By the time you read this article, more than a month will have elapsed since the nine justices of our Supreme Court heard oral arguments over three days in what will be looked back upon as historic cases of a generation. The Court will be deciding whether or not the federal healthcare act signed into law in March 2010 -- the Patient Protection and Affordable Care Act (ACA) -- is constitutional. As many commentators and columnists there are who are paid to comment, as many pundits there are who pontificate, and as many scholars there are who analyze every word of every question and every statement made by each of the Justices, so there has been an equal number of opinions. What is the voting public to think or believe, including those members of the Tenth Congressional District Democrats who subscribe to this newsletter?
The best way to characterize what took place at the end of March over those three days and to capture it in sort of a "retrospectoscope" are the words of the famous New York Yankee, Hall-of-Fame catcher Yogi Berra: "It ain't over 'til it's over." Despite what any columnist, writer, pundit, or scholar has said after listening to the oral arguments, the justices' words, demeanor, and verbalization of ideas do not necessarily signal how the Supreme Court will decide the issues -- which they will do no later than the close of its current term on June 30. Given the monumental importance of the issues, what happened during oral argument will be followed up by many further discussions and debate among the justices, and there will even be attempts by one justice to convince another to change his thinking. Because the four "liberal" justices (Ginsburg, Breyer, Sotomayor, and Kagan) seemed convinced that ACA should be the law of the land, all their camp needs to do is to peel off one from the other side. The most likely candidates may be Justice Kennedy or Chief Justice Roberts.
There were four issues before the Court: (1) whether or not an 1867 law, the Anti-Injunction Act, that precludes challenging a tax in a federal court until after it is due and paid, applies; (2) whether the individual mandate (called the "minimum coverage" provision) that requires every person to buy a health policy of insurance or else suffer a money penalty exceeds Congress' authority under the Commerce Clause of our constitution; (3) whether, if this mandate is found to be unconstitutional, all or any part of the remaining portions of ACA could remain (this is called the "severability" issue); and (4) whether the provisions concerning the expansion of Medicaid are unconstitutional because they coerce the states' participation in them in return for the federal government's providing no less than 90 percent of the added costs by 2020 and beyond.
I. Tax or Penalty?
The first issue can be disposed of with dispatch. The Supreme Court will not find that the Anti-Injunction Act blocks its consideration of the other three issues. It will no doubt find the monetary amount that under the ACA must be paid by anyone who does not buy a health insurance policy to be a penalty, and not a tax. This was the position of the government as well as the challengers -- the Court had to appoint outside counsel to argue otherwise.
II. Individual mandate
The main issue before the Court is whether Congress has the power to tell us that we have to purchase a policy of insurance. Those who oppose the mandate claim that never in the history of the Republic has the government forced citizens to purchase a product or service. This contention was echoed during oral argument by Justice Scalia (who queried whether, if the government can force us to purchase a health policy, what would be next, broccoli?), by Chief Justice Roberts (who asked whether the government could mandate that we buy cell phones for emergencies), and by Justice Alito (who asked the same about burial services). But with such questions, the conservative bloc that includes Justice Thomas (who, as is his wont, did not ask a single question during the three days of argument) seems to fail to understand that healthcare, with its financing arm in the U.S., insurance, is unique among markets affecting interstate commerce. The questions also seemed to reflect thinking that is the product of the ideology of those on the right who fail to acknowledge the millions of Americans who cannot access or afford healthcare without the ACA.
Healthcare is unique for the following reasons:
• We all need healthcare, from cradle to grave.
• That need is unpredictable.
• By law, healthcare providers must provide treatment to all in emergencies.
• Paying out of pocket for healthcare is beyond the means of nearly every American;
consequently every American who needs healthcare also needs insurance to pay for it.
• In order to pay for the ACA's benefits (such as guaranteed insurance, including no denial of benefits based on healthcare status, like pre-existing conditions; community rating, which means that no one will be discriminated against based on age or gender; keeping children on parents' policies until age 26; forbidding caps on lifetime coverage; and requiring inclusion in all policies of certain required medical services without cost), the risk of loss must be spread across as large a population as possible. This is the rationale for imposing the individual mandate on everyone. As Justice Ginsburg stated during oral arguments, "If you're going to have insurance, that's how insurance works."
• Since everyone receives some healthcare at some time, unless everyone can pay, cost shifting occurs, and those who are insured and who can afford such services pay for the uninsured.
Those who contest the uniqueness of healthcare and health insurance assert the "slippery slope" argument: if Congress can require everyone to purchase health insurance, then why not food, or cell phones, or automobiles. But the conservative justices are smart enough to realize that this slippery slope argument is merely an excuse. Each of them knows full well that there are many protections afforded citizens that prevent intrusion by the federal government into citizens' personal choices. These include the Due Process Clause of the Fifth Amendment and other provisions of the Constitution. Recall the noted Nancy Cruzan case in which the Court was faced with establishing a standard for terminating life of a person who was on life support. The Court held that due process guaranteed a competent person the right to refuse medical treatment. In line with this thinking is noted Columbia University Law School conservative constitutional law scholar, Henry Paul Monaghan, who writes: "Sustaining the mandate would not give rise to the justices' of boundless federal authority" in the New Republic. The justices must also know that Congress has the authority to regulate both the healthcare market and the insurance market due to their respective impact on interstate commerce. So it is not a question of regulation of a market here; it must be only the method of regulation to which the conservative Justices might object.
Those opposing the mandate invoke individual liberty, claiming, "'Obamacare' is the opposite of freedom. Under Obamacare, the government, not the individual, has freedom" (Santorum, "My plan offers a better way than ObamaRomney Care," USA Today, 4-2-12, p.9A). Why force folks to buy insurance when they do not wish to do so, or do not wish to do so until the need arises, like on the way to the hospital in an ambulance?
But the insurance model does not, and cannot, work this way. Using the broccoli example, as noted economist and Nobel laureate, Paul Krugman, has written, "When people choose not to buy broccoli, they don't make broccoli unavailable to those who want it. But when people don't buy health insurance until they get sick -- which is what happens in the absence of a mandate -- the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable for those who remain." ("Broccoli and Bad faith," NY Times, 4-1-12). An auto dealer is not forced to give a car to every person who needs it so that those of us able to afford one then have to pay for others' cars as well. And, government doesn't force people into the healthcare market; from birth we all are in it, like it or not.
As an alternative to the mandate, could Congress tax citizens to pay for healthcare? There doesn't seem to be any serious question that taxing citizens to pay for government-furnished healthcare is constitutional. Think about Medicare, for example. As quoted in Krugman's piece, Charles Fried, a former solicitor general under Ronald Reagan, has said, "I've never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them."
So where are we left on the mandate? What then if the Supreme Court finds the mandate unconstitutional? Well, taxes could be substituted, as mentioned previously, but that is pure fantasy given the political climate in Congress, even though mandates already exist in the form of payroll tax dollars used to fund Social Security and Medicare. Justice Ginsburg likened our Social Security system to a government old-age annuity that everyone is forced to purchase. "It just seems very strange to me that there's no question we can have a Social Security system [despite] all the people who say [of the ACA's 'individual mandate']: 'I'm being forced to pay for something I don't want.'" And then there was Justice Kennedy, who wondered about Congress having the ability to create a Medicare-type system for the uninsured without any private market intervention.
Social Security and Medicare are not the only existing mandates. There are the federal laws that prohibit group health plans from setting lower or lifetime dollar limits for mental health benefits (1996 Mental Health Parity Act), and those that mandate that health plans offer maternity coverage to pay for at least a 48-hour hospital stay following normal deliveries and 96 hours following a Caesarean section (1996 Newborns' and Mothers' Health Protection Act).
What is thus left if the Supreme Court fails to find the mandate constitutional is that millions more than the 50 million or so Americans now uninsured will find themselves unable to access and afford our healthcare system. What an incredible travesty of social policy this would present if it were to become reality.
If the mandate is tossed out, what parts, if any, of the ACA would remain? The two most closely-aligned provisions to the mandate within the ACA are the guaranteed issue and community rating sections. To reiterate, these provisions bar discrimination in healthcare insurance based on such factors as age and gender; call for benefits such as coverage for preexisting conditions, and certain required medical services; require that children be permitted to remain on their parents' policies until age 26; and prohibit lifetime caps on coverage. Without the mandate, it is unlikely that the insurance industry could still afford guaranteed issue and community rating. In that sense, all three of these provisions of the ACA are integrally-linked. If one falls, they all probably will.
Less certain are the other provisions within this massive act, and it is doubtful that the Court will have any inclination to say exactly what stays and what goes -- that is a determination generally left to the legislative branch of government. Another option would be to throw out the entire ACA, as Justice Scalia seemed predisposed to do with his observation that the mandate is the heart of the legislation and that, without it, nothing could stand. The liberal bloc chose to see it otherwise, since the ACA includes many provisions that are unrelated to the mandate. Besides guaranteed issue and community rating, additional provisions in the ACA include: (1) increased coverage of preventive services; (2) birth control coverage; (3) restrictions on lifetime and annual limits; (4) coverage for children with pre-existing conditions; (5) pre-existing condition insurance plan; (6) no health plan barriers for ob-gyn services; (7) access to out-of-network emergency room services; (8) right to appeal health insurance plan decisions; (9) consumer assistance program; (10) more value for the insurance dollar (80/20 rule (medical loss ratio)); (11) no insurance cancellations for honest mistakes; (12) expanded Medicare coverage (prescription drugs); (13) Indian Health Improvement Act reauthorized; (14) tanning salon tax; and (15) expanded coverage for young adults on their parents' plans. (Hall, K., "Affordable Care Act Would Have Immediate Consequences," Huffington Post, posted 04-03-2012)).
The right thing to do is find the mandate constitutional as a proper exercise of Congress' authority under the Commerce Clause, thus eliminating any need to address severability. There are enough safeguards in place to protect individual liberties from unwarranted intrusions by the government under the Commerce Clause.
IV. Medicaid Provisions
The final issue is whether the ACA's expansion of the Medicaid program is impermissible under the Constitution since states are coerced into participating by accepting federal funds. Several of the conservative justices seemed attracted to this proposition. Justice Sotomayor was astounded, asking how a state could claim to be coerced into voluntarily participating in an expanded Medicaid when it is given a boatload of money by the federal government in return for complying with the terms of the program? Under the ACA, from 2014-2016, the federal government will pick up 100 percent of the states' additional Medicaid costs, scaling down to 90 percent in 2020 and thereafter. Justice Sotomayor posited that the argument that the Medicaid provisions were unconstitutional suggested that the larger any federal program is the less power the federal government has to control the quid pro quo for the money it is providing.
The Medicaid expansion should be upheld.
The implications of these Supreme Court health law cases are so momentous for the times that one should not write the obituary for the mandate just yet. Even apart from the epistemic difficulty with having the new benefits and coverage without a mandate on all citizens to pay for them, a beacon of hope exists that ACA will be found constitutional in all respects. Chief Justice Roberts and/or Justice Kennedy hopefully will realize that to find the mandate unconstitutional will destroy the best possible means -- even knowing some of its provisions need tweaking and further enhancement -- to have millions more Americans than now be able to access and afford healthcare in the United States. After all, if we do not have our health, we have nothing at all. Healthcare should be a right for all, and the ACA is a start in that direction. Concomitantly, wouldn't Chief Justice Roberts want "his" court to be known more for a balanced approach at decision-making going forward, i.e. affirming ACA as the law of the land, in contrast to the Court's opinions in such cases as Bush v. Gore and Citizens United v. FCC? As Dworkin wrote in, "Why the Mandate Is Constitutional: The Real Argument" (New York Review of Books), "These [like] decisions soiled the Supreme Court's reputation and they harmed the nation. We must hope, though perhaps against the evidence, that the Court will not now add to that unfortunate list."
As the title to this piece says, "It ain't over 'til it's over."
This article that I authored originally appeared in Tenth News, the newsletter of the Illinois Tenth Congressional District Democrats, May 2012, Vol. 9, Edition 5, at pp. 9-13. It can be accessed by either going to the website and accessing the May 2012 newsletter, or here. I thank the editors of Tenth News for its publication for those in Illinois' 10th Democratic District to read, though its content also serves a broader audience, including the readership of HuffPost.
Follow Miles J. Zaremski on Twitter: www.twitter.com/@zaremski