Looks like Healthcare will be Affordable after all

by Joseph Markus

The results are in and, as expected, the Supreme Court split 5:4. But it wasn’t the usual ‘liberal’-‘conservative’ division: this time Chief Justice Roberts came over to the liberals, while Associate Justice Kennedy—usually the swing vote—went to the conservatives.

Yesterday’s decision finds the Affordable Care Act “constitutional in part and unconstitutional in part”, while—pointedly—“not express[ing] any opinion on the wisdom of the [Act]”. That particular judgment, thankfully, was “reserved to the people”.

In total, the Opinion of the Court, written by Justice Roberts comes to 59 pages. Alongside Justice Ginsburg’s partially concurring and partially dissenting Opinion (61 pages) and the dissenting Opinion of Justices Scalia, Kennedy, Thomas and Alito (63 pages), it doesn’t make for easy reading.

Perhaps in order to coax Justice Roberts on side, the Opinion is noticeably restrained when it comes to the overriding and critical question of the so-called individual mandate. Rather than seeking to justify the provision under the Commerce Clause or the Necessary and Proper Clause, the Court opted to find the mandate constitutional under the Taxing Clause. Why the Justices took this route will remain an open question, but an educated guess would suggest that the less-liberal-minded on the bench were concerned to limit the precedential weight of the decision as well as to reaffirm a string of case-law that has sought to restrict the scope of, in particular, the Commerce Clause. So it’s illuminating that Justice Thomas, in an extra dissenting Opinion (one clearly wasn’t enough), expresses his support for the Chief Justice’s interpretation of the Commerce Clause (while Justice Ginsburg calls Roberts “stunningly retrogressive”).

The one possibly major upset for the Obama administration was the part of the Act that was found unconstitutional. The Act proposed extending Medicaid to cover those adults with incomes up to 133% of the federal poverty level. The ‘carrot’, for this reform, was the enhanced Medicaid funds that each State would receive. The ‘stick’, and the element of the deal that was ruled unconstitutional, was that the federal government could unilaterally withhold all Medicaid funding should States fail to comply with the extension. Basically, the States were given the option of complying with the requirement or losing up to 10% of their budget.

It’s difficult to determine what impact this will have on the Act in the long run. The individual mandate remains, meaning that those who fail to acquire an insurance policy will still suffer a ‘penalty’ (or, to follow the majority’s reasoning, a ‘tax’).

Interestingly, The Atlantic has reported that over one-in-five people are uninsured in roughly a dozen states, starting with Texas (27.6%), Mississippi (23.5%), Florida (22.9%), Oklahoma (22.1%), California (22%), and Nevada (21.9%). Those are all States that are likely, at least in the short term, to refuse to accept the additional funds to support an extension of Medicaid.

Nancy Pelosi (happy), John Boehner (sad)

In the longer term, however, and in particular following November’s election, it seems more likely that States will gradually come round to the opportunity to expand Medicaid. The most invasive parts of the Act remain and, in continuing to oppose this element, the Republicans that run those States risk painting themselves as ‘anti-poor’—especially in respect of a well-loved policy. They would also risk just looking plain crazy. States are currently liable for the cost when uninsured individuals receive emergency healthcare. Enabling those individuals to receive healthcare through an (initially) federally-supported scheme will save the States money. And what Republican doesn’t want to save money?

Aside from the mild drama of the ambiguous decision, the decision is full of the usual tropes we’ve come to expect from the Supreme Court. There is (at times) poor reasoning (see the Chief Justice’s Opinion) and almost naked ideology (see, as usual, the conservative dissent). This was always a politically-motivated attack by those who had most to gain politically (see, here, the complete reversal of Mitt Romney in respect of the Massachusetts individual mandate and that of all other Congressional Republicans). Why would we expect anything less from the Supremes?

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