Two thoughts in advance of the Supreme Court decision
Can we progressives not attack each other after the decision?
I’m going to be writing more about the ACA and the Court after we hear the decision. But here is one plea in advance of the decision: can we progressives not get in a circle and start shooting at one another? That means, can the single payer folks not lead off with “if Obama only had pushed single payer through Congress we wouldn’t have to worry about the Court today?” Everyone who pays any attention to Congress knows that single payer had no chance in 2009-2010 and it does the progressive cause no good to make up stories about what is politically possible and what is not. More importantly we need to unite against the enemy, which is not the supporters of Obamacare but the corporate conservatives who, if they get their way today, are going to go after Medicare in the Courts (as they have in Congress) and Social Security next.
Those people who say that a rejection of the ACA will lead to single payer need to deal with the reality that the Republican House of Representatives have already voted to eliminate the single payer Medicare system and replace it with vouchers that, in 15 years, will have half the value of Medicare today.
We are facing an onslaught of conservatives determined to roll back the New Deal and more. They are by huge sums of corporate money. The last thing we need in this circumstance is to start fighting among ourselves.
What will the Supreme Court do? Predictions are hard, especially about the future. But here is one guess.
If the Supreme Court follows the law, not politics, then it will allow the ACA to stand entirely. The claim that the mandate is unconstitutional remains absurd on a number of grounds. It is an exercise of the power to tax. And it is also entirely legitimate on the basis of the Commerce Clause. (The claim that accepting the mandate means that there is no limit on federal power is wrong on at least five levels as I explained in a blog post, Why is this mandate different from all other mandates? http://marcstier.com/blog2/?p=6372)
But suppose the Court makes a political decision. (If that’s what they do, I’ll say more about the consequences of doing so for our democracy after the decision.) Then they have three options. All of them are unpalatable politically for Republicans.
1. If they strike the mandate and the regulations that prohibit insurance companies from denying insurance or health care to people with pre-existing medical conditions or charging us more for such insurance, the Court will come under attack from the 85% of Americans who support this law. Thus it will create an extraordinary campaign issue for President Obama. Obama and Democratic Congressional candidates will run against the Court and in support of proposals that are hugely popular. And the ACA—which has not benefitted the President politically as much as it should have because the mandate is unpopular—will now very much be in his favor. The election may not turn on just this one issue. But the odds of the President being reelected will go up.
The political consequences for health care reform of this decision are problematic. The President will move to restore those insurance regulations along with one or more of the plausible replacements for the mandate. But without a majority in the next House and a 60 vote majority in the next Senate it will be very difficult to pass such legislation unless the outrage against the Court is so great that Congress can’t withstand it. I’m not confident that the American people are at the point where they are outraged enough by Republican proposals to generate the heat that forces Congressional Republicans to act.
Another problem for the Court of striking the mandate and the insurance regulations is that the grounds for doing so will be that the insurance regulations won’t work without the mandate. But that is to admit that the mandate is constitutional. After all, there is almost no question that Congress has the right to regulate insurance companies. So if they say that these regulations won’t work without the mandate, they are basically accepting that the mandate is a necessary to implementing these regulations under the Commerce Clause. If they say that the insurance regulations are themselves unconstitutional, the Court will be going so far in radically reinterpreting the Commerce Clause that huge numbers of government regulations, including many that businesses support, will be called into question.
Note that striking down the mandate and insurance regulations still leaves much of Obamacare in place. The remaining portions of the law will expand Medicaid to cover individuals and families with incomes up to 130 percent of the poverty line ($11,170 for an individual and $29,965 for a family of four). The insurance exchanges, which will increase fair competition between insurance companies while allowing individuals and small businesses to purchase insurance at the same rates big businesses receive, will go into effect. Subsidies to make insurance more affordable to individuals and families between 130 and 400% of the federal poverty line family ($44,468 for an individual and $92,200 for a family of four.) Young adults 26 and under will still be able to remain on their parents insurance. Seniors will still see their prescription costs decline. And everyone will benefit from free preventive care.
2. If the court strikes the mandate but not the insurance regulations, the situation for health care policy is better. The insurance companies are going to be extremely upset if the mandate that creates new customers for them are overturned but they still have to provide insurance to everyone and without charging more to those who are older or women. The insurance companies thus may become allies to Democrats who want to find an alternative to the mandate that encourages people to purchase insurance.
The consequence of this second alternative is not as good politically for Democrats. Obama won’t have a huge issue he can take into the election. But Obamacare will be freed of the one proposal that makes it unpopular, the mandate. As a result, President Obama and Democrats will be more likely to talk up the benefits of health care reform in ways that benefit them politically.
3. The third option is to strike the whole law. This has all the political costs to Republicans of striking the insurance provisions and even more, because the expansion of Medicaid and the subsidies for health insurance are also popular.
But the political consequences for health care reform are devastating. The likelihood of Democrats being in a position to enact health care reform and having the courage to do so anytime in the near future is low.
So what will the Court do if it makes a political decision? That depends on whether you think the Republicans on the court are more likely to focus on the partisan politics or the interests of corporations. If they care most about partisan politics, they will choose option 2 and strike the mandate but not the insurance regulations. If they care most about the interest of corporations, they will strike both the mandate and the insurance regulations.
They should leave the whole law alone. But if they make a political decision, I think it will be to strike just the mandate.