The third issue before the Court was conditioned on the second. If the mandate is okay, then let’s move forward with the Law. If, however, it is ruled in violation of the Constitution, what else in the ACA should be disallowed? Severability is the legal term. Again, while not specifically brought before the Court by earlier decisions, one argument said that the mandate alone should be at issue. Not embracing that position, the Obama administration argued that the mandate was fully intertwined with two other insurance provisions — those requiring sale to anyone despite preconditions and another requiring common rates for the healthy and the sick. Therefore, if the mandate were overturned, only these narrow provisions should be at issue.
Yet, questioning extended through various approaches and up to elimination of the entire law, including provisions in no way connected to the insurance mandate. A reduction and eventual elimination of Medicare’s prescription drug “doughnut hole” is but one specific example.
Chief Justice Roberts questioned how the Court could determine congressional intent were the law without the important insurance mandate provision. Channeling Republican Eric Cantor’s political debate, Justice Scalia focused on the 2,770-page length of the ACA’s two component bills, actually saying to laughter in the court room, “You really want us to go through these 2,700 pages?” The implication being that it would be wiser, and far easier, for the court to simply declare the entire law unconstitutional and kick the challenge of fixing the problems of health care delivery back into a political system that had repeatedly failed for a century before passage of the ACA.
The final issue heard by the Court was the challenge by twenty-six (mostly Red) states against the ACA provision requiring that in 2014 and beyond, Medicaid eligibility (the joint federal / state program providing health benefits to the poor and disabled) would be set at a uniform national income standard. Henceforth, all persons with incomes below 133% of the federal poverty level, approximately $30,000 annually for a family of four, would be eligible. In many states (think New York) the law approximated current standards, but for other states (think Texas) this provision challenged deeply held societal patterns which had minimized governmental support for those in need. Plaintiff states argued that, despite federal funding of more than 90% of the expansion costs, their fragile budgets couldn’t bear the costs of new enrollment. In reality this debate is about deeper divisions which have long plagued access to the American dream.
Compliance with this uniform standard was to be enforced by the Secretary of Health and Human Services’ ability to withhold (not only expanded, but also existing) Medicaid payments to non-compliant states. While a lengthy series of earlier Medicaid expansions had been upheld by the Court, the plaintiff states argued that the scale of the ACA challenged their sovereignty. The Administration countered that, under law, the Secretary’s power could be applied incrementally, mitigating the challenges of the change, and further that judicial precedent was clearly in their favor. Observers, including one comment by the Chief Justice himself, noted that a ruling against this Medicaid expansion could call into question myriad cases — indeed an entire body of law on federal-state relationships dating back to the New Deal.
We await the decision of the Court, one now likely to define a future far beyond health care. Will the Court revisit the assumptions of federalism developed over the last eighty years? Will the Court say that the federal government can’t require that you buy health insurance, but leave in place the Massachusetts law that imposes the same requirement? Can fifty states, acting alone, regulate health care financing but Washington can’t? Does the vision of the Right seek to diminish the very notion of national authority? Or will the Roberts Court step back from the precipice at which it finds itself?
One way or another, we should know by the end of the summer, right in the middle of the campaign season.
The second leg of the 2012 Health Care Triple Crown is electoral politics. As we suggested earlier in the year — in the Republican battle between Governor Romney and a changing line of pretenders to the non-Romney throne — money, and lots of it, was the likely horse to bet.
A footnote to history’s interpretation of the 2012 Republican primaries will be that for the first time, enabled by the Supreme Court’s Citizens United decision allowing the spending of unlimited sums through SuperPacs, one very rich person can effectively sponsor a candidate for President. For critical weeks, the presence of both Newt Gingrich and Rick Santorum in key state campaigns was enabled by the support of single mega-rich contributors.
But by May, with his multiple financial streams, Romney claimed the nomination, with only Energizer Libertarian Ron Paul still on the stump. To get to this point, Romney had two messages and a tactic. The messages were: “I know the economy and Obama doesn’t,” and “I embrace now (not then, but now) every position of my party’s fundamentalist conservative base.” The tactic was straight forward. When challenged, spend massively to create a negative image of any other candidate. It worked.
We’ve predicted earlier that the similarities between ObamaCare and its Massachusetts uncle, RomneyCare, would diminish the likelihood of health care reform becoming a major focus of the 2012 campaign. On the Republican campaign trail, however, “Repeal ObamaCare!” brings crowds to their feet and, more importantly, is a core component of Republican Congressional campaigns. Given that conservative believers simply have to allow their dislike of the President to trump their genuine doubts about Romney, “Repeal!” may stay center stage after all. Framing this message, of course, will be influenced by the Court’s pending decision.
Candidate Romney will eventually be forced to add a health care plank to his and the party’s platform. His answer to middle class insurance coverage and health care costs will be unfettered competition, across state lines, where individuals get tax preferences and some level of subsidy, to purchase their own coverage. The ideology of the market says it will work. The reality of the federal deficit and the imbalance between disposable personal income and health care costs offer doubt. Answering the question of why an open insurance market would sell coverage to sick people remains a mystery.