What the Court Did, Why, and What it Means for Politics and Health Care Policy

We got very good news from the Supreme Court today. There are no constitutional barriers to the ACA going fully into effect. The exchanges, subsidies for insurance and the expansion of Medicaid will provide affordable insurance for over thirty million people who don’t have it now. Over a hundred million people will be protected from losing their insurance or paying more if they have pre-existing conditions or are older or women. And the provisions already in place—that make preventive care free, that reduce pharmaceutical costs for seniors, that enable people 26 and younger to stay on the insurance of the parents—will remain in place. This is all great news. And it would not have happened without all the hard work you did in support of what became the ACA. That work didn’t stop after the legislation was passed. As I explain more below, the decision today was in no small the product of fear that overturning the ACA would have created a political firestorm. That you kept defending the law, and that Chief Justice Robert knew you would continue to do so, is part of the reason that he backed away from overturning it. There is still more work to be done. As it always has, the fate of health care reform rests in the hands of the American people. They will decide in November whether those who support the law or oppose it should hold public office. And those of us in Pennsylvania will, by our work over the next year, have a huge impact on how well the ACA is implemented in our state. So our work is not yet done. Keep your eyes focused on November. And stay involved with the Pennsylvania Health Access Network, your labor unions if you are member, and other progressive activists to keep the pressure in Pennsylvania. But also take a moment to enjoy the Supreme Court decision today.  You deserve.

Some more or less random thoughts on the Supreme Court decision today.

1. Why it happened. Immediately after the oral argument I said that I thought Chief Justice John Roberts would vote to support the ACA and I thought that Justice William Kenney would do so as well. I’m very glad to be right about one of them. Why did Roberts support the ACA? Ultimately I think it was a partly political decision but one that was more about the standing of the court than about partisan politics. I think Roberts concluded that there is no point in being Chief Justice of a court that is discredited because it widely believe to make decisions for blatantly partisan political reasons. And there might have been a partisan political reason as well. As I pointed out early this morning, the political problems for Republicans of overturning the ACA were greater than those of allowing it to stand. If the court struck down just the mandate but not the regulations that require insurance companies to insure everyone, including those with pre-existing conditions,  at roughly the same rates, the insurance companies would have been damaged and they would have created the pressure we need to enact alternatives to the mandate. But if the mandate and the insurance regulations were overturned, there would have been a firestorm of complaint against the court because over 85% of the public strongly supports the regulations. And Obama’s reelection campaign would have benefitted as a result. Given that choice, the partisan if not ideologically conservative decision was to let the ACA stand. These political calculations only arose because Justice Roberts knew how supporters of the ACA would react if it were overturned. So once again, all of you who worked so hard for the ACA are responsible for saving it today. 2. What difference does this decision make politically? In the short term, the decision will have little political effect. Republicans will be animated by it as they will now think, rightly, that it will take a Romney win to overturn the ACA. Democrats may be emboldened to defend the ACA and talk about all the enormous benefits of it. The one possible bright spot is that the fact that Chief Justice Roberts was the deciding vote in the case may lead people who are undecided or had even opposed the ACA to support it. At any rate, if we do our work, I’m very hopeful that Obama will put out a victory 2012. In 2016 and for the next 20 years, however, once the ACA is fully implemented and everyone see the benefits of it, we’ll run on the benefits provided by Obamacare and we will elections as a result. You know all those white working male class voters we worry about? They are going to be big winners under Obamacare, as will their wives, sisters, and girlfriends. This is the first piece of legislation Democrats have enacted that help working people in a very long time. So, at some point, the Republicans are going to be very sorry they called it Obamacare. 3. Should we worry about the Commerce Clause? I was initially worried because the majority of the court held that the mandate was unconstitutional under the Commerce Clause but accepted it as legitimate under the power to tax. Would that be a step toward narrowing the Commerce Clause? Having read the opinion, I’m not that concerned. Roberts decision with regard to the Commerce Clause was based  the distinction between activity and inactivity and the claim that if the mandate is constitutional there is no limit to federal power. I’ve explained why that argument is wrong here: http://marcstier.com/blog2/?p=6372. But the ruling ultimately will have little effect on future efforts by progressives. After all, health care really is a special case. I can’t think of another area of public policy where a mandate to purchase some other good is either necessary or desirable. We are not about to require people to purchase broccoli. At any rate, if we want to do so, we can always tax people who don’t do so as he Court today said that this was constitutional. They deeper point, however is that precedent doesn’t mean that much anymore. The key thing is having a majority on the Court. That’s another reason we must reelect the President. 4. While we are at, let’s remember to thank Bob Casey, Allyson Schwartz, Chaka Fattah, Bob Brady, Patrick  Murphy, Christopher Carney, Kathy Dahlkemper, Joe Sestak, and Paul Kanjorski for all they did to push the ACA through Congress! 5. More on single payer. There has been some complaint from single payer folks, but not as much as I feared. Good for them. Physicians for a National Health Plan put out a moderate statement. There has been more complaints about the ACA helping insurance companies from the right today than the left. Unfortunately none of them seemed to notice that insurance company stocks dropped substantially today—in some cases by 5%? Why is that? Because the guaranteed issue requirement, the provisions that require insurance companies to spend a minimal percentage of their premiums on health care; the provisions that limit their ability to deny people coverage or care on the basis of pre-existing conditions and that limit how premiums may vary on the basis of age and gender; and the various provisions that require them to provide free preventative health care and free health insurance to children under the age of 26 will gradually reduce health insurance company profits. The insurance companies clearly wanted to preserve the mandate but not the insurance regulations. So they had to argue in court to keep the mandate, which they did so by tying it to the regulations. I believe they hoped that, if the mandate were struck down, so would be the insurance regulations. It’s still the case, however, that insurance companies fought tooth and nail against the ACA. Analysts from all across the political spectrum believe that profits will be driven so low that the insurance companies will eventually leave the market to Accountable Care Organizations and other new, mostly non-profit, entities. Some privae insurance companies have already left. We may see states move to create a public option in part because there is no alternative. For some good analyses of the ACA that support my argument about health insurance companies see Ezekiel J. Emanuel and Jeffrey B. Liebman, http://opinionator.blogs.nytimes.com/2012/01/30/the-end-of-health-insurance-companies/  and Rick Ungar, , http://www.forbes.com/sites/rickungar/2011/12/28/more-proof-that-the-american-for-profit-health-insurance-model-is-doomed. 6. Hospital stocks went up. But if you look at the burden many hospitals have had in dealing with uncompensated care–especially hospitals in rural areas and among the big city hospitals that serve poor people, such as Temple and Einstein—it’s a good thing if they are doing better. If the ACA had been in place 15 years ago, MCP and Northeastern Hospitals in Philadelphia would not have closed.

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