Thinking About the Health Law Decision ($1.13)

All the pundits and politicos are giving their opinions as to who won, and who lost, when the Supreme Court upheld virtually all of the Affordable Health Care Act. It’s hard for me to believe that anyone politician won or lost anything as a result of this decision – although my own strong belief is that American society won. But that is a different issue.

The reason that neither the Democrats nor the Republicans won is that the decision was so quirky. The real question is whether or not this quirkiness will affect future Supreme Court decisions. And it might.

The Health Care Act itself has its own share of quirkiness. Hardly “Obamacare”, it is in fact the result of Congressional haggling that had little to do with the President, it contains significant features (such as the individual mandate) which Obama did not even support, it admittedly was voted on by a Congress that did not have a chance to read, or fully understand, the bill, and it was passed by a minimal spread, on an exclusive party line vote.

Although many Democrats speak as if this Act is a state of the art piece of legislation, it clearly isn’t. The Act does not do enough to tackle health care costs, it creates the requirement of extremely complicated “exchange” program that each state must, on its own, create, it does not deal with the problems with paying sufficient fees to physicians who treat Medicare and Medicaid patients and, in some people’s minds – and they may be correct -, it does not help hold down the risks to medical professionals of malpractice litigation.

But it is clearly better than what was there before (with so many uninsured Americans, and health care so dependent upon employment benefits), and hopefully will be permitted to be the basis for more improvements to come (although I have a serious question as to whether different health insurance exchange programs in each state and other jurisdiction will work in our factually unified country). But of course if the Republicans have their way, the entire Act will be repealed by a vote of next year’s (hopefully for them) more conservative Congress.

But what would they replace it with? They don’t say, except that (1) they want the free market to work its magic, (2) they want the government out of the decision making business, and (3) they want citizens to be free to opt out of any health insurance program. They also say that they want to develop a program that will cover everyone, and that they want to concentrate on health care costs, along with making sure that physicians are paid for services at an appropriate level. How they would do this, they don’t say. And, in fact, they can’t say how they would do this, because in fact they have no clue. And why do they have no clue? Because it is impossible to meet their conflicting goals.

The Republicans have long convinced its supporters and many independents that “Obamacare” (which should more properly perhaps be called “Romneycare”) will be more expensive for the American taxpayers. I guess the argument is that if you throw the insurance premiums to be paid by the currently uninsured (obviously, not a governmental cost) or the penalties (or, if you will, the tax) they will pay for refusing to participate, as well as increased Medicaid costs, onto one side of the ledger, they will not offset the costs (to all of us, through raised premiums) of treating the uninsured in hospitals and hospital emergency rooms. That may or may not be true – I have seen estimates in all directions. But the discussion begs the moral imperative of providing health care for all Americans.
And it avoids the clearly important question of why American health costs are higher than anyone else’s, when our health services are, for the most part, no better. The cost issue is the next step. Everyone should recognize that, and I think everyone does. But rather than saying “OK, we now know we have a constitutional law, let’s start attacking the costs”, the Republicans are playing for politics only, saying that their goal is simply repeal of “Obamacare”. How misguided.

Now, when we say that the Health Act is constitutional, we are of course speaking a bit in hyperbole. It is constitutional by a vote of 5-4, based on the Chief Justice’s highly unusual opinion. If Roberts (or any other of the 5 Justices contributing to the majority of the Court) had voted the other way, the Act would have been “unconstitutional”. In effect, one man has decided the constitutionality of this important Act.

But that is the American system, for better or for worse. And let’s look a little at how he made this decision. First (not chronologically in the opinion), he decided that the Commerce Clause would not permit Congress to mandate the purchase of health insurance, even though health insurance clearly affects interstate commerce in innumerable ways. This is because, he says, the Constitution permits Congress to “regulate” commerce, but not to require it, and a “mandate” is in effect a requirement that someone enter commerce, rather than a regulation of someone already participating in the commerce. That everyone participates in the country’s health care system, whether or not they have insurance, does not seem to mean that they are participating in interstate commerce; the interstate commerce in question defined by Chief Justice Roberts very narrowly – it appears to be the commerce of participating in the health insurance industry (although you could clearly argue, it seems to me, that someone who does not purchase health insurance still is participating in the health insurance market because his “non-action” has the effect of raising the insurance rates for all of us who do have health insurance. So, I can’t say that I understand the Chief Justice’s rationale for saying that the Commerce Clause does not authorize the mandate. And I can’t predict how this decision will affect future decisions interpreting the Commerce Clause, if it will. It might affect it greatly, giving the Court the ability to rein in many government actions under a narrower interpretation of the Commerce Clause, something that Conservatives will love.

(As an aside, let’s deal with Justice Scalia’s question at oral argument as to whether Congress could require all Americans to eat broccoli. Pretty dumb, you might think (and I might think), but the argument is understandable: if (a) you can require individuals to to buy health insurance on the Commerce Clause theory that, as I stated above, the non-participant is affecting the premiums of the rest of us, then (b) can’t you require everyone to eat vegetables, because that would make us a healthier country and also affect our insurance premiums.)

Second, having disagreed with the President’s position on the Commerce Clause, he decided that that penalty one will have to pay for failing to acquire insurance is, in fact, a tax being assessed on the non-participant. Although the government apparently raised the possibility that it is a tax somewhere in their briefing of the case, it was clearly the position of Congress that it was not a tax (if only because they knew that Congress would not pass a new tax), and by calling it a tax (under the theory, it appears, that if it walks, talks and quacks like a tax, it is a tax – although whether it walks, talks, and quacks in that way is itself a question), the Chief Justice calls it a tax, and a permitted tax under the Constitution. (This of course creates political issues: did the Democrats vote in a new tax, is the President being deceptive when he said that it wasn’t a tax, does it mean that Romney raised taxes in Massachusetts, etc.)

But, having called it a tax for the purpose of finding it constitutional, Roberts created another problem for himself. Under federal law, the only way you can contest a tax is to, first, pay it, and then challenge it in the U.S. Tax Court. This “tax” does not even have to be paid until 2014 (which I guess means tax returns filed in early 2015). In order to avoid this problem, Roberts concluded that, while the ‘penalty’ is a tax for one purpose, it is not a tax for the other purpose. To me, this is just weird.

There was one important part of the Act, of course, that the Court turned down as not being constitutional. This was the threat, contained in the law, that said that if a state does not agree to support the higher income definitions for Medicaid participants (this being a way to get health insurance for people that can’t afford it on their own, all of which is being paid out of the federal budget and transferred to the states), those states would lose ‘all’ of their Medicaid funding, not just the funding related to the newly eligible. The court said that this was coercive and did not withstand constitutional scrutiny.

This raises two important questions.

First, the Court stated that the Medicaid provisions could continue to be implemented (i.e., the increased Medicaid limits and increased funding from the federal government to support the costs of increased Medicaid eligibility numbers), but that if a state refused to give coverage to these additional individuals, it will not lose its current Medicaid funding. Perhaps this is a good conclusion, but now we have an optional expanded Medicaid expansion program that was never passed by Congress. It was written, instead, by the Supreme Court. If this is not judicial activism, what is?

Secondly, how will this affect other penalties assessed by Congress? The one that comes to my mind is the requirement (it may be legislatively gone now) that in order to get certain transportation funds, the states needed to agree to certain restrictions on speed limits, and needed to raise all drinking ages to 21. This, like the Commerce Clause decision, might limit federal powers in cases to come.

So, did anyone win or lose? Did the Democrats win the battle but possibly lose the war as other decisions come down the pike? And will any of this affect the November election and, if so, what will the effect be? Perhaps this will depend on how successful the Democrats are at explaining why “Obamacare” is not the dangerous act that the Republicans describe and that the Republican descriptions are geared (as Mitch McConnell long ago said) to ensure that Obama is not re-elected, and for no other reason.

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