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What the Dickens?

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At a recent meeting, conversation centered around the coming attempts to overturn Public Law 111-148 (formerly known as H.R.3590 – Patient Protection and Affordable Care Act). Some are hopeful of a quick finding that the law is unconstitutional. Others are concerned that if that is indeed the decision, insurers will instantly choke on a diet rich in sick individuals spewing large claims and completely lacking in healthy folks.

That is one logical concern, but as we know, logic does not always govern. I kept thinking about Charles Dickens’ Oliver Twist in which Mr. Bumble is informed that “…the law supposes that your wife acts at your direction.” Bumble replies that, “If the law supposes that, the law is a [sic.] ass.”

Dickens’ novel centered on a band of pickpockets and mixed grim realism with merciless satire. As close as some may believe we may be to that motif, it’s probably safe to say that even a novelist couldn’t have conjured the decision in a 1923 case that some have alluded to in today’s developing legal battle.

In Frothingham v. Mellon (1923) a Massachusetts citizen and the state challenged the use of federal tax dollars under the 1921 Maternity Act. The details are online, but the Court’s decision may not make sense – even after a second … or third reading. The Supreme Court concluded that neither the individual citizen nor the state had the standing to bring the suit, since any potential constitutional violation that hurt everyone could be challenged by no one.

With decisions like that, my guess is that we will think of Mr. Bumble frequently as we go through the coming legal tsunami over PPACA.

Check out more blog entries from David Saltzman.


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