Affordable Care Act Upheld
Kari Chisholm
Phew! The Supreme Court has upheld the Affordable Care Act by a 5-4 vote. From the NY Times:
Chief Justice Roberts, the author of the majority opinion, surprised observers by joining the court's four more liberal members in the key finding and becoming the swing vote. Justices Anthony Kennedy, frequently the swing vote, joined three more conservative members in a dissent and read a statement in court that the minority viewed the law as “invalid in its entirety.”
The decision did significantly restrict one major portion of the law: the expansion of Medicaid, the government health-insurance program for low-income and sick people, giving states more flexibility.
More reaction to come. Discuss.
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9:01 a.m.
Jun 28, '12
I know progressives never felt good about this law--a scheme hatched by the heritage Foundation in the 90s. As policy goes, it has myriad weaknesses and will be far less efficient than a single-payer system.
Nevertheless, 30+ million people will have health care as a result of the law. It moves us in the liberal direction and creates an expectation of health coverage--a huge win for progressives. Had the Chief Justice decided against the law--one man!--it would have been catastrophic not only for those 30 million people, but for the cause of liberalism.
This is a big, big win for team blue. (And some of the anguish on the right, like Ben Shapiro's "this is the end of America as we know it; no exaggeration" provides some evidence.)
10:16 a.m.
Jun 30, '12
It isn't perfect. In many ways, it sucks, because it was a big sloppy wet kiss to the insurance industry, solving the health-care insurance access problem by driving everyone into the arms of the insurance companies which are The Problem™.
However. However.
It's not like they get us for nothing. They have had to give up being able to cherry pick us. They have had to submit to rules to be more reasonable. They have had to submit to rules that say they have to give back the money that they use in useless overhead. And other things.
But the biggest thing that this does is enter the right to health-care as a thing of the law, and elevates the topic of access to health care to a thing that can no longer be ignored and put-off by conservatives. They have to play the liberal game now, and that's a good thing.
Someone said to me recently that Social Security wasn't perfect when it first came out, either. Well, it's time to evolve this thing then.
As a friend said to me a couple of days ago, 'promoting the general welfare' has been affirmed by the Court; the Constitution has been found constitutional.
9:07 a.m.
Jun 28, '12
One random comment on Roberts. Heavy is breast that wears the nametag "Chief Justice." This is the Roberts court and, much as the Rehnquist court will forever be defined (and stained) by Bush v Gore, Roberts had to consider his long legacy in ruling on the ACA. (A law I am delighted to call Obamacare.) Voting to uphold a law duly passed by the congress--with a supermajority in the Senate--is not ultimately a risky venture. Overturning it on a 5-4 vote would have been.
10:08 a.m.
Jun 28, '12
Jeff, you are absolutely spot on with both points. I do have to imagine that there was some exuberant happy dancing going on behind White House and Democratic Caucus doors. Gawd knows I am feeling festive!
10:12 a.m.
Jun 28, '12
This is a big win for all of us who believe we're in this together. Winners include the uninsured who now have a clear path to coverage and the insured who get to maintain the protections in the Affordable Care Act such as the prohibition against discrimination for pre-existing conditions and coverage of children up to age 26.
11:13 a.m.
Jun 28, '12
Good news for everyone who believes government should side with the common good. Good news for my sister-in-law recovering from cancer. She will never be excluded again. For me, and the expanded drug coverage under Medicare for all seniors, for my nieces who receive health care from my brother's insurance as young adults. The court rules that increasing taxation to expand govt. provided health care is constitutional. Meaning Medicare for all is on the table.
11:33 a.m.
Jun 28, '12
Roberts pretty much left the Commerce Clause untouched, even while saying it did not provide a basis for the ACA (Note to FreedomWorks: NO ONE found the ACA to be unconstitutional under the Commerce Clause, only that it was not EMPOWERED, which is why it survives under the taxing power). Wickard v. Filburn lives. Ginsburg did a marvelous job of making clear that the market is healthcare, not insurance, which is why this is NOT compelling people not to abstain, but regulating their choices that they ARE making in the more broadly defined market. Congratulations, America. You're finally joining the league of industrialized nations in undertsanding that the right to life and liberty implies the right to stay healthy.
11:57 a.m.
Jun 28, '12
Marc, I'm a bit worried about that commerce clause issue. This is a really interesting analysis of how we may have only won the first battle on this one. (Fortunately for our team, it was a HUGE battle.)
11:46 a.m.
Jun 28, '12
Chuck, the path is not clear. Apart from the exclusion of undocumented persons, the overturning of mandatory Medicaid expansion is going to leave a lot of people uninsured and mean others only get it under very difficult terms they can't easily afford even with the subsidies in the Exchanges. It also is going to ramp up the costs of the subsidies and put them under even stronger political pressure. Even in states like Oregon that should opt in there are going to be politics about our state budget indirectly subsidizing those of Medicaid opt-out states. The Medicaid cut is a severe blow to the stability of the whole structure of the ACA and a setback to its already inadequate provisions to move to universal access and ending rationing by ability to pay.
There is much to be glad of nonetheless, but the Medicaid decision is bad and its consequences need to be faced, along with the struggles it sets up.
12:01 p.m.
Jun 28, '12
Chris, I agree this is a concern. I'm not convinced states will opt out, though. It could be that none or only a few outliers have the hardcore rightwing support to pull that off.
Anyone know whether a state, having opted out, can later opt back in and receive federal dollars? That would make it even more likely that eventually all states participate.
1:27 p.m.
Jun 28, '12
Don't see why not on opting back in.
I hope you are right, but the fact that 26 states signed on to the challenge worries me from the health perspective of people who may be delayed in getting access (and what if people go into the exchanges and then their state changes its collective mind and they may have to give up something they now like?).
Politically I think this could actually be good for the DP, if the leaders have the courage to fight for it. Big if, of course. But it feels [censored by BO] to be calculating political advantage gained from harm to low income vulnerable people.
1:39 p.m.
Jun 28, '12
Here's how I read it: getting the whole law tossed out and opting out of existing law have different political consequences. A GOP governor pays no political price for signing on to the suit that gets the bill tossed. (Indeed, there's a political upside.)
But turning down dollars is different. For one, governors know that they still have to eat the health costs one way or another. They know that taxpayers are picking up the tab. More importantly, they will have to contend with the reality that in neighboring states, low-income citizens are getting subsidized health care.
Fire-breathers on the right will demand it, but there are a number of reasons legislatures and governors are going to be reluctant to agree.
6:24 p.m.
Jun 28, '12
Chris, if states opted out of the medicaid expansion I don't think there would be subsidization across states. Exchange subsidies have an income floor. People below that were intended to be covered by Medicaid, not the exchange.
People in that gap would likely remain uninsured, watching people who made more money get federal subsidies for their insurance.
11:56 a.m.
Jun 28, '12
I give Roberts props. He reached to an interesting precedent, which says that "'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,' Hooper v. California, 155 U. S. 648, 657," so that "the question is whether it is 'fairly possible' to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32," to frame the issue of whether the penalty for not buying insurance is a tax (or by implication, the non-penalty for purchase of insurance really a tax expenditure/subsidy comparable to non-taxation of employer health benefits).
Personally I think what he upheld is a poor and ineffective policy approach, but in terms of how the S.C. should approach legislation, his reasoning and deferral on the policy issue makes sense to me.
The attitude reflected is one of judicial reasonableness. I hope it gets extended.
12:26 p.m.
Jun 28, '12
Will be interesting political consequences if red states deny coverage under expanded Medicaid out of spite. I can't imagine that plays well. Politically speaking upholding ACA creates a new expectation in the public consciousness that government is the guarantor of a basic service that no one can do without, health care. It rises to the status of at least police protection, fire protection, or roads, or disability income. It is an important step forward, not the full solution, but an important step. The purity people will never be satisified of course.
12:33 p.m.
Jun 28, '12
Regarding legal precedent...... Does it really matter any more, since the GOPers on this court are clearly ready to discard precedent of any sort? Roe v Wade and the Voting Rights Act are coming up in the next term and may be gone by this time next year. What seems to matter is the current make-up of the court, and not what went before. The next president may appoint as many as four current members who are in their 70s. All the more reason why we need to re-elect President Obama and a Dem after him. We cannot count on any future judicial restraint from Roberts.
12:41 p.m.
Jun 28, '12
Rich Rhode from Oregon Action sent a message after the Supreme Court ruling.
"Celebration of the Supreme Court Health Care victory today at Vogel Plaza at 2 pm in Medford."
We have the most expensive health care in the world and rank 37th in the world for quality health care.
Perhaps this will curb the excesses of some private insurance companies. We can expect a reduction in fraudulent billing.
The most important victory is that the Dr. and patient will be back together. The obstacle, private insurance companies, has been removed between the doctor and the patient.
440,000 uninsured Oregonians will benefit from the ruling. There is much to celebate today. We have a safety net now for people who have been financially wiped out by huge hospital bills.
1:31 p.m.
Jun 28, '12
Paulie, I wish you were right about Dr. & patient. I agree that some obstacles will be reduced.
However, most employment aged people will continue to get insurance through their employer, and if your doc isn't "in network" in your employer's plan(s) you may get cut off (this has happened to me). The same dynamic arises with the CCOs under OHP/Medicaid, not new, but probably expanded now.
But there are real gains on this.
12:50 p.m.
Jun 28, '12
All-
Rarely do I comment on BlueOregon, but I am a frequent reader and I enjoy your thoughts.
I feel compelled to make two points, if you will allow. First, the Chief justice's opinion is a perfect example of how a judge is supposed to act. Clearly the Chief justice is opposed to the Health Care law, but he made it clear at the outset of his opinion that it is not for the courts to decide on whether a public policy is a good idea or not. That is how a judge is supposed to act. I wish all judges held to that principle, the public would hold a much higher opinion of the courts, judges, and the legal profession as a whole.
Second, the decision (and especially Justice Ginsberg's opinion) is Exhibit A as to why Senator Wyden is right on health care (yes, you are reading this correctly). Senator Wyden argues for lifting the ban on selling health insurance across state lines. And he couldn't be more right. Justice Ginsberg's opinion underscores the fact that theree exists a marketplace of health care. As a free market guy, assuming Justice Ginsberg is correct, then the marketplace should be opened up and competition should be allowed to reign.
One last thing (I know, I said only two points, but I am a lawyer after all), the argument that the individual mandate somehow changes health care policy is curious. We have had mandatory health care for years - it is called the emergency room. Perhaps (although I don't pretend to know) the ACA will force those who don't have health care to finally pay for it, while giving the rest of us a bit of a break.
Thanks for "listening".
2:10 p.m.
Jun 28, '12
A fair minded post, Ross. But let's not pretend that emergency rooms provide medical treatment for cancer or any other ongoing condition, or that it doesn't lead to medical bankruptcies. It is just that, emergency treatment. Period.
The record in MA under Romneycare indicates that something approaching universal coverage can happen under this scheme, and premium costs are held down considerably. Of course Romney's tax penalties are twice that of Obamacare.
We now have a crazy situation where the original author of nationwide Romneycare is pretending he is not the author of it, and running to repeal it, even though it is quite successful and Romney himself was promoting it for the entire country a mere two years ago.
2:29 p.m.
Jun 28, '12
Bill-
I agree with your point about emergency rooms. Fair point....
Ross
2:35 p.m.
Jun 28, '12
For me, this decision, above all and in spite of all the negative energy from Republicans, reaffirms that as Americans we can, we really can, do big important things. Leadership helps. Thinking big and bold helps. We have other big challenges before us. Forget those nay-saying, small-minded Republicans. America's best years are yet to come. Let's as Democrats step up to the challenges.
9:18 p.m.
Jun 28, '12
Thank you, David, for this elegant statement. And thank you, Ross, for your magnanimous participation.
10:18 a.m.
Jun 30, '12
Anyone wonder what Affordable Care Cat has to say about this?
Go to http://affordablecarecat.com and find out. LOLs ensue.