Thursday, June 28, 2012

Supreme Court Rules on Obamacare.

What happened: Today, in a 5-4 ruling, the Supreme Court upheld the Affordable Care Act (also known as "Obamacare," as the President was the champion behind a nationalized healthcare plan).

How they did it: Chief Justice John Roberts was the deciding swing vote. Normally a conservative, he authored the opinion and sided with the traditional liberals on the court (Ginsburg, Breyer, Kagan, and Sotomayor) in calling the law a valid use of the taxing power of Congress (Art. 1, Sec. 8, clause 1), and not an abuse of the commerce clause  (Art 1. Sec. 8, clause 3) of the constitution. The traditional conservatives (Kennedy, Scalia, Thomas, and Alito) dissented, not buying the tax argument, saying the majority essentially re-wrote the law in order to uphold it.

The key language in the 193 page opinion, found here, on page 44:

"The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. "

What this means: The nuts and bolts of the law are: If you don't have healthcare, you better get it. We (the government) will help, by expanding federal programs like Medicare and Medicaid,  and trying to make private healthcare cheaper. If you don't want to or don't get insurance, you have to pay a fine/tax.

What this really means: Great question. Its up to you, America. Re-elect the President, and it will likely stand. Romney has already said he will repeal it, before today and again, today. The states, who likely have final say, have been very mixed in their reactions up to now, with some already providing their own versions of the plan (like California and Colorado), and others violently opposed to it (like Texas.)

Here at home, the numbers are (according to the AP) 25% of Texans are uninsured, which translates to roughly 6.2 million folks. Texas has not implemented an insurance exchange, which is the general precursor to implementing the program, and governor Perry, not surprisingly, is opposed, claiming Texas can "deliver health care more efficiently, more effectively and cheaper than the federal government."

My Take: I get the tax argument, sort of, but as the opponents of the law have argued, this really is a commerce issue, and it allows the legislature to force the people into buying a product. This product is healthcare, but it could also be broccoli. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida, who, on January 31, 2011, ruled that ObamaCare was unconstitutional, argued that if Congress can find good reasons to make us buy health insurance, it can find good reasons to make us “buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.” This is why they argued it as a tax.

Starting to make sense? I don't envision a nation of mandatory broccoli purchases, so this is a bit far-fetched, but it is a concern. On the flip side, I am not opposed to healthcare for all, but at a time of unprecedented national debt levels and in the midst of a recession (I'm not buying the "we are recovering" arguments, just yet) I do not know where the money to pay for it will come from, and I certainly don't want to pay for it myself.

Another way to look at it is the court punted: they didn't say if it was good or bad, they just called it a tax, and indirectly asked the American people to decide if they wanted the law based on who they elect in November. Will more insured people make insurance cheaper? Will expanding prescription coverage for medicare users make insurance cheaper? Will not being able to deny coverage for pre-existing conditions make insurance cheaper? I don't really see how, but if you fall into any of these categories, its a win for you.

As an elder law/Medicaid attorney, I guess it gives me the opportunity for a few more clients. If you have elderly family members who do not have healthcare coverage, its time to start talking and thinking about their long-term care. Talk to someone who can help them take advantage of the programs that are out there, and the new ones that today's ruling (might) create.

Monday, June 11, 2012

Common Carriers, Eminent Domain, and Pipelines

In Texas, we have pipelines. Lots of them.  Normally, the process works like this to put them in the ground:

Big Company wants to lay a pipe. They come ask your permission, and offer to pay you for your trouble. You can accept, haggle, or say no. However, no doesn't always mean the company will take no for an answer.

Enter eminent domain. Eminent domain is the power of the government to buy your land from you, even if you say no. The best examples are highways, railroads, and utilities, like pipelines. Is it "fair?" Sometimes no, but we all like highways, railroads, and utilities, so we deal with it as a society. And normally, there are appeals processes and ways to make sure you get what you are due.

Normally, it is difficult for a private company to be awarded this power. It is usually reserved to the federal government, states, and municipalities. And pipeline companies. 

The first successful challenge of a pipeline companies unfettered right to claim "common carrier" status is  Texas Rice Land Partners Ltd. v. Denbury Green Pipeline-Texas LLC (No. 09-0901). Until recently, all a pipeline company had to do was check a box on a form, and they could condemn your land.  Some pipelines are legitimately used for a public purpose, or as "common carriers" defined per the Texas Natural Resources Code (Section 111.002(6)) as a company that “owns, operates, or manages, wholly or partially, pipelines for the or for the public for hire...” This is fine.  However, other companies have used and abused this process when it was convenient for them. 

The tricky part is that the pipeline in the case was a CO2 pipe. The Texas oil and gas industry tried to get the case re-heard to clarify the perceived "bad law," in their favor but that attempt was denied. Will the ruling apply to other types of pipelines? The ruling itself makes reference to an oil and gas pipeline in a hypothetical. I think it is clear that the Supreme Court meant "all" pipelines, but it will probably require more litigation to hash that out. 

I think this is the correct ruling. I've tried to tangle with the Texas Railroad Commission before (the entity that approves pipeline paperwork), and, although helpful, they are simple a ministerial agency, not an investigative one. The Denbury case provides landowners a review process that was simply not available before. 

What will this mean? Some are already challenging the Keystone XL pipeline relying on the Denbury decision. For others, maybe your family farm or backyard is in the path of a proposed pipeline. If you or someone you know is dealing with a pipeline company who wishes to cross your land, consult an attorney who knows the law and how to protect your interests. 

I've worked for a pipeline company, and I've negotiated against one. There is a middle ground to be had, that is fair to all parties. The Denbury case helps the landowner get there a little easier.