The Supreme Court has upheld almost all of the big health-care law sometimes called Obamacare but actually titled the Patient Protection and Affordable Care Act.
A bare five-member majority consisting of Chief Justice John Roberts plus the court’s four liberals (Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan) ruled that the individual mandate, requiring everyone who can afford it to buy a health insurance policy, is constitutional.
But that oversimplifies the coalition that upheld the law. The liberals ruled that the creation of the mandate is acceptable as part of the federal power to regulate interstate commerce. Roberts disagreed on that point, but found that the mandate can be treated as a form of tax, and on that basis can be upheld.
Three conservatives – Justices Antonin Scalia, Clarence Thomas and Samuel Alito, plus the usual moderate swing vote – Anthony Kennedy – ruled that the mandate exceeds the power granted to the federal government under its power to regulate interstate commerce. And without the mandate, the rest of the law falls apart. So they voted to strike down the whole bill.
Obviously this is huge and has political, legal, constitutional, Supreme Court institutional and enormous health-policy dimensions.
It will take some time to figure out the details. If you want to read the ruling for yourself, it is here. (It comes in several portions and that file includes the dissent by the four justices who preferred to strike down the whole law.)
Roberts broke ranks with the four liberals on one important aspect of the law, but it will take a while to figure out the implications.
The law as passed significantly expanded eligibility for Medicaid, the health insurance program for the poor. Medicaid is a state-federal cost-sharing program. As written, the feds threatened to cut off federal Medicaid payments to states that refused to go along with the expansion. Roberts ruled that the feds cannot do that. States that want to opt out of the expansion of Medicaid can do so without being penalized by the withholding of federal funds elsewhere in the Medicaid program.
It will take a while to figure out the impact of this. Most Republican governors around the country are hostile to the overall law. Apparently, Roberts’ ruling gives them the authority to opt out of the Medicaid portion of the law without being cut off from the Medicaid program entirely. But if, in doing so, they would be foregoing federal assistance that would have enabled them to expand health insurance for some of their own poor citizens, it might not be that easy for them to turn it down.
Dragooning the states?
Upholding the individual mandate as a lawful exercise of the taxing power makes sense if that’s what it takes. I’m not sure why the government was so insistent on calling it “not a tax” or what the constitutional or legal implications of holding it to be a tax are but it makes no practical difference if the law is upheld.
The majority opinion’s sop to the right wing is to make medicaid expansion optional with the States on the grounds that the threat of withdrawing all Medicaid support was “impermissibly” or “unduly coercive.” All this does is allow those states controlled by Republicans who are in a snit over Obamacare to visit their indignation on their poor and helpless citizens by withholding health care coverage for them. Over the long term, it hopefully will make no difference as such states unelect the those officeholders who place their narrow principles over the health, safety and welfare of the people they are supposed to serve.
Government Responsibility
Freedom requires responsibility. Health and welfare are personal responsibilities.
There’s Theory, Then There’s Reality
That would be fine if a single medical event couldn’t financially ruin people. It would be fine if rates were affordable and those who really need it (pre-exisitng conditions) weren’t excluded by a profit-motive health industry.
Theory meets reality, and in this case, theory gets flattened.
The truth is, health care is inappropriate for the profit driven, private industry model. Which is why every other advanced country in the world has some form of universal health care.
People are more important than political theory.
Are health and welfare only the responsibility of individuals?
What happens when healthy individuals become seriously ill? And because of this illness, the insurers jack the rates up so high that the individual can no longer afford the health insurance, or the health insurance is terminated altogether? Or, a pre-existing conditions exists? Unfortunately, this scenario happens all to frequently with the present outmoded health care/health insurance system.
So where does the responsibility lie in these cases? Perhaps there are a few in the one percent category that can afford to insure themselves. But for the rest of us, it must be the full responsibility of the insurers to cover all of the associated costs of an illness, yes, at an affordable cost, or our health insurance system will continue to flounder.
Whether you like “Obamacare” or not, it does mandate this type of complete health insurance coverage. The caveat here, of course, is that health insurance is mandatory (a caveat the insurance industry is happy to comply with, considering the highly expanded business they will enjoy). While I have heard a chorus of strident objections from the folks on the GOP side of the isle to the mandatory provision, practical solutions that address the full coverage issues are few and far between, if any.
The “Government” didn’t call it a tax, because they never intended it to be a tax. Rather, it’s a mandate to purchase health insurance, just as stated require everyone who drives a car to purchase automobile insurance. That’s not a tax. Since federal powers allow them to levy taxes, Roberts thinks that it should be called a tax and therefore it is legal.
I fail to see how the penalty of withdrawing all Medicaid funds from states that fail to expand Medicaid is unduly coercive, since this kind of thing has been done before, without complaints from the Right Wing Crazies. Anyone remember the very clear threat to withhold federal highway funds to states that failed to enforce certain other laws? Nobody thought that was unduly coercive.
Unduly coercive
The idea that the Federal government could implement policy by its “spending power” through attaching conditions to federal grants to the state was a legal fiction created by the Court in the Social Security Act case and other cases to uphold laws that would have failed under any “commerce clause” test. This decision opens the door to the Court to start scrutinizing Acts of Congress that rely on this fiction to invalidate Acts of Congress on grounds just because 5 Justices think it the law is unwise or it offends their political preference. In that sense, I think the decision creates a bad precedent for future meddling by the Court.
Implications
We’ll have to wait for commentators more knowledgeable on constitutional law, but it seems to me that resting the decision on the taxation clause rather than the commerce clause might make it easier for Congress to modify the act by attaching amendments to taxation bills, since bills cutting taxes tend to be politically popular.
except…
under current budget rules, I believe a tax cut can’t increase deficits. (That was the whole reason for the 10 year contortions for the Bush era cuts). So where do the GOPers offset?
Rules
whose?
I guess I was primarily thinking of the Reconciliation process.
I suppose if the GOP runs the table in November, gaining a sure thing 60 vote majority in the Senate, they might be able to repeal. But without a filibuster proof majority in the Senate (and veto proof majorities (Or A President Romney), their only possible hope for now would be reconciliation, and that process can’t increase deficits.
Who Wins?
Insurance companies win!
This goes to show
the folly of predicting what the Supreme Court will do. I thought that either the mandate would be struck down 5-4 along the usual lines, or Roberts and Kennedy would join the four more liberal justices in upholding it on Commerce Clause grounds. It never crossed my mind that Roberts would break with Kennedy and go with Ginsburg, Breyer, Sotomayor and Kagan, nor did I think the case would be decided on the basis of the taxing power. In defense of my own faulty crystal ball, I don’t think any of the professional pundits predicted this result, either.
The fact that four justices voted to strike the law in its entirety only points up what should have been obvious all along: that you can’t have the popular parts of the ACA without the individual mandate. It just doesn’t work economically unless there’s a big pool containing young and healthy people. Some in Congress would have Americans believe that you can have the goodies without the castor oil. The Court recognized that you can’t and it will be harder for politicians to argue plausibly that you can.
What still amazes me is that this was a close question at all. My husband and I go to the American Bar Association convention every August, where one of our can’t-miss events is the annual panel discussion about the Supreme Court term, featuring former Whitewater special prosecutor Kenneth Starr, former Clinton Solicitor General Drew Days, and Stanford law professor Pamela Karlin. These three pretty much span the political spectrum from left to right. All of them predicted that the ACA would be upheld. Ken Starr, no liberal, thought it would be a 9-0 decision.
Conservative Harvard Law professor Charles Fried (Reagan’s Solicitor General) famously promised to eat his hat if the mandate was overturned. He is surely among the very relieved people out there today!
Who won?
Does this mean Tester and Swift “lost” on health care?
🙂
I’m sure they’ll spin it that “Freedom” somehow lost. But yes, they did, but only one battle. There is an even larger one that will be decided in November.
Taxation
The exercise of taxing power isn’t necessarily limited to tax bills.
Reality..Really?
The U.S. debt is approaching imaginary numbers. The result of your reality.
What we can all agree on
Roberts has effectively said: Listen, the one thing we can all agree on is that it is the right of every American to have access to our healthcare system, not just the wealthy, not just the healthy, not just the employed. I just don’t think how Congress ensured this right is very smart. The American people elected these idiots and its not my job to question the American people.
Medicaid
Actually, by letting states opt out of Medicaid, Roberts has potentially limited the access of the poorest Americans to medical care. The need for care doesn’t always end when you leave the emergency room.