court will be allowed to reach the merits. Both of the courts of appeals to hear challenges to the ACA have suggested that they may dismiss the case on procedural grounds, and even ultra-conservative Judge Jeffrey Sutton dropped hints last week that he may not be able to strike down the law.

One former clerk also pointed out that, while Hull has a reputation as a conservative, she earned this reputation largely based on her very conservative decisions in criminal and individual rights cases — cases where the conservative position is also the pro-government position. In cases seeking to limit Congress’ authority to regulate, all three of the panel’s judges have rejected conservative claims that a federal law exceeds Congress’ power to regulate interstate commerce. In other words, Hull’s record is consistent with that of a very conservative judge, but it is also consistent with that of a judicial minimalist such as Judge Marcus.

So the bottom line is that the Affordable Care Act will go to court Wednesday in front of a fairly conservative panel. At the same time, however, the case against the ACA is hindered by procedural barriers, an exceptionally weak district court opinion, and a panel that may be more inclined towards minimalism than towards the kind of maximalist judicial activism that drives this litigation. If Wednesday’s panel votes to uphold the law, that will be a very good sign that the law is on safe ground moving forward.

Politics

VIDEO: Right-Wing Hypocrisy On ‘Mediscare’

The right wing is not happy with the rhetorical attacks the Democrats are launching against the budget recently passed by the House GOP. Conservatives complain that it’s unfair criticism to note that their budget dismantles Medicare by transforming it into an exceedingly stingy voucher scheme.

Everyone — from Rep. Paul Ryan (R-WI), the architect of the budget plan, to GOP presidential hopeful Newt Gingrich, to House Majority Whip Eric Cantor (R-VA), to conservative media personality Sean Hannity — has taken up the cry that Democrats are engaging in demagogic “Mediscare” tactics. Moreover, 42 House GOP freshmen sent a letter to President Obama in May asking him “to rein in Democratic attacks on GOP members who voted for the House budget.”

Given the unusually earnest — and frankly, moralistic — tone of the Republicans’ objections to the Democrats’ criticism of the GOP plan, it’s worth reviewing exactly how these same conservative reacted to the Democrats’ own health care reform package back in 2009:

NEWS FLASH

In Defense Of Canadian Health Care | Medical myth buster Aaron Carroll debunks the myths about the Canadian health care system: Doctors in Canada are not flocking to the US to practice, Canadians are not flocking here to get care, Doctors are not less satisfied practicing in Canada than the US, and Canada’s wait times aren’t due to its being a singe-payer system.

NEWS FLASH

Gohmert Moving Away From Ryan’s Medicare Plan? | The reason I voted for it is because it’s moving things in the right direction … If you give seniors the option to go Medicare or go private insurance, where the government takes care of all the costs for them, they are going to go that way, while it’s actually cheaper for the government.” [Gohmert on May 26]

I’m not a real strong supporter of the proposal offered by Paul Ryan on health care. But it is a starting point and it contains some interesting points. But rest assured, I will not support any plan that adversely affects the retirement system for people over 55 and I will not support any plan that lessens the quality and control seniors have over their own health care.” [Gohmert on June 6]

Rick Santorum Kicks Off Presidential Bid By Misrepresenting Paul Ryan’s Medicare Proposal

Rick Santorum kicked off his campaign today by misrepresenting Rep. Paul Ryan’s Medicare plan and then lying about the effects of his own proposal. Santorum, who actually wants to accelerate the cuts in the GOP’s Medicare proposal, appeared on ABC’s Good Morning America to make the big announcement, but when pressed by host George Stephanopuolous on why he would want to change Medicare for current seniors, Santorum argued that seniors are already familiar with the changes he’s proposing:

STEPHANOPOULOS:You mentioned Congressman Ryan’s budget plan. It appears that you want to go farther than Congressman Ryan. You have criticized him for not applying his changes to Medicare, which Democrats say would end medicare as we know it. You would say to people 55 and older, yes, your Medicare will be changed as well?

SANTORUM: Well, remember, George, almost 25% of seniors right now have what the Ryan plan is. It’s called Medicare Advantage. And in fact that number was growing up until Barack Obama slashed the program.

STEPHANOPOULOS: But that’s an option.

SANTORUM: Well, the point is, Seniors were able to take money and go out and purchase insurance. And by the way, the seniors most likely to do it were lower income, less educated consumers. Why? because they thought it was a better deal. And the drug program, Medicare Part “D” is exactly the Ryan program. In other words, seniors get resources from the federal government, the seniors go out and make choices. No senior believes they’re being thrown off a cliff. It’s working wonderfully. Seniors love it.

Watch it:

But one can’t compare Medicare Advantage and the Ryan plan. Currently, the 25 percent of seniors who are enrolled in Medicare advantage have a choice of various private plans and traditional free-for-service Medicare. Ryan, would end the traditional Medicare option and force future seniors to purchase private insurance with “premium support” vouchers that depreciate over time. That’s the exact opposite of the Advantage program in which government payments to Medicare Advantage plans per enrollee actually averaged 109 percent of fee-for-service costs in 2010! A similar distinction applies to Medicare Part D. As Austin Frakt explains:

All Part D plans (PDPs and the drug portion of MA plans) submit bids for the cost of standard coverage. From these bids a nationwide average is computed and a statutorily determined fraction of this average cost is set as the “base premium.” Finally, a plan’s premium (charged to each enrolled beneficiary) is the base premium plus the difference between that plan’s bid and the national average bid. Thus, ignoring adjustments for beneficiary risk and other details (found here) a plan is paid by Medicare a fixed monthly per-beneficiary rate equal to the national average bid less the base premium. Because the payment is tied to national average bids (a market signal) this is a form of competitive bidding.

No such system exists in the Ryan plan or under Santorum’s expansion proposal. Under those plans, seniors would be receiving less support every year, regardless of increasing health care costs.

British Conservative Government Promises Not To Privatize National Health System Following Public Backlash

While Republicans are trying to privatize government health care in the United States, conservatives in Britain will promise to protect the government’s central role in that national’s health care system today when Prime Minister David Cameron rolls out his five health care pledges. The principles come following a public backlash against Cameron’s proposal for a “a radical reorganization of England’s health care system, introducing legislation that would hand responsibility for most of the country’s health budget to its 42,000 general practitioners and, his political opponents say, open the door to private competition that could threaten the foundations of socialized care.”

Essentially, Cameron is now promising not to privatize the National Health Service:

The Prime Minister will defend the shake-up in a speech that will include five guarantees about the future of the health service.

The series of personal pledges will include keeping waiting lists low, maintaining spending and no privatisation.

Others will be ensuring patient care is properly co-ordinated and that it remains universally available and free at the point of delivery, according to The Daily Telegraph.

This suggests that nurses and hospital doctors will maintain a role in commissioning patients’ services.

All of this runs counter to how Republicans like to talk about the national British health care system — as a worst case scenario that rations care and imposes unreasonable waiting times and one which Obamacare embraces. The reality of course is far more complicated. The NHS is not without its problems, but it still outranks the American alternative — in almost every quantifiable metric. For instance, according to the Commonwealth Fund’s 2012 international comparison report, the U.S. health care system “ranks last or next-to-last on five dimensions of a high performance health system: quality, access, efficiency, equity, and healthy lives”:

Alabama Accepts The Reality Of Obamacare — And Its Federal Funds

Gov. Robert Bentley (R-AL)

While many states are moving slowly to implement the requirements of the Affordable Care Act, Alabama — a red state with a Republican governor — is on track to institute the law’s health insurance exchanges and is increasing spending on its Medicaid program — all the while challenging the constitutionality of the law in court. It’s a more nuanced view of reform that recognizes the practicality of using the law’s new federal dollars to cover its citizens and the need to continue implementing the measure to receive more federal funds. Faced with the choice of money and politics, Alabama is choosing the money. Politico’s Sarah Kliff has the story:

Last week alone, Republican Gov. Robert Bentley issued an executive order to move forward on an Alabama health insurance exchange and lashed out at the state’s Republican-controlled Legislature for attempting to scale back his proposed $247 million increase in Medicaid funding by a mere $7 million. [...]

But for as much as Medicaid strains state budgets, it’s also a major contributor. In states with high rates of poverty, like Alabama — where poverty is the third-highest in the nation — the federal government provides as much as three-quarters of the entitlement program’s budget. For every dollar Alabama spends on Medicaid, Washington ponies up $2.80.

State officials are also pushing back against the GOP’s plans to block grant the Medicaid program:

“The idea of a block grant really will not save my program,” Alabama Medicaid Agency Director Bob Mullins told POLITICO in a recent interview. “I’ve already got a minimum program, and if that block grant says I have to maintain that minimum program [with less money], well, obviously, that’s not going to work very well.” [...]

Under the current matching-per-enrollee payment system, he said, “If I had 100,000 more people sign up in the next six months, I [would] get more federal drawdown.

“If you give me a block grant, I end up up a creek.”

Many other states continue to accept federal grants while claiming that the law which authorized those funds is unconstitutional. But Alabama stands alone in recognizing the ACA is established law and that any other alternative to it would leave the state with less federal dollars. It’s the kind of argument that should make a lot of sense to Republican governors and maybe even give them political cover to follow Alabam’s lead.

The Morning CheckUp: June 6, 2011

Welcome to The Morning CheckUp, ThinkProgress Health’s 7:00 AM round-up of the latest in health policy and politics. Here is what we’re reading, what are you?

Support up for Romneycare: “63 percent of Massachusetts residents support the 2006 health law, up 10 percentage points in the past two years. Just 21 percent said they were against the law.” [Boston Globe]

States slow to implement health reform: fewer than “one-fourth of states have taken concrete steps to create health insurance marketplaces” while 43 states, “have made fresh cuts to Medicaid.” [Washington Post]

But Alabama is moving forward with implementation: Politico’s Sarah Kliff reports that when “it comes to health policy, Alabama is a Republican-controlled state that pushes back against the grain in just about every way. It has a governor gunning to set up a health exchange, a Medicaid director skeptical of block grants and a rapidly expanding Children’s Health Insurance Program.” [Politico]

South Carolina is sitting on its grant dollars: the Haley administration is “leaving hundreds of thousands of federal health care dollars in limbo when the money could be spent right away to help uninsured residents, patient advocates said.” [The Herald]

A state-by-state analysis of the GOP’s Medicare plan: a new report by Reps. Henry Waxman and Frank Pallone (D-NJ) finds that “GOP’s provisions to alter the Medicaid program would and individuals with disabilities who rely on Medicaid to supplement their Medicare coverage or pay their Medicare cost sharing” in Rep. Paul Ryan’s (R-WI) district. [Full report]

Republicans don’t seem interested in developing replacements to ACA: “Our focus right now is on repealing all of ‘Obamacare’ and pieces of it where we can,” said Rep. John Kline [R-Minn.], the chairman of the Education and Workforce Committee, one of three panels with jurisdiction over the health policy. “And then we’re working on spurring the economy and getting America back to work with jobs.” [The Hill]

Democrats stay quite on GOP’s Medicaid cuts: “for all the Democrats’ posturing and campaigning against Republican plans for Medicare, the GOP budget actually makes more immediate and deeper cuts to Medicaid. But Democrats haven’t been blasting the GOP Medicaid plan with nearly the same fervor, even though Republicans would cut about $750 billion from the program during the next decade and end the guaranteed federal match for states.” [Politico]

States turn to foundations to help finance implementation of reform: “short on cash and time, officials in California and at least a dozen other states have turned to philanthropies to help pay for the extra work required under the federal health law.” [Kaiser Health News]

Texas Governor Rick Perry signs new tort reform legislation: the measure institutes a ‘loser-pays’ provision in lawsuits deemed to be frivolous and “allows a trial court to dismiss a lawsuit immediately if the case is not based in law or fact.” [Business Insurance]

Indiana risks $4.3 billion with abortion law: “Indiana conservatives are clearly hoping the administration will blink if it comes to cutting off health insurance for poor people. The money pays for all kinds of routine health care.” [Associated Press]

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