VIEW FULL BRIEF:
Brief of Amici Curiae The James Madison Institute, et al.

SUMMARY OF ARGUMENT:

“Federalism is one of the cornerstones of our constitutional system.  By reserving broad powers to the States and to the people, federalism protects liberty, enhances accountability, and fosters innovation.  The Act, however, undermines the essence of federalism by denying States a meaningful choice on whether to expand their state Medicaid programs.  States depend heavily on the hundreds of billions of dollars dispersed by the federal government through Medicaid.  Because the federal government funds at least half of each State’s Medicaid costs, no State could operate a comparable program without federal dollars, and no State could realistically decline to offer basic medical care to its neediest citizens.  Nevertheless, the Act requires States to spend tens of billions of additional dollars to expand Medicaid coverage, and threatens States with the loss of all Medicaid funding unless they comply.  Accordingly, the Act leaves States with no realistic choice but to continue to participate in Medicaid, in violation of the Tenth Amendment and the principles of federalism articulated in South Dakota v. Dole.

“Moreover, because of Medicaid’s size and the Act’s all-or-nothing penalty provisions, the Act is uniquely suited for scrutiny under the coercion doctrine.  Medicaid represents far and away the largest source of federal outlays to the States, and the largest component of spending by the States.  The Act, in turn, requires States to spend tens of billions of additional dollars to expand coverage, on penalty of losing every dollar of federal Medicaid support.  These and other provisions suggest that Congress designed the Act to preclude the States from exercising a meaningful choice.  For these reasons, if the coercion doctrine is ever to have any role in protecting the principles of constitutional federalism, the Act must be deemed invalid.”

CONCLUSION:

“For these reasons, States have no meaningful choice other than to comply with the ACA.  Accordingly, the ACA is invalid under the Tenth Amendment and the principles of federalism articulated in South Dakota v. Dole.“

Loyola discusses the federal government’s usurpation of state authority to regulate health care, the resultant failure of those interventions and mandates, why health care regulatory authority should be reserved to the states, and a mechanism for rolling back this federal overreach.

“The relentless expansion of the federal government into every area of our lives is incompatible with a Constitution based on local self-government, economic freedom, and shared sovereignty among state, federal, and local authorities. Health care regulation should be returned to the states, along with the tax revenues the federal government sucks away to fund its misguided programs, in order to ultimately lead to accessible and affordable health care for Americans.”

View Press Release (PDF)
View Full Brief:
“Passing the Health Care Compact in Florida” (PDF)

For many years the cost of health care in the United States has been rising faster than the rate of inflation. This trend affects families, employers, and governments at all levels — federal, state, and local. The rising cost of care — and of the insurance to pay for it is a major drag on a struggling economy.

Indeed, a new Kaiser Family Foundation report says the annual cost of an average family’s health insurance now exceeds $15,000. For employers who subsidize their workers’ coverage, it’s a cost that inevitably depresses wage growth. Moreover, when a firm’s workload increases, the cost of healthcare coverage is an incentive to cope by extending the hours of existing workers rather than adding new hires.

Some economists argue that inflation in health care is symptomatic of the fact that it’s immune to the market forces — the tug of supply and demand, competition as a moderator of pricing — that typically guide a free economy. Others diagnose the ailment differently, arguing that market forces could work in health care, as in other sectors of a free economy, but government policies have snuffed out the chance.

Whatever chance may have existed for market forces to apply to health care was probably lost with the shift to a system in which “other people” pay the bills. With rare exceptions, medical bills are sent to a third party — a traditional health insurance company, an HMO, or a government program such as Medicare or Medicaid. These entities may use their size to bargain for lower prices, but reducing the revenue derived from patients in some groups often results in cost-shifting and higher prices for others.

Given this assessment, can anything be done to rein in the rising cost of health care? Yes, quite possibly. As this study suggests, there may well be creative steps that states can take to moderate some of the costs that providers must pass along to their patients. Among those costs: malpractice insurance, together with the related costs of “defensive medicine” — the use of diagnostic tests and medical procedures that arguably are not necessary except to mount a defense against being sued for negligence.

States have repeatedly attempted various remedies to address problems related to medical malpractice and defensive medicine — particularly when confronted by crises in which malpractice insurance was said to be in danger of becoming unavailable or unaffordable. The challenge now is to act before another crisis arises.

One factor that must be considered is that Florida’s courts, in general, have frowned upon proposed solutions that infringe on the right of injured patients to seek redress through the tort system. As this study suggests, however, there are alternatives that better serve the interests of aggrieved patients than a tort system utilizing civil courts that are currently burdened by a high volume of other matters, including property foreclosures.

These alternatives, including a “patient compensation system,” could conceivably take less time than the courts to reach a decision and could ultimately direct a greater share of any financial settlement to the aggrieved patient and less to court costs, attorney fees, and other litigation expenses. This study suggests that these alternatives are worth exploring.

View Press Release (PDF)
View Executive Summary (PDF)
View Full Study:
“Alternative Solutions to Florida’s Medical Malpractice System” (PDF)

“The voters of Florida are rightly concerned about the rising costs of healthcare.  The practice of defensive medicine – doctors ordering unnecessary tests to keep from being sued – is a hidden driver to those costs, with some experts estimating defensive medicine to be 26 percent of overall healthcare spending. We must come up with an innovative policy approach that aligns the interests of patients and their physicians to stop the practice of defensive medicine and optimize quality health care.” –Dr. Robert McClure, President of The James Madison Institute

Click Here for Full Press Release

“The voters of Florida are rightly concerned about the rising costs of healthcare.  The practice of defensive medicine – doctors ordering unnecessary tests to keep from being sued – is a hidden driver to those costs, with some experts estimating defensive medicine to be 26 percent of overall healthcare spending. We must come up with an innovative policy approach that aligns the interests of patients and their physicians to stop the practice of defensive medicine and optimize quality health care.” –Dr. Robert McClure, President of The James Madison Institute

Click Here for Full Press Release

State lawmakers ought to strike a blow for individual liberty.

Foreword

Robert F. Sanchez, Policy Director, The James Madison Institute