Retirement Looks Good About Now

With all of the new requirements for practicing medicine under the Affordable Care Act (ACA), retirement for those who can do it looks like a pretty reasonable option. Unfortunately, there is a clause under the Act that may take this option off the table. Section 5210 Establishing a Ready Reserve Corps, amends Section 203 of the Public Health Service Act (42 U.S.C. 204) such that there will now be a Ready Reserve Corps for service in time of national emergency.

Physicians have always been subject to a draft during times of war. This new law now makes them subject to a draft during any national emergency. It is not clear under the law as to what would constitute a "national emergency," but Section 203(c)(2)(D) states that the Ready Reserve Corps "be available for service assignment in isolated, hardship, and medically underserved communities ...to improve access to health services."

Physicians are the "ready reserve corps". Not much has been written in the news media about this small section of the Affordable Care Act, but as a physician looking forward to retirement, it is of concern. In fact, the law specifically states that this reserve force must be able to respond on short notice and may even have to serve "involuntarily" (Section 203(c)(2)(B) of the Affordable Care Act). Does this mean that they can keep me from retiring and put me in a medically underserved community which may need a cardiothoracic surgeon? The way I read the law, the answer is "yes."

The uses of this Ready Reserve Corps would be to "(A) participate in routine training to meet the general and specific needs of the Commissioned Corps; (B) be available and ready for involuntary (emphasis added) calls to active duty during national emergencies and public health crises, similar to the uniformed service reserve personnel; (C) be available for backfilling critical positions left vacant during deployment of active duty Commissioned Corps members, as well as for deployment to respond to public health emergencies, both foreign and domestic; and (D) be available for service assignment in isolated, hardship, and medically underserved (emphasis added) communities ...to improve access to health services."

On July 2, 2008, President Obama stated that "We cannot continue to rely on our military in order to achieve the national security objectives that we've set. We've got to have a civilian national security force that's just as powerful, just as strong, just as well-funded." Could the Affordable Care Act be the first legislation used in setting up this new national security force and will the physicians so drafted be the spear-head of this force? Why should a civilian national security force need to be just as powerful as our military? Why does it need to be as well-funded? Will this force be armed with military style weapons? This seems to be overkill to me but there is not much on the internet or in the main stream media to help discern the role of this force.

Would this new force be constitutional? The ACA funds it and the commissioned officers of the ready reserve are to be appointed by the President. This would be different than the commissioned officers of the regular corps which are appointed by the President with the advice and consent of the Senate (emphasis added). Why no requirement for the advice and consent of the Senate for the officers of the ready reserve corps? I don't know but I am worried. Who will the President appoint? What kind of power will these officers have? Will it be the same type of power as the regular corps or will there be differences? Where will the checks and balances be if the Senate has no role in deciding who these officers will be; this is very different from the requirements of the other uniformed services. Why the difference? Will this force only be answerable to the President?

Nancy Pelosi infamously stated that we would have to pass the Affordable Care Act in order to find out what was in it. What she has stated has now come to pass.

Sections of the ACA that I thought were clearly unconstitutional have passed Supreme Court scrutiny. First, mandating the purchase of health care insurance was deemed to be a proper exercise of the taxing power of the United States (National Federation of Independent Business, v. Kathleen Sebelius, Secretary of Health and Human Services, 648 F.3d 1235). Originally, President Obama stated that this power was allowed under the Commerce Clause and it was not (emphasis added) a tax. Justice Roberts stated the opposite in his opinion. The mandate was not allowed under the Commerce Clause but it is allowed as a tax. Oh, well.

The other Supreme Court decision that I was way off on was the case of King v. Burwell, 135 S.Ct. 475 (2014). Originally, the ACA would only allow tax credits for those who used exchanges that had been set up by the states. When states did not set up an exchange, then the federal government would set one up but the people in those states would not be given any tax credits which were intended to help pay the premiums for the health insurance. The intent of the Congress was to get the states to buy into Obamacare but many of the states chose not to do this.

Despite the clear language of the statute, the Internal Revenue Service, under the direction of the White House, started giving tax credits to everyone, even to those in states that had not set up an exchange. The Executive branch is supposed to enforce the law, not change it. When this issue made it to the Supreme Court, the Court decided to repair the law. Since the Judicial branch is supposed to state what the law is, it seems like the Court was overstepping its authority when they essentially changed the law such that state exchanges really meant state and federal exchanges.

By its decision, the Court essentially gave the Internal Revenue Service the authority to spend billions of dollars on tax credits for those using the federal exchanges. The power of the purse, I thought, was to be invested to the legislature, not the Court.

It is said that the Supreme Court is not last because it is right, it is right because it is last. There must be finality in the law or we will have a society in disarray. Asking me to make a prediction as to a law's constitutionality would not be a good idea; I am often wrong, especially as it relates to Obamacare.

Darryl Weiman's website is www.medicalmalpracticeandthelaw.com