For the balance of 2012, health care reform in the United States has to run a political Triple Crown. The Affordable Care Act or ACA, though the term “ObamaCare” is now generally accepted by both sides, is a remarkable beast, but each leg of the race will test its strength and endurance. The first test will be determined by the Supreme Court after oral arguments were heard in March with a decision expected sometime this summer. Then there will be the rhetoric and wrangling of both Presidential and Congressional elections. Finally, after the elections, a showdown is set for December as the deadline to address the nation’s budget and economic future approaches. We’ll focus here on the Court with a quick look at the electoral process and a snapshot of the late year horizon.
It seems somewhat unbelievable that we’ve now contributed nine essays (the August 2011 Herman Cain / Jon Stewart digression didn’t earn a Roman numeral) in an effort to integrate health care policy and politics in a contemporaneous commentary. When we began in late 2009, there was a glimmer of hope that national health care legislation was again on the march. FDR begged off the fight; Truman’s post-war effort had failed. LBJ carried the post-Kennedy legacy to partial victory with Medicare and Medicaid. Carter, George H.W. Bush, and the Clintons had been unable to capture the ring. George W. Bush pushed through an expansion of Medicare coverage of prescription drugs, but left seniors with a giant doughnut hole in the payment structure.
Then came hope and change Barack Obama out of the gate. Our real time observations, insightful or off base, are available to La Cuadra’s readers at lacuadramagazine.com/author/james-tallon.
What we knew in 2009 was that politics, the economy, and grassroots ideology would determine the outcome. Now in the fourth year of this extraordinary process, health care is still being shaped by all three forces. But turning the looking glass upon itself, something more remarkable has happened. In May 2012, health care has become a central vehicle through which a broader struggle for the identity of our still young Republic is being fought.
Too broad an interpretation? Perhaps. But this thing has gotten a lot bigger than we had envisioned.
This commentary begins during three days in early March in the stately setting of the United States Supreme Court. As we’ve explained, the President’s signature on the Affordable Care Act was barely dry when legal challenges emerged on the law’s constitutionality. In summary, after numerous decisions in the District and Appellate Federal Courts, the Supremes structured oral arguments around four basic issues.
First, was it time to decide the case? Day one of questioning seemed to dismiss an argument made neither by the plaintiffs nor the Administration, but was invited by the Court itself. None of the questioning justices (Clarence Thomas remains silent) seemed likely to invoke the Anti-Injunction Act of 1867, which would have delayed a decision on the law’s Constitutionality until 2015, when the penalty paid for not purchasing a mandated insurance policy would first be collected (the mandate is set to go into effect in 2014).
The Anti-Injunction Act, as it has been interpreted in the 20th Century, states that a court cannot prevent a tax from being collected by issuing an injunction, but rather can chose to determine the constitutionality of a tax once it has been levied and order a refund. Lower courts had split on this matter as it regards the ACA, and the court chose to address the conflicting opinions on the issue. Noting the legal complexities involved, Justice Alito made an interesting point to Solicitor General Donald Verrilli. In essence, he noted that today the Administration was arguing that the mandate penalty is not a tax, but tomorrow will be arguing that it is. Though less commented upon in the media coverage, the Court’s decision on this issue may prove to be uniquely interesting.
Any potential for unanimity on the Court was lost in the second-day arguments. Here was the central question, which we’ve explained in earlier essays. Health care is seventeen percent of the national economy, and a broad array of Administration supporters (and more than a handful of opponents), thought that it could be regulated by the Federal Government as commerce that extends well beyond the borders of any individual state. Buying or not buying insurance is just one of the myriad decisions found within our $2.7 trillion health care economy.
But wait a minute, argued a handful of voices on the Right. How can the government regulate an insurance purchase if the individual never makes the purchase in the first place? Could we all be required (cue the special effects) to buy broccoli? The real world argument is nonsense. We all need health care at some point and someone has to pay for it. We never “need” broccoli. Moreover, we can always find broccoli at the store. If you’re sick, you can’t buy health insurance. The Court, however, considers legal argument. Still it was a jolt to hear a political talking point coming from a Justice of the Court.
At the end of day two, observers in the courtroom thought that Justice Kennedy and Chief Justice Roberts had strongly questioned the mandate provision. The three other conservative justices (Scalia, Thomas and Alito) were likely to align with the plaintiffs’ position against the ACA, while the four liberal justices (Sotomayor, Kagan, Bader-Ginsburg and Bryer) would support the Administration. (Maybe this is the point when the lower-case descriptions of the justices’ politics should be openly replaced by the Republican and Democratic labels, ending the illusion of judicial independence. The broccoli argument may finally have exposed a decade-long descent of the Court into an overtly partisan role.)