The Friday Morning Quarterback

So much is being written about yesterday's Supreme Court decision “upholding” the Affordable Care Act (ACA) that it's hard to gain a clear perspective on the consequences of the decision. One week for now, I may regret most of what I've written here.

Here's the Court's decision. For those interested in just the basics, check out The New York Times' annotated summary. However, I recommend that everyone read Justice Ruth Ginsberg's dissent (which starts after p. 59) in its entirety. It's a masterpiece of clarity and common sense.

In reacting to the decision, I think President Obama hit the right note by refusing to discuss its political implications and focusing on the millions of Americans who are or will become seriously ill who will benefit from the decision. Paul Krugman had a similar reaction.

Let's face it. Regardless of Chief Justice John Roberts' motives, we dodged a bullet here. Just look at the decisions—both good and bad—that were announced this week: the reaffirmation of Citizens' United by striking down Montana's campaign finance reform law, the rejection of mandatory life sentences for juveniles, the upholding of Arizona's right to stop and detain people merely because they appeared to be Hispanic. A conservative, activist Supreme Court has inserted itself into the history of the country with consequences that will be difficult or impossible to reverse. The most important issue in November's presidential election may be its implications for future Supreme Court appointments.

Roberts' denial that the ACA constituted the “regulation of interstate commerce,” when health care accounts for 18% of GDP, is not just absurd. The implications of ruling that people who refuse to buy health insurance are not engaged in interstate commerce because they haven't bought it yet are difficult to foresee. In the past, the commerce clause has been used to justify a variety of labor, public health and safety, and civil rights laws that protect people who are not directly engaged in interstate commerce, but who are indirectly affected by its consequences, i.e., people who live downwind from a source of industrial pollution. These reforms now appear endangered by this decision. Does this mean that corporations may refuse to hire or serve minority applicants because, after all, if they are excluded from participation, they are not engaged in interstate commerce? How will this decision impact Congress's ability to implement a national energy strategy by, for example, requiring people to purchase some of their energy from renewable rather than nonrenewable sources?

One important provision of the ACA that the Supremes failed to uphold was the expansion of Medicaid. Under the ACA, Medicaid was expanded to cover all folks under 65 whose incomes are 133% of the federal poverty level or less. This amounts to about half of the 30 million people who are not now insured, but would be under the ACA. Medicaid is administered by the states, but the federal government agreed to provide 100% of the money for the Medicaid expansion in 2014. This was to be gradually reduced to 90% in 2020. The incentive for states to comply was that, if they refused, the federal government would withhold all their Medicaid funds.

Chief Justice Roberts thought this was too coercive, a “gun to the head” of the states. This is the first time in our history that a state spending requirement has been rejected as too coercive. What other federal requirements will states object to? In 1987, the states were told that all federal highway funds would be withheld unless they agreed to raise the drinking age to 21. Presumably the Roberts court would consider this too coercive. Federal funds for public education are contingent on the states' meeting federal standards. Is that too coercive?  

Will the states implement the Medicaid expansion even though there is no penalty for refusing to do so? The Democrats are optimistic. How can the states justify withholding benefits from poor people that are paid for entirely by the federal government? That's like turning down free money, right? However, just within the last three years, some states have turned down federal stimulus money and even unemployment benefits for their citizens. The Jackasses may have underestimated the extent of some Americans' hostility toward the poor, especially those Americans who mistakenly think that most Medicaid recipients are African-Americans.

If not all states implement the Medicaid expansion, the states in which this coverage is most likely to be denied are those whose citizens have the greatest need for it—states like Alabama, Mississippi, Louisiana and Texas. Although experts are still working out the detailed implications of yesterday's decision, it appears that, because the ACA assumes that the states will implement the Medicaid expansion, most of the people below 133% of the poverty level in any states that refuse to expand Medicaid will also be ineligible for low income subsidies to help them purchase health insurance. What a mess! Health care is far too important to be left to the states.

Finally, let's remember that the ACA is no substitute for a single payer health care system. Even if it is completely implemented, it still leaves 27 million people living in this country uninsured. As presently written, it does little to control either the cost or the quality of our health care. Needless to say, there is still a lot more work to be done.