The planks of the package included medical liability reform, rules to make health insurance purchases possible across state lines, and efforts to ensure that employees could take their insurance with them if they left a job.

Would such policies be a good replacement for the current health care reform package? Would they expand access to health insurance? Would they bring down costs?

Serious political debate in Republican circles over the substance, scope, and scale of what should “replace” the Affordable Care Act (ACA) has been more or less frozen in suspended animation since its enactment in March 2010 for three reasons. (1) Grassroots activists focused on outright repeal as a common unifying goal. (2) Elected GOP officials and other Republican candidates for office scrambling to stay in front of the energetic parade opposing ObamaCare found it much easier to hope that the Supreme Court would do most of their work by ruling the Affordable Care Act unconstitutional and invalid in its entirely. (3) Developing a coherent and popular replacement plan is a much heavier lift, particularly once one tries to move beyond the facile rhetoric and sound bites of past proposals that dodge the difficult policy complexities and political tradeoffs of sustainable health reform.

This short-term equilibrium will end, one way or another, after the Supreme  Court announces its decision later this year, most likely in mid- to late-June after three days of oral argument in late March. Whether the Court leaves nothing standing in the ACA, affirms it across the board, or provides a split decision (such as invalidating the individual mandate but leaving portions of the health law in place), the political climate will change. Republican members of the current Congress, let alone the GOP presidential nominee and Republican leaders of the next Congress, will need to outline and articulate their own basic visions of health policy that go beyond “none of the above” or “back to the future.” And they can do better. Repeal of the current health law is a necessary, but not a sufficient, part of fixing our health care system.

A credible “Replace” proposal needs to deal with a number of important issues:

·        Restructuring the safety net,

·        Protecting vulnerable Americans at risk for serious pre-existing health conditions,

·        Refocusing Medicaid to become more accountable, effective, and sustainable,

·        Creating a different, competition-based regulatory regime for private health   insurance,

·        Limiting and re-targeting open-ended taxpayer subsidies for health care services,

·        Helping to connect consumers to real health care markets and better health care products,

·         Managing the evolution from a dominant employer-based private insurance market toward one based on choice and competition across a more level playing field,

·         Developing new pathways to seek and find better value in health care options,

·         Preparing the structural underpinnings for long-overdue Medicare reform, and

·         Accounting for the challenges of timing and transition in inter-related health policy reforms.

Past Republican proposals  on Capitol Hill have hit the above targets only partially at best and far from dead center; mostly because the political marketplace did not yet ask them to do much more. This will change somewhat in the second half of 2012 – particularly during the campaign season, and even more so in the next Congress and presidential administration starting in January 2013.

A real Replacement program does not have to invent new ideas and find imaginary friends. It can build on many policy proposals waiting on the shelf, such as:

·         Extending HIPAA incentives for continuous insurance coverage to the individual market;

·        Funding robust high-risk pool protection for those facing serious health risks who experience difficulty finding affordable insurance coverage;

·        Taking Medicaid off ACA-injected steroids, delegating most of its operational policies to the states (with negotiated standards of accountability for outcomes), and mainstreaming more beneficiaries in the below-65, non-disabled population into private health insurance coverage options;     

·        Fostering responsible competition in insurance  regulation among the states and transitioning to an information-based approach to regulation;

·         Moving to defined contribution financing of taxpayer subsidies for health care across all coverage platforms (primarily Medicare, Medicaid, and employer-sponsored health insurance);

·         Limiting any benefit standards to the most flexible and minimal levels possible

·         Assigning state governments the task of ensuring that their reformed insurance markets will guarantee that willing buyers can find willing sellers (e.g. non-“exchange” mechanisms that rely on competition, consumer choice, and enhanced information assistance -- instead of proscriptive regulation); 

·         Avoiding policy bias between employer-sponsored insurance and individual insurance, without dictating the speed or direction of changes in the mix of coverage;

·         Building a necessary information infrastructure for pluralistic competition in provider performance  measurement and consumer assessments of health care value;

·         Instituting premium support and competitive bidding as structural building blocks for Medicare reform, before determining what level of assistance future taxpayers can and will support; and

·         Acknowledging that better incentives, information, choices, competition, responsibilities, and trust in individuals – rather than top-down mandates and arbitrary budgetary formulas – must drive sustainable health care change.   

There are many important policy details and implementation options within the above policy reforms, and some of us have examined them in greater depth elsewhere. The political calendar dictates that it’s too soon to legislate a replacement package in 2012 but it will be too late to consider it after 2013. The best way to prepare for this narrow window of opportunity would be for House Republicans to schedule a series of “soft” hearings on replacement concepts that introduce them for substantive criticism, feedback, and refinement. The best surprise in 2013 would be “no last-minute surprises” as Republicans build greater support for a newer approach to health policy that reinforces unifying visions and values. 

Fortunately, this question was answered a year ago at a Capitol Hill briefing with representatives from the National Center for Policy Analysis, the American Enterprise Institute, the Cato Institute, the Heritage Foundation and other organizations. Here is a brief summary:

There are 10 structural flaws in the Affordable Care Act (ACA). Each is so potentially damaging, Congress will have to resort to major corrective action even if the critics of the ACA are not involved. Further, each must be addressed in any new attempt to create workable health care reform.

1.  An Impossible Mandate

Problem: The ACA requires individuals to buy a health insurance plan whose cost will grow at twice the rate of growth of their incomes. Not only will health care claim more and more of every family's disposable income, the act takes away many of the tools the private sector now uses to control costs.

Solution: 1) Repeal the individual and employer mandates, 2) offer a generous tax subsidy to people to obtain insurance, but 3) allow them the freedom and flexibility to adjust their benefits and cost-sharing in order to control costs.
 

2.  A Bizarre System of Subsidies                           

Problem: The ACA offers radically different subsidies to people at the same income level, depending on where they obtain their health insurance - at work, through an exchange or through Medicaid. The subsidies (and the accompanying mandates) will cause millions of employees to lose their employer plans and may cause them to lose their jobs as well. At a minimum, these subsidies will cause a huge, uneconomical restructuring of American industry.

Solution: Offer people the same tax relief for health insurance, regardless of where it is obtained or purchased - preferably in the form of a lump-sum, refundable tax credit.
 

3.  Perverse Incentives for Insurers

Problem: The ACA creates perverse incentives for insurers and employers (worse than under the current system) to attract the healthy and avoid the sick, and to overprovide to the healthy (to encourage them to stay) and underprovide to the sick (to encourage them to leave).

Solution: Instead of requiring insurers to ignore the fact that some people are sicker and more costly to insure than others, adopt a system that compensates them for the higher expected costs - ideally making a high-cost enrollee just as attractive to an insurer as low-cost enrollee.
 

4.  Perverse Incentives for Individuals

Problem: The ACA allows individuals to remain uninsured while they are healthy (paying a small fine or no fine at all) and to enroll in a health plan after they get sick (paying the same premium everyone else is paying). No insurance pool can survive the gaming of the system that is likely to ensue.

Solution: People who remain continuously insured should not be penalized if they have to change insurers; but people who are willfully uninsured should not be able to completely free ride on others by gaming the system.
 

5.  Impossible Expectations/A Tattered Safety Net

Problem: The ACA aims to insure as many as 34 million uninsured people. Economic studies suggest they will try to double their consumption of medical care. Yet the act creates not one new doctor, nurse or paramedical personnel. We can expect as many as 900,000 additional emergency room visits every year - mainly by new enrollees in Medicaid - and 23 million are expected to remain uninsured. Yet, as was the case in Massachusetts, not only is there no mechanism to ensure that funding will be there for safety net institutions that will shoulder the biggest burdens, their "disproportionate share" funds are slated to be cut.

Solution: 1) Liberate the supply side of the market by allowing nurses, paramedics and pharmacists to deliver care they are competent to deliver; 2) allow Medicare and Medicaid to cover walk-in clinics at shopping malls and other unconventional care - paying market prices; 3) free doctors to provide lower-cost, higher-quality services in the manner described below; and 4) redirect unclaimed health insurance tax credits (for people who elect to remain uninsured) to the safety net institutions in the areas where they live - to provide a source of funds in case they cannot pay their own medical bills.
 

6.  Impossible Benefit Cuts for Seniors

Problem: The ACA's cuts in Medicare are draconian.  By 2017, seniors in such cities as Dallas, Houston and San Antonio will lose one-third of their benefits. By 2020, Medicare nationwide will pay doctors and hospitals less than what Medicaid pays. Seniors will be lined up behind Medicaid patients at community health centers and safety net hospitals unless this is changed. Either 1) these cuts were never a serious way to fund the ACA, because Congress will cave and restore them, or 2) the elderly and the disabled will be in a separate (and inferior) health care system.

Solution: Many of the cuts to Medicare will have to be restored. However, Medicare cost increases can be slowed by empowering patients and doctors to find efficiencies and eliminate waste in the manner described below.
 

7.  Impossible Burden for the States

Problem: Even as the ACA requires people to obtain insurance and fines them if they do not, the states will receive no additional help if the estimated 10 million currently Medicaid-eligible people decide to enroll. Although there is substantial help for the newly eligible enrollees, the states will still face a multibillion dollar, unfunded liability the states cannot afford.

Solution: States need the opportunity and flexibility to manage their own health programs - without federal interference.  Ideally, they should receive a block grant with each state's proportion determined by its percent of the nation's poverty population.
 

8.  Lack of Portability

Problem: The single biggest health insurance problem for most Americans is the lack of portability. If history is a guide, 80% of the 78 million baby boomers will retire before they become eligible for Medicare. Two-thirds of them have no promise of postretirement health care from an employer. If they have above-average incomes, they will receive little or no tax relief when they try to purchase insurance in the newly created health insurance exchange. To make matters worse, the ACA appears to encourage employers to drop the postretirement health plans that are now in place.

Solution: 1) Allow employers to do something they are now barred from doing: purchase personally-owned, portable health insurance for their employees. Such insurance should travel with the individual - from job to job and in and out of the labor market; 2) Give retirees the same tax relief now available only to employees; and 3) Allow employers and employees to save for postretirement care in tax-free accounts.
 

9.  Over-Regulated Patients

Problem: The ACA forces people to spend their premium dollars on first-dollar coverage for a long list of diagnostic tests. Yet if everyone in America takes advantage of all of the free preventative care the ACA promises, family doctors will be spending all their time delivering care to basically healthy people - with no time to do anything else. At the same time, the ACA encourages the healthy to over consume care, it leaves chronic patients trapped in a third-party payment system that is fragmented, uncoordinated, wasteful and designed for everyone other than the patient.

Solution: 1) Instead of dictating deductibles and copayments, give patients greater freedom to save for their own small dollar expenses in health savings accounts, which they own and control; and let them make their own consumption decisions. 2) Allow the chronically ill access to special health accounts, following the example of Medicaid's highly successful Cash and Counseling program, which allows home-bound, low-income disabled patients to control their own budgets and hire and fire those who provide them with services.
 

10.  Over-Regulated Doctors

Problem: The people in the best position to find ways to reduce costs and increase quality are the nation's 778,000 doctors.  Yet today they are trapped in a payment system virtually dictated by Medicare. The ACA promises to make this problem worse by encouraging even more unhealthy government intervention into the practice of medicine.  

Solution: Providers should be free to repackage and reprice their services under Medicare. As long as their proposals reduce costs and raise quality, Medicare should encourage resourceful, innovative attempts to create a better health care system.

Given how little Speaker John Boehner, Senate Minority Leader Mitch McConnell, House Majority Leader Eric Cantor and other top Republicans have done on this issue, one can only speculate on what a GOP replacement plan would look like. The Republicans have not devoted any time or effort to making health care more affordable or accessible for America's seniors, families and businesses.

Instead they have focused all of their attention on trying to repeal the Affordable Care Act and eliminate Medicare and Medicaid as we know them. From the little we've seen of actual proposals, the GOP would give our health care back to the insurance companies so they can deny our care and jack up our premium rates whenever they want – and stick struggling families with the tab. Apparently, if the Republicans have their way, consumers will be able to cross state lines to buy policies that provide less care and leave them with huge medical bills. Regardless of what the Supreme Court does, I'm not expecting much from the GOP.

Which pathway do you think will be more likely to bring down the legislation: the Supreme Court's June decision, or the November election?

Or despite these challenges, do you think the health reform law will survive to see 2013?

Do you think the president should defend his landmark health reform law, especially in front of the Supreme Court justices who are set to rule on its constitutionality this year?

Should the president offer up ways to save money in Medicare and Medicaid, like raising eligibility age for Medicare or changing how the federal government matches state Medicaid contributions?

Should President Obama address Republican efforts to convert Medicare into a program that gives seniors a subsidy to purchase private health insurance?

Or do you think the president should steer clear of health policy altogether?

The president has a powerful story to tell the country about the importance of health security to America’s middle class and why we have to stop the Republican assault on Medicare, Medicaid and the Affordable Care Act (ACA). The ACA is an extraordinary accomplishment and is already making a huge difference in people’s lives by making health care more affordable for families and businesses and providing cost-saving benefits and protections for consumers. Along with Social Security, these bedrock programs make our people healthier and our society more just. They are key to everyone in this country having a fair shot at achieving the American Dream.

In his State of the Union address, President Obama can use plenty of examples. Thanks to the ACA, 2.5 million young adults were able to obtain health coverage this past year. The worst practices of big insurance companies, including denying coverage for pre-existing conditions, are now against the law. Health care is becoming more affordable for small businesses and seniors on Medicare. When fully implemented the law will provide tens of millions of Americans the same range of coverage choices as members of Congress. People will have peace of mind that they will always be able to afford good coverage – even if they lose a job, start a small business or retire early. These are powerful themes the President could discuss, and polling has repeatedly shown that they are highly valued by the American people despite relentless attacks on the law by the Republicans.

The president could use the speech to remind the nation that Medicare and Medicaid are the cornerstones of our health care system and are needed to preserve and expand the middle class. We don’t want a society that leaves everyone to fend for themselves when they fall ill. Only if everyone has affordable health care can we have a vibrant middle class to power the world’s leading economy.

The stakes are huge. If the Republicans get their way and turn Medicaid into a so-called block grant, millions of seniors would be thrown out of nursing homes. Middle class families would be slammed with crushing health care costs for their parents while struggling to make ends meet, save for their own retirement and send kids to college. Children and people with disabilities will go without needed care. Huge costs will be shifted to state governments, jobs will be lost and the economy will be hurt. President Obama could help Americans understand this.

The Republicans want to eliminate Medicare as we know it and send our parents and grandparents into bankruptcy. Their plan would transform guaranteed health care benefits for seniors into a voucher scheme that would send hundreds of billions of dollars directly to private insurance companies. Retirees would be forced to pay two to three times more out of their pockets to care for themselves, and it would fall to adult children and extended families to bankroll the difference – whether they can afford to or not.

Every Republican plan to ‘reform’ Medicare or Medicaid is just another way to shift health costs to seniors who cannot afford to pay more. Were the Republicans to succeed in repealing the ACA, the truth is they have nothing to replace it with.

Lots of work remains to be done, but when it comes to health care the State of the Union is strong. President Obama is fortunate to have a Health and Human Services Department that’s doing a solid job implementing the ACA and protecting the pillars of the U.S. health care system. We must stand strong to fight off the GOP’s hyper-partisan attacks on health laws that are making the country a healthier, fairer place.

President Obama’s State of the Union speech provides an opportunity to discuss many of the priorities for the 2012 election, but more important than the frame of our political debate are the core issues that voters are most concerned about – jobs and the economy. These top priorities for all Americans have not changed since the last election. So it is a safe bet that these macro-issues will be the President’s central theme. But what is more interesting is what the President will actually propose to help improve the economic and jobs landscape in the U.S.  We in the biopharmaceutical sector are particularly interested since innovative industries such as ours are job-creators and tremendous contributors to our nation’s economic growth.

As we all know, innovation and economic growth go hand-in-hand.  For this reason, it is my hope that the President also spends significant time talking about the value of innovation. But this year, it is critical that he delve deeper into this topic and cast a wider net.  We are very interested in hearing specific policy proposals on how we can ensure that America remains the world-leader in innovation, particularly medical innovation.   President Obama should use this opportunity to propose ideas that will foster medical innovation in the long-term rather than focusing on short-term policies that do not encourage, and in some cases may detract from, future medical progress.   

At a time when our economy is still fragile, it is essential that government and industry work together to help create jobs and improve the economic outlook – and a sound innovation agenda is critical to meet these important goals. 

Four inter-connected policy pillars that I believe are important to sustain the economic and scientific eco-system, advance medical innovation and protect U.S.-based biopharmaceutical jobs are the following:

o   A regulatory framework to spur innovation – meaning a predictable, consistent and robust regulatory system supported by the best, experienced regulators using the latest, best science;

o   A thriving public/private scientific ecosystem – meaning better collaboration and cooperation;

o   A business environment that embraces biomedical progress – meaning an understanding that the science, while potentially amazing, is difficult, the investment costs high and the rewards are uncertain;

o   A healthcare system that better recognizes the value of medicines – meaning innovative medicines contribute both to improving patient health and can help control short- and long-term healthcare costs.

Whether you agree with the President or not, health reform is one of the most important issues facing our country and the President should absolutely defend this accomplishment in his speech and use this chance to make a pitch in front of the SCOTUS.

In fact, if I were the President’s speechwriter, his remarks concerning health care would look something like this:

 “As we begin implementing the Patient Protection and Affordable Care Act, it’s important to remind the American people that we have guaranteed that no one will be rejected for health insurance, even if they have, what the insurance industry liked to call ‘pre-existing conditions’. Through this plan, we are making healthcare more accessible and affordable through insurance exchanges and accountable care organizations  that ensure physicians are working together to provide patients quality care and not worrying about how many tests they should run. We also closed the so-called ‘donut hole’ under Medicare Part D to lower the cost of prescriptions for seniors.

“It’s also important to note while a substantial improvement, the ACA is not perfect.  I will work with anyone, Republican or Democrat, to make sure this landmark legislation doesn’t stifle job creation and innovation. One provision that deserves scrutiny is Section 6002, better known as the Physician Payment Sunshine Act.

“This provision was not part of my original health care reform proposal and, ironically, it was slipped into the health reform bill without full and thoughtful consideration.

 “Let me read you some actual language from the proposed regulation. You won’t believe this:

 “For example, if once during the calendar year, a sales representative from an applicable manufacturer brings $25 worth of bagels and coffee to a solo physician's office for a morning meeting, regardless of the number of individuals who partake, the per covered recipient cost is $25. Since this falls above the $10 minimum threshold for reporting a payment or other transfer of value…this meal must be reported. However, if the practice group includes five physicians, then the per-covered recipient cost is $5 (regardless of whether all five physicians actually consumed any of the food provided), so the payment would not need to be reported.”

“I am not making this up…  this provision does nothing to increase access to care or improve outcomes – two things that inspired me to work so hard on health reform. Rather, it’s indicative of the government overreach that has left so many Americans frustrated.  We should not – and, if I have anything to do with it, we will not – have government bureaucrats counting bagels!

“So I say let’s work together to continue to reform the health care delivery system so our energy is focused on ways to increase access, lower costs and make Americans healthy.”

Will these arguments be persuasive to the justices? Will the Supreme Court uphold the health reform law?

All of the major hospital associations, including AHA, have argued since the outset that the requirement for individuals to buy health insurance – typically called the ‘individual mandate’ – is constitutional.  We intend to file an amicus brief in the Supreme Court today reiterating that position.  We believe the Supreme Court will uphold the individual mandate for compelling legal and humanitarian reasons. 

The basic unavoidable fact is the lack of insurance coverage for millions substantially affects all Americans.  Perhaps more than any other sector of the health care field, hospitals appreciate this sad fact every day.  AHA just released new statistics on the amount of uncompensated care hospitals provided in 2010 – it was a staggering $39.3 billion. Most of that amount is accounted for by patients unable to pay for the care they received. 

Some challengers have urged the Court to strike down the individual mandate because it could lead to a ‘broccoli’ mandate thereby allowing the government to force Americans to purchase things they don’t want and won’t use.  That is the simply the wrong analogy. As we’ve stated to the courts, “to put things in the challengers’ terms, Congress did not make anyone buy a General Motors vehicle.  It instead made sure no one can drive a General Motors vehicle off the lot and tell the car dealership to bill their neighbor or to absorb the cost itself.”   We believe the Supreme Court will understand this important distinction and uphold the individual mandate. 

To the surprise of many, opponents of the Affordable Care Act took the broccoli analogy literally. Not buying insurance is simply inactivity, they argued. If government can prohibit this form of inactivity by forcing people to buy insurance, it can force them to buy anything, even broccoli. If Congress can prohibit such ‘inaction,’ they argued, freedom is in jeopardy. More to the point, the constitution doesn’t allow limits on ‘inactivity.’

The appeal to the broad public of the argument that not buying insurance is inactivity may not have been surprising. But the acceptance of the argument by some federal judges is downright astounding, as the distinction rests on a fundamental ignorance of how insurance markets work.

The use of health care is both predictable and random. It is predictable in the sense that some people are more likely to use health care than others—because of age, chronic illness, or genetic disposition. It is random because the onset of many illnesses is unpredictable and because accidents happen.

One would expect that, on the average, those who voluntarily go without health insurance will be comparatively light users of health care. But one would also expect that some fraction of the uninsured will incur large health costs that they cannot afford to pay. Thus, letting some people decide freely not to buy insurance raises costs in two ways for those who do buy insurance. First, it removes from the insurance pool people with lower-than-average costs, thereby boosting premiums for those who do buy insurance. Second, some of those who do not buy insurance will end up using more medical care than they can pay for. Those unpaid bills will also boost costs for the insured.

Thus, the decision not to buy insurance affects the insurance market, which Congress indisputably has the power to regulate. Furthermore, repeated Supreme Court decisions have established that Congress can regulate actions outside the web of commerce that indirectly affect commerce, such as the decision by a farmer to grow wheat for his own consumption is subject to regulation under the commerce clause.

To be sure, this is the position that the government has advanced in its brief in defense of the Affordable Care Act. But it is also the core of two separate, carefully-crafted decisions by conservative appellate court judges, Laurence Silberman and Jeffrey Sutton. Silberman was widely rumored to be on the short list for a Supreme Court appointment during the administrations of Ronald Reagan and George H.W. Bush. Sutton, a former clerk to Justice Antonin Scalia, was nominated to the sixth circuit in 2001 by president George W. Bush. Resistance to his appointment was so stiff that no vote was scheduled for two years; and when the vote took place, 41 senators voted against confirmation. Indeed, the administration’s brief seems crafted to appeal directly to decisions that Justice Scalia signed and that Silberman and Sutton invoked. In particular, the administration brief stresses a point that was key in Justice Sutton’s decision—that, whatever judges may think of the wisdom of a law, they are bound to affirm the law if it is reasonably related to a power that the Constitution gives Congress.

Of course, no sensible person should ever try to forecast what nine very independent justices will decide, particularly when the stakes are as high as those in the decision about the constitutionality of the Affordable Care Act. So, here is my prediction. By a vote 7 to 2 or 8 to 1, in several different opinions, the Court will declare the mandate to carry insurance to be constitutional. Justice Thomas, continuing a long line of decisions calling for a rollback of federal regulatory authority, will dissent. So, might Justice Alito. But Justice Scalia will back the reasoning of his former clerk, Judge Sutton, that demolished the ‘action/inaction’ distinction. The other justices will agree, although for different reasons.

Jointly, the Supreme Court will put the issue of health reform exactly where it belongs...in the hands of the American people. Next November, the electorate will determine the fate of the Affordable Care Act by determining who will occupy the White House from January 20, 2013 through January 19, 2017. In a democracy, that is where the decision should be made.

It is more likely than not that the Supreme Court will strike down the individual mandate as going beyond the federal government's constitutional powers. The government has to date been unable to articulate a limiting principle to the power it asserts -- not even to the courts that eventually ruled its way -- nor give examples of laws that would go beyond it. That will not be good enough to gain five votes before the Supreme Court.

Predicting the outcome of a Supreme Court decision is hazardous, but it is easy to suggest what's at stake in the decision the Supreme Court will have to render on the Patient Protection and Affordable Care Act (PPACA). 

As most of the judges who have considered the Act have made clear, if Congress can compel individuals to participate in interstate commerce by requiring that health insurance be purchased from private parties by all Americans, there is very little, if anything that Congress may not do.  The proponents of the Constitutionality of the PPACA's individual mandate have not been able to explain how this extraordinary assertion of federal power over 1/6 of the economy is consistent with the Tenth Amendment's clear statement that our federal government is supposed to be one of limited and enumerated powers. 

Either the primary police power -- the power, in short, to govern in the name of the people -- remains where the framers put it (with the state and local governments), or it does not.  The majority of Supreme Court decisions on the reach of Congress's interstate commerce regulatory power do state that that power is limited by the Tenth Amendment's and Federalism's major premise that ours is a government of dual sovereignty, with the primary police power lodged in the state and local governments. 

If the Supreme Court still takes the Tenth Amendment and Federalism seriously, it has no choice but to follow the decisions such as those of Judge Vinson on the federal District court, which decision is now on indirect review by the Court. 

In effect, Judge Vinson found the PPACA's individual mandate barred by the Tenth Amendment, and he wisely concluded that the individual mandate, as the linchpin of the PPACA, was so crucial that if it was unconstitutional, so was the rest of the Act.  He was correct, and the friends of Federalism are fervently hoping that the Supreme Court understands that.

I resolve that I will not think that funding the NIH fulfills all of our medical research needs and that I will keep research in mind when considering all healthcare policies, including “Sunshine”, EHR adoption, comparative effectiveness, FDA appropriations, HIPAA, tax policy and medical liability reform.