Thursday, June 28, 2012

Thoughts On The Supremes and Obamacare

Despite CNN and Fox News getting it wrong so spectacularly, most of the media got it right: The US Supreme Court ruled today, in a typical 5-4 decision, that President Obama's signature legislation, the Affordable Care Act, is fully constitutional. 

In a complicated decision written by Chief Justice John Roberts, the court held that the individual mandate, which requires all Americans to purchase healthcare insurance or pay a penalty, did not violate the Constitution if viewed as a kind of tax.  Congress has broad taxation authority and this is where Roberts hung his robe.  He did not agree with the Obama administration's argument that the federal government had authority to regulate insterstate commerce in this way, but bought the "backup" argument.  As they say in sports parlance, "A Win is a Win."

What this means is that millions of Americans who were unable to purchase health insurance, due to pre-existing conditions or other exclusionary criteria, will now be able to purchase it.  And those who elect not to will be forced to pay this penalty (which is far, far less than the amount one would pay for an annual premium).  As the linchpin for the program, the mandate makes sure that those who opt out of insurance are still going to have to foot part of the bill for those who would have been priced out.  This is how the insurance industry works anyway; healthier individuals who have lower premiums and don't ordinarily use health services offset the cost of individuals who consume more healthcare and pay premiums that never equal what they get in benefits.  The payment of this penalty is handled through the IRS, so enforcement exists.  Those who refuse, for whatever reason, either to purchase insurance or pay the penalty run the risk of fines and/or arrest.

Also, the ACA had a provision for Medicaid expansion that, on its face, is a bigger deal than the mandate.  States would have faced a cut-off of all Medicaid funding if they opted out of the ACA's insurance exchange.  The justices, including Roberts, held that the federal government could not cut off all funding, but could withhold new funds if states declined to participate.  This will certainly happen, as Tea Party-supported governors and elected officials will cry foul at the draconian, socialistic, government-run death panels that decide who lives and who dies.

The interesting this here is that Roberts, for the second time this week, has sided with the court's liberals on huge legal issues.  First, on the Arizona immigration law, then today on ACA.  There are lots of commenters out there with opinions on this, and I invite you to do some searching to find them.  I won't link to them here, but there is a LOT out there to see. 

Andrew Sullivan did, however, post a reader's email that speculated on what might have happened behind the scenes during the court's deliberations.  Apparently, Justice Scalia's opinion might originally have been a majority opinion, as it cite's "Ginsburg's dissent."  The suggestion is that Roberts jumped ship from the majority for some reason and joined the liberals, effectively changing history.

What this means for Obama is anyone's guess.  Republicans will cry that the president is raising taxes on the middle class (true for those who do not purchase health insurance), but in truth, how many middle class Americans who do not have health insurance don't want it?  Perhaps some younger people, but those who are under age 26 can stay on their parents' policy under ACA.  Those who are older will more than likely need health insurance in the future if they decide to raise families.  So in the end, it's pretty much a paper tiger issue.  The GOP will try to repeal the law, and that's exactly what Boehner is vowing to do (so is Romney, but more on that in a minute).  But they need a filibuster-proof Senate to do that, which, regardless of the outcome in November, is unlikely.

As for Romney, this ruling eviscerates a major campaign issue for him.  Now he is going to have to run against his own healthcare law in Massachusetts, which he had earlier said was fine on the state level but was unconstitutional at the federal level.  Now that a conservative, Bush-appointed Chief Justice has written the majority opinion negating Romney's chief argument, he's put in yet another difficult bind, running against the Supreme Court as legislating from the bench.  But, as it turns out, Roberts has done very little legislating from the bench, and is on record during his confirmation hearings as being firmly against such behavior.  Perhaps this is why he sided with the liberals and took the lightest approach possible.  There is historical precedent for federally-derived individual health-care mandates.

Gonna be a great summer!