Bogeymen and the Supreme Court

Judging by the number of lobbyists employed by insurance industry organizations, those whose business is writing medical care insurance policies were some of the most avid proponents of the legislation popularly known as Obamacare. I recall listening to an interview on NPR with the CEO of Aetna, one of the largest medical coverage insurers. The prospect of a huge number of additional premium payers that the individual mandate would bring made him palpably giddy.
One of the favorite categories of bogeymen in this country is the insurance industry. Insurance companies tend to be unpopular because most seem to have a lot of money, which, of course is necessary if they are going to be able to pay claims without going bankrupt. Also, the only contact most of us have with them is when we pay premiums. The rare instance when an insured suffers a loss is the only time the insurance company pays. Quite often we the perception is that the payment is inadequate. Insurance claims are occasionally denied or limited as not being within the scope of the risk assumed. Again, often we believe that denial or limitation is unfair. We have all heard the lament that insurance companies love to take your money, but are loathe to pay a claim. This is all primarily a result of policyholders’ failure to read and understand what risks are being covered. Few document have language as arcane as insurance contract, though most now define terms that have special meaning. There is also the regulatory mechanism that forces most consumer policies to contain inclusions and exclusions mandated by government regulators. Those regulatory agencies are subject to capture by the industry; that is, a regulator is more likely to favor the regulated industry than the general public because those in the industry are the most interested and knowledgeable. It is too bad that most of us do not get that concept.
Next week the U.S. Supreme Court will hear oral arguments on challenges to the constitutionality of the Obamacare legislation, particularly in regard to the mandate that every individual, with narrow exceptions, must procure medical insurance that covers services dictated by the Secretary of Health and Human Services. An issue doesn’t reach the Supreme Court unless it is of great national importance or it is an extremely close call. In this case, both criteria are met. So much so that the Court has scheduled nearly three days of arguments, which is almost unheard of. Predicting how it will turn out is a scientific wild-ass guess (SWAG) at best. Having appeared before appellate courts, I can personally say that there is no reliable way to tell what a judge or justice is thinking by their questions, so the arguments will not give us reliabel clues. Once the arguments close, the case goes into a black hole until a decision and opinion are released. In close, difficult cases that is almost always at the end of the Court’s term in June. I can be later.
In any event, the arguments next week are sure to be extensively covered by the media, and it will be interesting.
This issues to be argued and the points on which the case will most likely turn are lucidly discussed in an article published today in the Wall Street Journal’s op-ed page. I recommend it highly and it can be found at this link.

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