Conservative Supremes Can Overturn ACA With “All Deliberate Speed”

If conservative Supreme Court justices are determined to overturn the Patient Protection and Affordable Care Act (ACA), then why not look to the Court’s famous ruling on school desegregation for what comes next? Couple the declaration that the signature legislative achievement of the nation’s first black president is unconstitutional with the enforcement urgency that followed Brown v. Board of Education in 1954.

In other words, tell the federal government to dismantle the ACA with “all deliberate speed.” Given the history of how putatively law-and-order Southerners responded, that should give health reform breathing room until at least the middle of the 21st century.

There are similarities between Brown and the ACA case. Both are rooted in controversies over state versus federal power and both, coincidentally, involve Kansas. In Brown, it was the Topeka Board of Education that said the Constitution allowed it to maintain separate schools for whites and blacks. In the ACA, it’s the Kansas state attorney general who has joined with 25 others to say that the Constitution protects state from having to expand the Medicaid program for the poor.

Brown was a landmark ruling that initially prompted little concrete change. When civil rights advocates returned to the Supreme Court in 1955 seeking better enforcement, the Court set a standard of “all deliberate speed” that in effect winked at much deliberate disregard. It wasn’t until 1969, in Alexander vs. Holmes County Board of Education, that the Court ruled that desegregation had to proceed immediately.

Which is why school district land in Holmes County, Miss., was promptly sold to a private group for a nominal sum and quickly became, as in many other parts of the state, the site of a private academy. Jump forward another 40 years, when our son was in the Teach for America program in the county seat in Lexington: there were no white students in the high school and precisely one, tow-haired white child in the middle school.

Proponents of health reform can be inspired by this example. If conservative justices will adhere to the “all deliberate speed” precedent, states which have begun implementing Medicaid expansion, health insurance exchanges and other ACA provisions have at least 15 years to talk about formally unwinding them while figuring out some legal way not to undo them at all. In other states, federal money for health reform might have to be channeled through private sources. Perhaps “charter” hospitals and clinics and “private academy” medical schools?

Since we know that lack of access to health care leads to premature death and disability, this could also be positioned as a right-to-life issue. So, Catholic bishops, here’s the deal: we’ll drop the birth-control and abortion coverage, and you take responsibility for bringing affordable access to medical treatment to every American. With all deliberate speed, of course.

Michael Millenson is a Highland Park, IL-based consultant, a visiting scholar at the Kellogg School of Management and the author of “Demanding Medical Excellence: Doctors and Accountability in the Information Age. This post originally appeared in The Huffington Post.

15 replies »

  1. Please see Switzerland and The Netherlands, which I believe would fit the description of countries that “provide universal health care via government purchase of private insurance” although I wouldn’t quite put it that way.

  2. Great stuff. I’d have to give it a 9.5.

    You can’t be against killing a baby unless you agree to pay for the child’s health care forever. Oppose execution for Ted Bundy or shut up about dismembering a sleeping embryo. If you oppose Obamacare, you’re Jefferson Davis, or Bull Connor.


    the Party of tolerance and nuance and reason and gravitas.

    (How did Hitler get left out of this analogy-fest? Correct that, and get a full 10. )

  3. Please correct me if I am ill informed, but I am not aware of a single country that provides universal health care via government purchase of private insurance for it’s citizens. There is no single model, but often the government owns some of the health care infrastructure and there is a tiered system of public/private options (like Australia). Many of the countries are experiencing their own set problems with their systems (which of course is unavoidable and does not negate the overall positive of each system) which are conveniently ignored by universal proponents over here. By far and away the simplest and cheapest approach here is to extend Medicare part A (or a varient thereof) to all Americans, modify Medicaide to be similar to Medicare part B, and to let the remainder be covered by mechanisms similar to the present day with an emphasis on medical savings accounts for the bulk of the non-poor. This need not be the final solution, but would be a huge step in the right direction and a step that would be much more palatable to the majority of Americans.

  4. Dr. Mike

    Every other developed country in the world provides comprehensive
    care for all of their citizens. If they have enough money to do it, we
    do too— as long as we stop over-paying for everything, and over-treating

    To say it can’t be done–or “we’re different” — reminds me of the argument
    before the Civil War that we just couldn’t afford to abolish slavery: the
    Southern economy depended on it.

    But England and most other countries had abolished slavery long before we did. They could afford to do it, and we could too. (Though of course
    a costly y Civil War was the worst and most expensive way to do it. . .)

  5. Michael, Matthew

    I did realize that the suggestion about hte Catholic chuch was tottaly ironic, but was so intrirgued by the parallel to civil rights legislation (which was not ironic) that I didn’t qutie take in the fact that the title was also, obviouslyl, ironic.

    Matthew– thanks for the link to the fuding for a federal exchange.
    There are, in fact, ways that the federal govt can partner with states
    to hep them set up Exchanges while using the funding that, in many cases, the states have already accepted.

  6. John, given that the US government (including the Supreme Court) doesnt follow the law or the consitution on several matters (try the Drug “War”, undeclared wars in several countries, illegal wiretapping) and as Michael has pointed out, not bothering to enforce laws in favor of the poor and afflicted in education for several decades, why should it be troubled by petty inconsistencies in state exchanges.

    Incidentally you may think PPACA doesnt set up a Federal exchange, but one beltway bandit (GCI) has already been awarded $93m to build it

  7. None of this is exactly news. See Elhuage, 1994, “Allocating Health Care Morally.”

    “We need Universal major medical for all Americans, then lets debate and work out the best way of dealing with the rest.”


  8. Fact: We don’t have enough money to provide comprehensive health insurance to every American.

    Liberal: It doesn’t matter how much it costs, every American deserves health care

    Conservative: It absolutely matters how much it costs, so let the free market determine who gets health care.

    Both are right and both are wrong. And PPACA makes neither happy (if they are honest, which they are not) because it is both expensive and does not provide heatlh care to every American. PPACA sets the bar way too high – cadillac insurance plans that hardly anyone can afford without huge subsidies.

    We need Universal major medical for all Americans, then lets debate and work out the best way of dealing with the rest.

  9. That is the flaw, why should everyone HAVE to get insurance? Just as it is the flaw why everyone should be offered full court press care for any and all issues. Both parties these past 20 or so years are out of touch with the general public, and in the end it is the general public’s fault they have allowed this failed incumbent representation to stay in place.

    Mandates are not a democratic policy. You can argue otherwise until the cows come home to roost (sarcastic ha ha) but nothing good comes from telling everybody to do something.

    Here’s an interesting idea, why don’t House and Senate bipartisan groups get together and get everyone’s feedback in rewriting this legislative effort should Monday’s decision be what it seems to sound likely? Oh yeah, neither party did that in 2009-10. So here is an equally valid idea: don’t reelect the same buffoons who were around then to make the same mistakes in 2013! That is not sarcasm, that is blatant truth!

  10. I understand it’s satire but it makes no sense. Whether or not PPACA is overturned by SCOTUS, the federal government cannot implement exchanges in the absence of states’ collaboration for three reasons: One uncovered by me and two uncovered by Michael Cannon of Cato Institute.

    First, an insurer canot participate in an exchange unless licensed by the state. So, an anti-PPACA state can credibly threaten to pull the license of any carrier that participates in an exchange.

    Second, Sec. Sebelius has effectively unlimited money to grant states to establish exchanges but zero money to establish federal exchanges.

    Third, PPACA does not allow tax credits to flow to individuals in federal exchanges, only state exchanges. Thus, Treasury attempting to do so will result in more lawsuits, in the unfortuate eventuality of SCOTUS upholding PPACA.

    These three facts comprise a mosaic of obstacles preventing exchanges from being imposed on unco-operative states by the U.S. government.

  11. Loath as I am to short-circuit the loathing (or support) this post may inspire, it is satire. Not ha-ha humor. Satire. As in: if law-and-order conservatives in favor of states’ rights managed to keep the law from being enforced for decades with civil rights, these same conservatives can’t possibly object if a Supreme Court rulling against the ACA (which is compassionate, as opposed to segregation, which is the opposite) gets fulfilled REALLY slowly.

    Note the suggestion to turn the whole thing over to the Catholic Church. You know, like “whites only” schools are religious.

    See, this is about hypocrisy. You want to be anti-abortion? Great, but if you call yourself “pro-life,” but never a word about the tens of thousands dying from lack of access to health insurance — or, for that matter, not a word about the death penalty, which the Catholic Church officially opposes — then are you pro-life or just anti-abortion? And if you detest the ACA, but have never, ever, ever proposed a way to cover all Americans with health insurance, then what does that say?

    Do liberals have their hypocrisies? Sure. But the difference is that conservatives these days think they have none. Hence, Jonah Goldberg’s book about cliches that only looks at the opposition.

    Fortunately, those of us who are centrists have no flaws at all.

  12. Michael–

    A very interesting post. Yes, I agree, this is very much like civil rights legislation in that the issue at hand
    is “equal rights”– i.e. does everyone have an equal right to comprehensive health care? Secondly, the passions run very high on each side, and conservative states would like to feel that they can buck the law.

    The difference is this: the ACA is very explicit: if the states do not set up
    Exchanges, the federal government can and will do it for them.
    (I don’t think this will take Federal Marshalls, as it did in the case of
    school desegregation.) The South won’t be able to delay civil rights legislation as it did in the late 50s and early 60s.

    And those who oppose equal rights to healthcare wiill not be able to set up
    the equivalent of private schools. A few doctors will set up expensive concierge practices that don’t take insurance or Medicare. (They won’t be eligible for Medicare if they’re not following the rules of the ACA.) But we know that very, very few doctors are able to keep a concerige practice afloat– there just are not enough patients able and willng to pay out of pocket.
    And no hospital can keep its doors open without Medicare patients– and folowing ACA rules.

    Finally, I don’t think this can be done with “deliberate speed.”

    Health care reform is already rolling forward at a rapid pace.

    Children suffering from
    pre-existing condtiions are getting care. In 2014, adults suffering from
    pre-existing condtitions expect to get care. (The temporary high risk pools that have been set up to help some of them in the meantime will expire in

    Meanwhile, hosptials have already invested huge sums in beginnign to get
    ready for reform. They are counting on the new customers that a mandate wil bring– or else they’re gong to be in trouble.

    (Moody’s has already annouced that if the mandate is overturned, hospitals will be downgraded, along with other parts of the health care industry.

    Since health care is one of the few parts of the economy that is creating jobs, this will a huge problem.

    With our without the mandate, we will have to get more young and healthy people to sign up for insurance in 2014–otherwise it will be unaffordable. As you know, the pool will be crowded with sick people who will finallly have the subsidies they need to buy insurance.

    I think we can persuade milions to sign up—as long as we make them aware of the many ways that the ACA makes insurance attractive. (Many will
    automatically become aware in 2014 as the plan is impemented and they
    find out that preventive care is available without co-pays or a deductible, that insurers must cover all essential benefits, etc.

    Finally, under the law, large employers can automatically enroll all of their employees in a health plan– employees would then have the option of
    dropping out. But past experience shows that when you automaticallly enroll people (in 401ks) most are passive– they don’t opt out, even if you’re taking a contribution out of their checks.

    The IRS hasn’t yet decided to go ahead and implement this, but it’s my
    understanding that they could.

    So, while it would be helpful if the Supremes ruled that any attempts to block
    the ACA move ahead “with deliberate speed” the ACA itself will have
    to move ahead as quickly as it can. (For instance, we need to begin
    bundling payments in as many places as possible– this should make care
    more affordable, and better co-ordinated.)

  13. Wow, and that is all I feel I can write here after being asked to tone it down by the authors of THCB. Posts like this do evoke passion and rebuttal.

    Really, drawing similarities to racism with health care legislation, is the desperation of the Left getting this intense?

  14. There is a huge difference between trying to take down an existing system and implementing a new one. If the ACA is overturned, it will be easy to stop implementation.