U.S. Circuit Court makes wrong – though predictable – health care decision

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Today’s decision by a panel of the U.S. 6th Circuit Court of Appeals upholding the health care law’s individual mandate to purchase insurance was not unexpected. In fact – given the tenor of arguments before that panel – it is kind of a dog-bites-man story. Expansive views of federal power – in this case the federal Commerce Clause (to regulate interstate commerce) – led to a tortured reading by this court. Yes, Virginia, at least in the 6th Circuit, you will have to buy insurance meeting federal requirements in 2014. By the same logic, Congress may soon address whether you have to eat your broccoli, too…

This particular decision isn’t the last word and legal argument concerning the health care law’s constitutionality. This case itself will be appealed (to the full 6th Circuit and eventually beyond) and other judicial circuits may well reach different conclusions. Ultimately, the U.S. Supreme Court will likely reach a conclusion on the boundary limits of federal power when it comes to health coverage.

We think the right outcome will declare PPACA (Patient Protection and Affordable Care Act) unconstitutional. Congress overreached, particularly on both the individual and employer mandates. Incidental to the question of constitutionality (but not to our concern), PPACA also represents bad health policy that will upend employer-sponsored coverage to our ultimate universal chagrin. That’s why – in addition to rooting for the right outcome in the courts – we are working hard to change PPACA, both legislatively and by regulation. It is, at least, a three-dimensional problem.

Hundreds of retailers blanketed Capitol Hill last week to seek support for employer mandate repeal legislation (S. 20 / H.R. 1744) among other priorities. NRF has helped lead the business drive to increase support for these bills: the House bill will likely reach 100 cosponsors after it returns from its July 4th recess. Earlier this year we supported the successful House (and unsuccessful Senate) efforts to repeal the law. The burdensome Form 1099 reporting requirement repeal marked the first crack in PPACA’s veneer.

We are also leading the allied business community by creating a forum (Employers’ Health Care Clearinghouse) to tie together the multitude of issue-specific health coalitions. It is an issue and coalition-rich environment – and NRF is in it to reduce the cost of health care and health benefits. Retail jobs – and prices and service in our stores – hangs in the balance.

It is a jobs issue … and is also an economic issue. Health coverage is important but it takes too big of a share of our economy and contributes far too much to the federal deficit in a structural way. Without question – for those with and those without coverage – it also takes too much from hard-pressed family budgets.

We retailers – who compete intensely on the basis of value comparisons – know that we are not getting good value from our health care system. Whether through the courts, in Congress or through regulation, we are dedicated to driving down the cost of health care and coverage – and building the value-driven health care system of tomorrow.

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