Thursday, June 28, 2012

In Sum, A Day Of Surprises

Today has been a day full of surprises. 

While I thought there was a chance that the health reform law would be upheld, I did not expect it to be due entirely to Chief Justice Roberts's vote.  Justice Kennedy typically is thought of as the Court's moderate, who swings right or left depending on the issue.  Justice Roberts is a conservative.  To see him join the Court's liberal wing, contrary not only to the other conservatives, but also to Justice Kennedy, was not something I expected to see.

And while I thought the individual mandate might be upheld, I did not for a second think that it would be upheld as a valid exercise of Congress's power to impose taxes.  Although this argument was in the Government's briefs, no court had given it more than passing attention.  My surmise is that Justice Roberts could not agree to vote with the liberals to find the mandate constitutional under the Commerce Clause, and so this was a sort of compromise that he could live with.  Certainly, as Justice Ginsburg's opinion (agreeing in part and disagreeing in part with Justice Roberts) so eloquently puts it, the liberal wing of the Court would gladly have upheld the mandate under the Commerce Clause -- and the four dissenters would not have upheld the mandate under any justification.  Had Justice Roberts not found a solution that the liberal wing of the Court could live with, he could not alone have upheld the mandate.  It could have been 4 Justices for, 4 Justices against, and 1 Justice for but for a different reason -- a result that would have caused great chaos as we all tried to understand what that meant.  Justice Roberts was creative and practical in relying on this other ground.

Perhaps most surprising is the decision on the Medicaid expansion, which clearly is not a victory for those of us hoping to reach near-universal coverage.  The Court has NEVER -- not once in the history of America -- struck down a statute that was passed under the Spending Clause.  But here, Chief Justice Roberts, surprisingly joined by liberal Justices Breyer and Kagan, decided that threatening to terminate a state's Medicaid funding if they did not comply with the expansion of Medicaid to cover all adults up to 133 percent of the federal poverty level was coercive.  Before the federal government can force a state to spend its own money -- even a relatively small amount of it since the Medicaid expansion is almost entirely federally funded -- it has to give the states a chance to opt-out.  So the Court upheld the Medicaid expansion, but not the federal government's ability to strip a state of its Medicaid funding if the state chose not to comply.

And so, sadly, there will be states that will opt out, as they now are able to do.  States that are vehemently against health reform -- Mississippi, Arkansas, Florida, Texas -- also have large percentages of uninsured residents, many of whom are below 133 percent of the federal poverty level.  Those people will remain uninsured if those states opt out.  And because Congress anticipated that they would be covered by Medicaid, those folks are not eligible for subsidies, as best I can tell. 

So as always, I end with a plea for your continued vigilance.  If you're in a state where reform was strongly opposed, you need to contact your state legislators and tell them you want them to implement the Medicaid expansion.  Without it, some of the most vulnerable among us will be left uninsured, at least for now. 

Of course, Governor Romney already has pledged to take steps to repeal the law if he is elected President.  So we're not totally out of the woods yet.  It is my fervent hope and belief that, the further along we get into implementation of health reform, the harder it would be to repeal it.  Certainly, once exchanges are up in October 2013 and pre-existing conditions are covered in January 2014, it will be impossible to turn back.  But there could be a time during which Governor Romney is President, both the House and the Senate are comprised of a majority of anti-reformers, when the law could be repealed.  By that time, I don't think anybody other than the outliers who steadfastly believe that the federal government should be slashed drastically will really want to turn back.  But you never know.

After a day of these sorts of huge surprises, we must conclude that anything is possible.  So we have to continue to stand strong to ensure that people with pre-existing conditions finally are treated as equals.  Jennifer

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