Saturday, July 07, 2012

Left Side of the Aisle #64 - Part 1


You probably wondered why last week I didn't mention the Supreme Court decision regarding the Affordable Health Care Act, aka Obamacare, aka the Health Insurance Industry Enrichment Act, which certainly was the big domestic news of the week. The reason is simple: The show is recorded on Wednesday and the decision came down on Thursday.

But now I will comment. First, though, I'm not going to re-fight the issue. I will note that by polls taken during the course of the debate, upwards of 20% of the public, over 1/3 of the opponents of the measure, were against the bill because it wasn't good enough, it didn't go far enough in regulating and controlling the insurance companies and drug companies, didn't go far enough toward a single-payer or a national health care system. I was among that 20%. But leave that aside: We have what we have and must make the best of it.

You surely know that SCOTUS upheld law by a margin of 5-4, basically because Chief Justice John Roberts was persuaded that the individual mandate, which requires individuals to have coverage or pay a penalty, could be regarded as a tax rather than as falling under Congress's authority to regulate interstate commerce. So he stood with the four moderate (I will not call them "liberal") justices - Breyer, Kagen, Sotomayor, and Ginsburg - to uphold the law on that basis. (Those four, by the way, agreed it could be seen as a tax but also said they would have upheld it under the Commerce clause.)

There are some odd things here. First odd thing and perhaps the most obvious is make-up of the majority. John Roberts making common cause with those other four is indeed odd. There has been lots of speculation about why. It's possible no one except Roberts knows for sure, but I can't help but speculate that he is having some concern about the legacy of "his" Court. We've had the Rehnquist Court, the Burger Court, the Warren Court, and so on; now we have the Roberts Court. This Supreme Court is all but universally seen as the most divided, the most philosophically riven, (and on our side seen as on the part of the right ideologically-driven) Supreme Court in memory, perhaps in the nation's history. It's just possible that Roberts, knowing that a decision to strike down the law would be seen as (and in fact would be) an ideological one, has begun to think that he doesn't want the image of a completely torn, divided Court to serve as his legacy. Only future decisions can indicate if that is true or not.

Another odd thing: The minority, consisting of four members of the court's reactionary wing - Thomas, Alito, Scalia, and Kennedy, whose reputation as a "moderate" or "middle-of-the-roader" has become quite threadbare - would have tossed out the "entire statute," the entire law, from beginning to end.

What's odd is that in arguing that, the minority argued that even constitutional provisions of the law must be ruled unconstitutional and dumped because "the Act’s other provisions would not have been enacted without" the mandate. That is, they are claiming they know that no part of the bill would have been passed absent the mandate, so even what's lawful must be tossed out, including provisions that had already gone into effect, which clearly do not rely on the mandate as it is not yet in force - all because these four know what bills Congress would or would not have passed under some different set of circumstances.

What's more, they go on to say the law "makes enactment of sensible health-care regulation more difficult." That is, this not the bill they would have passed - the "sensible" bill and how's that for right-wing corporate speak. And then they had the gall to accuse the majority of "vast judicial overreach," that is, in essence, accusing them of being "activist judges" who "legislate from the bench." Just unbelievable.

There's another part of the majority decision which got less initial attention but could have a major impact on those without access to health care but who at least had reason to hope that the bill would change that. The law calls for an expansion of Medicaid, the program designed to provide access to health care to the poor. That expansion would bring an estimated 17 million low-income people into the program.

The Court upheld the expansion but with a critical caveat: They ruled this is a new program, not merely an expansion of an existing one, and therefore the federal government may not threaten the states that don't comply with the expansion with the loss of their existing Medicaid funding. Essentially, the Medicaid expansion is now optional for the states, and a number of them under the reign of right-wing governors or legislatures are already making noises about refusing to participate.

That could leave millions of Americans with low incomes who do not qualify for Medicaid under their states' current policies stuck between a rock and a hard place: between the mandate to have insurance and fact they may not be able to afford it, with the penalty that could entail. Or, just as bad, with low-cost, high-deductible plans that do them no good because while they can afford the premiums, they can't afford the deductibles, leaving them worse off than before.

Some experts think the Medicaid expansion is a minor issue because the federal subsidies and incentives to take part in the expansion are strong enough that, in the words of Wharton School health economist Mark Pauly, "most people don't expect any of them to opt out unless they were ideologically driven." But that, of course, is precisely the point.

Two other things to note before I move on.

One, again, the minority said the Act "makes enactment of sensible health-care regulation more difficult." The whole sentence was:
It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain.
In context of whole law being upheld, that sentence makes no sense.

There was some delay in announcing the decision, and I wondered if there were arguments and negotiations until the last minute - because that statement and the discussion of which it was part would make sense if and only if the minority thought the majority was going to strike down the mandate while leaving the rest of the bill intact. I wonder if until very last minute, the minority didn't know what Roberts was going to argue.

The other issue is "state sovereignty," something also raised in the recent case about Arizona's "papers please" law. This emphasis is based on a view of the federal government as "one of limited powers." Not merely "limited" in the sense that there are limits, but "limited" in the sense of "narrow in scope," the sense, bluntly, of being weak. The Court’s right wing is clearly moving toward - some of them have already embraced - an extreme view of states’ rights of the sort that was one of the precipitating causes of the civil war. This bears close watching.


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