How the Supreme Court upheld Obamacare – and how they wounded it.

Guest blog by Tom Packer

Well I was wrong. I inclined to the belief that at least a part of Obamacare would be struck down and it was not. As I’ve explained in greater detail before there were  two major legal challenges to it. These were the attempt to invalidate the mandate forcing individuals to purchase insurance   and a challenge to the expansion of Medicaid the state run programme providing health insurance for the poor on the grounds it ‘coerced’ the state by taking away existing Medicaid funding if they did not expand the programme . Both legal challenges failed. This has understandably dominated consideration of the ruling and in the short term is the most important effect is that Obamacare stands. However there are a number of important provisos to this ‘big picture’ which nuance this effect.

Firstly the law was very nearly struck down. Four of the nine members of the Supreme Court voted to overturn both provisions – unexpectedly Chief Justice Roberts not justice Kennedy was the ‘defector’ from the conservative block. Moreover they also said that the whole law should be struck down as these key provisions were central to the law. There’s even some evidence that the four were very nearly five. The opinion of the four dissenters is filled with language that suggests they were initially the majority.  For example they refer to ‘the’ dissent (see p 14 here). This suggests that Roberts may have switched because he didn’t want to strike down the whole law.

Roberts’ majority opinion does reject the notion that the power to regulate commerce gives the federal government the power to do so.. In other words the commerce clause can not regulate inactivity. Here Roberts was supported by the four dissenters but not by the four liberals who signed on to upholding the act.  Moreover for the first time a federal-state programme is ruled impermissibly ‘coercive’ of the 50 states. That is because Obamacare uses the threat of losing existing Medicaid federal funding ( about 10% of state budgets) to get the state governments to pass laws expanding Medicaid massively. Since the threat was to 10% of existing state budgets this provides a new minimum for the amount that the federal government can threaten the states with in withdrawn funding if they don’t implement new programmes.  I’m rather surprised by this. I’m even more surprised that Roberts was joined in this by six other judges-including liberals Kagan and Breyer.

However the provisions were nonetheless upheld on various grounds. Firstly Roberts  said the mandate is a tax and so is legitimate (many of his fellow conservatives including the four dissenters demur for this for various reasons some of which are given by Professor Epstein here).  Secondly  he stated that the statute can and should be ‘read’ (one is tempted to say changed)  to say that only the new Medicaid spending is conditional – i.e. states can keep the current  relatively small version of Medicaid if they want they don’t have to expand it.

This has various implications for the law which I think have not got nearly enough attention in the general euphoria/ fury that the statute has been upheld.

Firstly this will probably affect public attitudes. The mandate was already unpopular. Now the Supreme Court has ruled it’s a tax as well. At the very least this can’t help its popularity. Secondly, having the law defined as a tax is also likely to play some role in increasing non compliance – because it suggests (contrary to the wording of the statute) that it’s optional.  How many people who don’t smoke in bars  because it’s illegal would pay a ‘smoking tax’ instead?

It makes resistance by the states a lot easier. Partly this is because as I said they can now refuse to cooperate with the transformation of Medicaid without losing their existing funding .Moreover the mandate is a federal tax not a federal regulation-so state regulations that seek to frustrate it’s effects won’t necessarily be unconstitutional in the they otherwise will be.

The Medicaid ruling is also likely as Avik Roy has pointed out to cause some states to cut back their existing Medicaid plans. They will now no longer lose their federal funding if they do so and other aspects of the law mean those dropped from the programme can join new federal ones. This is likely to add to the cost pressures on the law. 

The ruling could also make attempts to strengthen the law or the federal role in healthcare much harder. The opinion makes a distinction between a tax and a ‘penalty’ which emphasises the existing position that in US Constitutional law a tax can be strong enough to become a penalty for example on p 35-36 where it states ‘It  may  often  be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in  Drexel Furniture.’  (an earlier case overturning a 1920’s  tax as a disguised regulatory  ban) .

 

There’s a decent case from a pro mandate perspective the mandate is not strong enough to ‘work’ (ie healthy people will just pay the fine/ tax). This ruling makes it much harder to tighten it or impose similar mandates with fines. Similarly the Medicaid ruling means it will be a lot harder from now on to push the states into pursuing the healthcare policies the federal government wants.

Also of course there are broader implications for the role of the federal government in American life. Chief Justice Roberts has sought to put (or restore) constitutional restrictions on the federal government while upholding Obamacare.  So for example could new carbon regulations be implemented if the commerce clause continues to get more and more teeth? Could a state run nursery programme be introduced when new spending can’t be so ‘coercive’ ?

However at the very least it is important to note that while the Supreme Court has upheld Obamacare it has done so in a manner which leaves it significantly wounded.

Advertisements

About Julia Manning

Julia Manning is a social entrepreneur, writer, campaigner and commentator. She is based in London and is the founder and Chief Executive of 2020health, an independent, social enterprise Think Tank whose aim is to Make Health Personal. Through networking, technology, research, relationships and campaigning 2020health has influenced opinion and action in fields as diverse as bioethics, alcohol, emerging technologies, fraud, education, consumer technology and vaccination. Julia studied visual science at City University and became a member of the College of Optometrists in 1991. Her career has included being a visiting lecturer at City University, a visiting clinician at the Royal Free Hospital, working with south London Primary Care Trusts and as a Director of the UK Institute of Optometry. She specialised in diabetes (University of Warwick Certificate in Diabetic Care) and founded Julia Manning Eyecare in 2004, a home and prison visiting practice for people with mental and physical disabilities using the latest digital technology, which she sold to Healthcall (now part of Specsavers) in 2009. Experiences of working in the NHS, contributing to policy development, raising two children in the inner-city and standing in the General Election in Bristol in 2005 led to Julia forming 2020health at the end of 2006. Julia is a regular guest on TV and radio shows such as BBC News, ITV’s Daybreak/ GMB, Channel 5 News, BBC 1′s The Big Questions, BBC Radio, LBC and has taken part in debates and contributed to BBC’s Newsnight, Panorama, You and Yours and ITV’s The Week. She is mum to a rugby-mad son, a daughter passionate about Shakespeare, and wife of a comprehensive school assistant head-teacher. She loves gardening, ballet, Zimbabwe, her Westies Skye and Angus, is an honorary research associate at UCL and a Fellow of the RSA.
This entry was posted in Uncategorized and tagged , , , , , , , , . Bookmark the permalink.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s