Category Archives: U.S. Constitution

Obama’s Executive Order, Its Impact on Health Care Costs, and the Constitutionality of Executive Orders

Pres. Barack Obama will address the nation tonight at 8 pm (Thursday, November, 20, 2014). He is expected to discuss his executive order that will delay deportations of up to 5 million migrants.

What does an executive order on immigration have to do with Medicaid? Well, you can bank on the fact that almost none of the 5 million people has private health care coverage….which means, there is a high likelihood that most, if not all, the people would qualify for Medicaid.

With the expansion of Medicaid in many states, adding another 5 million people to the Medicaid program would be drastic.  Think about it…in NC, approximately 1.8 million people rely on Medicaid as their insurance.  5 million additional Medicaid recipients would be like adding 3 more North Carolinas to the country.

So I looked into it…

The Kaiser Family Foundation website states that even immigrants who have been in America over 5 years are sometimes still barred from getting Medicaid and those people would remain uninsured.  The Kaiser website states that under current law “some lawfully present immigrants who are authorized to work in the United States cannot enroll in Medicaid, even if they have been in the country for five or more years.”

By law, only immigrants who have green cards are entitled to enroll in Medicaid or purchase subsidized health care coverage through the ACA. Usually those immigrants with green cards are on the course to become citizens.

Regardless of whether Obama’s executive order tonight will or will not allow the 5 million people Medicaid coverage (which it will not), the executive order absolutely will greatly increase health care costs

The truth is that, with or without Obama’s executive order, the government already funds some health care for undocumented immigrants. We have an “emergency Medicaid” program and it pays hospitals to provide emergency and maternity care to immigrants if: 1) he or she otherwise would be Medicaid eligible if they weren’t in the country illegally or 2) he or she are legally present in this country for less than 5 years.  (Which is the reason that ER wait times are so long…if you have no health insurance and you get sick, the ER is precisely where you go).

However, with the additional 5 million people living within the borders of USA, it is without question that the “emergency Medicaid” funds will sharply escalate as hospitals provide more emergency care. ER waits times will, inevitably, increase. Health care costs, in general, surge as the population increases.  And the addition of 5 million folks in America is not a “natural” increase in population.  It will be like we added additional states.  Overnight and with the stroke of a pen, our population will grow immensely.  I guess we will see whether we get “growing pains.”

An act of Congress will still be required before the undocumented immigrants impacted by the executive order would be allowed to participate in the Medicaid programs and the Children’s Health Insurance Program (CHIP) coverage.

As to the Constitutionality of executive orders…

Executive orders are not specifically mentioned in the Constitution.  Many people interpret the nonexistence of executive orders in the Constitution as barring executive orders.

Article I Section I of the Constitution clearly states that all legislative powers reside in Congress. However, an executive order is not legislation. Technically, an executive order is a policy or procedure issued by the President that is a regulation that applies only to employees of the executive branch of government.

Nonetheless, our country has a vast history of president’s issuing executive orders. Abraham Lincoln issued an executive order to engage military in the Civil War, Woodrow Wilson issued an executive order arming the military before we entered World War I, and Franklin Roosevelt approved Japanese internment camps during World War II with an executive order.

Regardless of your political affiliation, in my opinion, it is very interesting that Obama would initiate an executive order regarding immigration given his past statements over the years complaining about past presidents’ executive orders being unconstitutional.

In 2008 campaign speeches, Obama regularly emphasized the importance of civil liberties and the sanctity of the Constitution.

In fact, in speeches, Obama stated, “most of the problems that we have had in civil liberties were not done through the Patriot Act, they were done through executive order by George W. Bush. And that’s why the first thing I will do when I am president is to call in my attorney general and have he or she review every executive order to determine which of those have undermined civil liberties, which are unconstitutional, and I will reverse them with the stroke of a pen.”

Whether or not people believe that executive orders are constitutional, it is indisputable that presidents on both sides of the aisle have issued executive orders.

Reagan and Bush issued executive orders. Although there is an argument that those executive orders came on the heels of congressional bills, as adjustments. Neither Reagan nor Bush simply circumvented Congress.

Going back to tonight’s anticipated executive order allowing 5 million migrants to remain in America…

While the executive order will not allow the 5 million people immediate access to Medicaid and other subsidized health care, it will allow 5 million more uninsured people to exist in America, which will, undoubtedly, increase health care costs and ER visits. And, eventually, the additional 5 million people will be eligible for Medicaid, subsidized health care, and all other benefits of living in America.

Williams Mullen Hosts “The State of the State of Health Care” Panel Discussion

Williams Mullen is hosting a free panel discussion on “The State of the State of Health Care.”  Please see below!

The panelists will be Rep. Nelson Dollar, Steven Keene, General Counsel to the NC Medical Society, Barbara Burke, from BCBS, and me.  The panel discussion will begin at 4:00.  Then from 5:00-6:30 we will have free drinks and appetizers.

Please feel free to come and bring others.  But we do request that you register here by October 10th in order for us to have a correct head count.

panel

 

 

Will Heated Disagreements over Medicaid Expansion Cause the Eradication of the Freedom of Speech?

Over last few months, I have noticed multiple examples of a state government attempting to silence opposing views, especially when it comes to Medicaid expansion/reform. Two of them, from Louisiana and Missouri, are discussed in this blog.  Those government efforts to silence protests raise serious concerns about the health of our freedom of speech.  Is our freedom of speech so limited now that we cannot express dissimilar views from those in government?  The First Amendment of our U.S. Constitution protects the freedom of speech.

Here are some out-of-state examples of attempts to thwart the freedom of speech:

Down in Louisiana, a group called Moveon.org, leased a billboard and advertised the following:

Louisiana

For obvious reasons, the Governor of Louisiana, Bobby Jindal, disapproved of the billboard and brought a lawsuit against Moveon.org in federal court requesting the federal judge to Order Moveon.org to remove the billboard.

The federal judge denied the lieutenant governor Jay Dardenne’s request for an injunction, and the billboard remains.

Similarly, in Kansas City, Missouri a couple dozen clergymen were arrested by Capitol police for singing “Amazing Grace” at the legislature.  The pastors were peacefully protesting that refusing to expand Medicaid was an “amazing disgrace.”  These pastors should have been protected by the freedom of speech and the freedom to assemble.

North Carolina is not immune from these attempts to silence disparate viewpoints.  During the 2013 General Assembly session 924 people were arrested during Moral Monday protests.  (The Moral Monday protests consist of people chanting and yelling their political views around and in the legislative building).  More have been arrested this year during the short session, which is now in session.  My firm has its office in the PNC building downtown Raleigh, so each Monday, I can hear the protestors walking the streets, chanting their cheers, and, subsequently, the police sirens.  I understand that many issues drive these Moral Monday protests and that Medicaid expansion/reform is one of these issues.

924 arrested people…that’s a lot of people arrested.  For each arrested person, taxpayers are paying for the person’s stint, however short, stay at the police station.  The police are devoting resources and time to peaceful protesters instead of violent criminals.

In an effort to stay some of these economic considerations and other considerations, the General Assembly had new Legislative Building rules ready before the beginning of the short session that would prohibit people from “making a noise loud enough to impair others’ ability to conduct a conversation in a normal tone of voice” and would provide for the arrest of those “creating an impediment to others’ free movement around the grounds.”

It is understandable that the legislators would like their offices quiet enough to hold conversations; I know my nerves get irritated by loud music or conversations outside my office door.  But is prohibiting the loud noise and arresting those noise culprits the right answer?  And who is to say what a “normal tone of voice” is.  For gracious sake, Bill Clinton argued about the definition of the word “is.”  “Normal tone of voice” is vaguer than the word “is.”  I know my husband would tell you that my normal tone of voice is “obnoxiously loud,” so is my tone of voice “normal?”

Recently Judge Carl Fox issued an Order stating that the new Legislative Building rules with phrases that include “disturbing behavior” and “disruptive signs,” are too vague to enforce.  Judge Fox stayed the General Assembly’s implementation of the new rules until a determination as to the constitutionality of the rules could be made.

As previously stated, North Carolina is not the only state that is attempting to limit speech and protests.  And the Republicans are not the only group attempting to silence opposing views.  Earlier this year, the federal government, vis-a-vis the IRS, announced that it would try to rewrite rules to limit how much political activity nonprofits can do and still qualify for tax-exempt status, which would limit the ability of social welfare charities to even discuss the political candidates close to an election (hence, inhibiting the freedom of speech).

But, first, why should we care whether people can protest at the legislature or comment on political views?

When I was a first year law school student, one of the core class requirements was Constitutional Law class.  The First Amendment to the U.S. Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There are always exceptions to the general rule of you having the right to say whatever and wherever you like.  Despite these limitations, as of now, in America, we still celebrate the freedom of speech.

When evaluating whether a person has the freedom to say something, it is easy to get caught up on the content of the message.  Suppose I wrote something here inflammatory against women.  Many people would have a hard time discussing the constitutionality of my speech without focusing on the content of that statement.  However, our courts must look past the content of the statement to the constitutionality of the speech.

The Supreme Court set its standard for limiting the freedom of speech (that we use today) back in the 1960s.  The High Court overruled its previous “clear and present danger” standard and wrote:

“[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.

(emphasis added).  The above language was written by the Supreme Court in 1969 and was followed by the Cohen v. California case.  In Cohen, the Supreme Court overturned a conviction of a man who was wearing a shirt with the depiction: “Fuck the Draft!” inside a courtroom.  In one of the most eloquent decisions in history, Justice John Marshall Harlan, who wrote the majority opinion, stated that Cohen’s jacket constituted protected political speech.  He wrote that, despite the use of an expletive, “one man’s vulgarity is another man’s lyric.” The First Amendment recognizes enough breadth to permit a wide range of differing political views, even speech that exceeds traditional limitations of courtesy and polite behavior.

It is the logical assessment by Justice Harlan that we need to continue to implement today.  In order to determine whether we should limit a person’s freedom of speech, we must close our ears to the content of the speech and determine whether the speech is protected by the Constitution.  Read the Constitution.  Read Supreme Court cases regarding the freedom of speech.  The more polarized the content of the speech, the more likely we may be to immediately ban the speech without due regard for the Constitution.

Think about….what are your hot button topics? Abortion?  Fracking?  Stem cell research?  The death penalty?  Racism?  Now think about the worst possible thing that any person could say to you, which would incite your anger uncontrollably.  Say it to yourself in your head.  Then imagine yourself comparing the “hate speech” to whether “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”  Does the imagined words incite you to lawless action?  Unless you imagined statements simply horrible, most likely, the words would cause you anger, frustration and resentment, but not cause you to conduct imminent lawless action.

My point is that we cannot confuse constitutionally protected speech with statements by people with differing political and moral views.  I remember my dad told me one time, “If there are two people with the exact same opinions, then one person is not necessary.”

Differing views shape our country.  But, recently, in the area of Medicaid, health care and Obamacare, people on both sides of the aisle are forgetting to step back and read the Constitution.  People on both sides of the aisle are stooping to name calling and attempts to restrict speech.  Our Constitution does not limit the freedom of speech to: “anything that will make everyone happy”…or “any statements that are aligned with the views of whoever is in charge.”

What if we lived in a country in which you are thrown in jail for placing a billboard touting your disagreement with the administration’s decisions or for singing “Amazing Grace” in a legislative building?

If we lived in a country in which you could be thrown in jail for speaking your mind, then we need to make immense amendments to our Constitution, and I also better start researching where to move.