Personally, I am delighted that Chief Justice Roberts voted to uphold the Affordable Care Act. But, I am troubled that the fate of U.S. healthcare turned on one man’s opinion. This is not how things are supposed to work in a democracy.
Healthcare represents 16 percent of our economy. It touches all of our lives. If we don’t like the laws our elected representatives pass, we can vote them out of office. The Supreme Court, on the other hand, doesn’t have to worry whether its decisions reflect the will of the people. The Justices are appointed for life. This is why they are not charged with setting public policy.
How then, did the Court wind up with the power to affirm or overturn the ACA?
The media shapes our expectations
As I suggested when oral arguments began back in March, a “media narrative” drove the case to the Court – a fiction that caught on, in the press, on television, and in the blogosphere, where it began to take on a reality of its own. A handful of “state attorneys general and governors” saw “a political opportunity” and floated the idea that the law might be unconstitutional. The media picked up the story, repeated the heated rhetoric, and “fanned the flames … Before long, what constitutional experts thought was a non-story became a Supreme Court case.”
These media narratives are based on what “that those in power and in the media have concluded is likely to happen,” observes Lyle Denniston, known by some as the Dean of Supreme Court reporters.
Writing on Scotusblog.com, he observes: “One ‘narrative’ about the health care law began building up in Washington, and perhaps beyond, right after the Supreme Court held its hearings in late March. The mandate, it was said, was going to be struck down, the government’s lawyer had blown it, and the President was going to be deeply wounded politically over the loss of his treasured domestic initiative.” Some media outlets were so persuaded by their own myth-making that initially, they reported that the Court had ruled against reform!
Denniston explains that once the story goes viral, the conventional wisdom is then repeated, over and over, until “often, it seems, such ‘narratives’ become self-fulfilling.”
He then points a “currently prevailing ‘narrative’ that most of the country is stubbornly committed to the Tea Party’s wish to limit the power of the federal government.” The facts contradict the fiction: Tea Party Candidates have been “losing steam” in recent elections.
In April, a WashingtonPost/ABC poll revealed that support for the Tea Party among young adults had plunged to 31 percent – down from 52 percent in the fall 2011. Half of those polled said that the more they heard about the Tea Party, the less they liked it.
Tea Partiers claims that the Court’s decision invigorated its base, but offer little evidence. As I reported on HealthBeat last week, polling suggested that the ruling lifted support for reform among Independents, while having little effect on Republicans.
Media props up Governors’ threat to thwart ACA
Nevertheless, belief in the Tea Party’ grip on the country is now leading many to suggest that because far- right conservatives “hate the poor,” some states will turn down federal funding to expand Medicaid.
I doubt it. The money is too good. The Federal government would cover the entire cost for the first three years, 90 percent thereafter. Over eight years (2014-22) the Center on Budget Policy and Priorities calculates that state spending on Medicaid spending would increase by only 2.8 percent.
Moreover, as former CBO director Peter Orzag pointed out yesterday on Bloomberg, Medicaid expansion will reduce others state costs: “As the number of uninsured decreases, so does the cost of uncompensated care. In 2008, state and local governments paid roughly 20 percent of the hospital costs for uninsured people, according to an Urban Institute Study.”
Tea Party Governors may threaten to opt out, but The Incidental Economist’s Aaron Carroll observes they will “face enormous pressure from doctors, hospitals, pharma, etc.” who now provide billions of dollars worth of uncompensated care. “They have pretty good lobbying groups,” he adds.
And Medicaid dollars would translate into new jobs for hospital and lab workers – something state legislators cannot ignore.
But “that won’t stop the media from breathlessly covering the [governors’] threats as reality” Carroll notes. “The ‘battle’ will likely sell a lot of advertising.” There, he puts his finger on why even moderate to liberal publications repeat the conservatives’ fictions: the image of a governor shaking his fist at Washington sells newspapers.
Keep in mind these governors are not all-powerful. State legislatures will have a say. And, while the Tea Party Tide swept many candidates into office in 2010, some will be swept out in coming elections.
Commenting on upcoming gubernatorial races, healthcare economist Len Nichols recently told Kaiser Health News “Medicaid will be an issue anywhere Democrats have a chance to win,” He named West Virginia, North Carolina, Washington state and possibly Missouri.”
The Supreme Court’s decision buys time
Now, the power to make a decision about health reform is back where it should be – in the hands of the American people. In November, they will vote.
Ironically, the Supreme Court challenge may have put them in a better position to vote in their own self interest. When the case went to the Court, a dreary policy debate turned into a contest that piqued our interest. Americans like spectator sports: Who will win? Who will lose?
Thanks to the publicity, some learned that the Affordable Care Act’s mandate will apply only to Americans who don’t have employer-based insurance, Medicaid or Medicare. And while that relatively small group will be subject to a penalty if they don’t buy insurance, they also will be eligible for a subsidy if they do.
Last week, the Christian Science Monitor offered a quick lesson in How the Supreme Court Ruling Affects Families. Consider a “family of four, headed by a 45-year-old, with an income of $60,000″ purchasing their own insurance. In 2014, they “would reap a tax subsidy of $9,308.”
If they didn’t buy insurance, in 2014 they would pay a penalty of $285. In the first year of reform, the penalty for a family that chooses not to purchase insurance will be $285, or 1 percent of their income, whichever is greater. In 2016, the penalty for a family peaks at $2,085, or 2½ percent of their income, whichever is greater. Alternatively, CSM’s family of four could purchase a policy and receive a subsidy of more than $9,000.
Suddenly health reform doesn’t sound so scary. To find out how large a tax credit you would be likely to receive if your employer doesn’t offer health benefits and you find yourself shopping for your own insurance, check out the Kaiser Family Foundation’s subsidy calculator.
Subsidies vary according to your age, your income, the size of your family and whether the cost of health care in your region is higher than average, average, or below average.
The Supreme Court has ruled that the ACA is legal. I hope that in the months ahead, as we approach the November election, more and more journalists and bloggers will follow CSM’s example, and focus on the concrete details of the ACA.
Too often the media broadcasts Tea Party fantasies that turn out to be false. Now, voters want to know the truth: “What would the ACA mean for me?”
Maggie Mahar is an author and financial journalist who has written extensively about the American health care system. Her book, Money-Driven Medicine: The Real Reason Health Care Costs So Much, was the inspiration for the documentary, Money Driven Medicine. She is a prolific blogger, writing most recently for TIME’s Moneyland. Previously she wrote and edited the Health Beat blog for the progressive think tank, The Century Foundation. Previous work for the Health Insurance Resource Center includesWill the Supreme Court strike down health reform? She also recently provided background on Congressional health care legislation for HealthReformVotes.org, a special project of the Health Insurance Resource Center. This post first appeared at healthinsurance.org
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great point. personally, i think all cases that get to the SCOTUS have good merit/arguments on both sides. that “survey” taken of constitutional scholars was greatly flawed….only a small % of scholars responded. not very scientific with regards to samples/results.
one thing that proponents of the mandate under the Commerce Clause don’t seem to understand is that the Commerce Clause has not been used to the extent of making people do something as opposed to keeping people from doing things. yes, it has been used in past precedents to greatly increase federal powers to do many things….but not to the extent the ACA was trying to achieve.
if politics influenced any part of Roberts’ decision, it’s pretty obvious after reading the scathing dissent opinion, that politics influenced him to uphold the ACA mandate. i mean, he basically upheld a law that wasn’t presented to him….Congress clearly intended the penalty to not be a “tax” and specifically removed all labeling of it as such in the wording of the law prior to bringing up the final version on the floor. i understand that Roberts thought the mandate would be ok under the taxing power of Congress….but then he should’ve sent it back to them re-write and pass it as such(not re-write it himself)!
I’m really getting confused by your argument.
1. Constitutional scholars were also surprised at the Medicaid decision. They did not think it likely the challenge would succeed at all given existing precedent.
2. Are you suggesting that there is a “constitutional scholar” test that has to be passed before the Supreme Court hears a constitutional challenge to statute? If so, they should not have heard the Medicaid challenge.
3. Normally, the Court accepts a case when, as happened here, there are conflicting lower Federal Court decisions on significant Constitutional issues. What would have been bizarre here was if the Supreme Court refused to hear the Commerce Clause challenge.
Maggie, you are splitting hairs. Supreme Court rulings absolutely set public policy; Roe v Wade, Voting rights, education, Obamacare, etc., etc. And yes the Supreme Court is/can be/will be political – Dred Scott (maybe the worst).
If it is not political why do we prejudge decisions based on whether justices are conservative/liberal and why is there so much political fighting over an appointment. The Constitution is an interpretive document and so open to all sorts of opinion and bias. I’m not sure we would want it any other way as life is not black & white issues.
Mark–
Constitutional scholars say that there was no basis in the constsitution for the
Commerce clause challenge (See my reply to Peter & Bill, July 18).
Regarding Medicaid, there is a good constitutional argument to be made that
the federal government was overstepping it power by threatening to
take away existing Medicaid funding if a state turned down new funding.
There is no precedent for this.
Peter 1 and Bill Springer-
In a democracy public pollicy is not supposed to be set, in stone by 9 men and women. They are elected for life. No one (not the presdient and not Congreses) has the power to overule them.
This is why the Supreme Court’s power is limited to deciding constitutional issues.
As I indicated to Bill, constitutional scholars agreed that there was no constitutional basis for the challenge.
As I wrote recent on HealthBeat, before the case went to the Court,
“The vast majority of constitutional scholars (including conservatives) had publicly declared that the Affordable Care Act was constitutional. But while a June Bloomberg survey of professors who teach constitutional law at top-rated laws schools revealed than over 85% said that if the justices followed legal precedent, they would uphold the legislation, nearly two-thirds feared that the Supremes would let ideology trump the issues: “politics would play too big a role in their decision.”
“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”
“Yale Law School professor Charles Fried, who represented Republican President Ronald Reagan’s administration at the Supreme Court as U.S. solicitor general from 1985 to 1989, agreed: “It’s become just a very partisan battle cry on behalf of an argument which a few years ago was thought to be completely bogus. For objective observers on all sides, this was thought to be a lousy argument and the only people who were making it were sort of the wing nuts.”
“The fact is that this is “a high-profile, enormously controversial and politically salient case — to have it decided by the narrowest majority with a party-line split looks very bad, it looks like the court is simply an arm of one political party,” University of Chicago Law Professor Dennis Hutchinson told Bloomberg. “We believe in something called the rule of law,” he added. “That’s why we have faith in courts, that they’re not just another arm of a political party.”
“The bottom line: if five justices had struck down President Obama’s signature achievement, just a few months before a close presidential election, liberals would not have been the only ones to cry “Foul!” Both the public and constitutional experts would have seen the decision as blatantly political.”
If the Supreme court had made a “balantly political” decision, striking down all or part of the ACA, based on a “lousy argument being made primarily by
wingnuts” that ignored legal “precedent” on what the constitution says, that
ruling woulld have set public policy.–for many, many years.
The only way to overturn the court’s decision would be if Congress wrote a new ACA, changing the word “penalty” to “tax,” –but practically speaking this would never happen.
Passing a huge complicated bill is hard enough; passing it twice very, very unlikely.
This is why the Court’s powers are limited. .
This is all about “separation of powers”.
Our elected represntatives have the powewr to create public poicy– which an elected presdient may veto, but if they have enough votes they can overrule his veto. (balancing power between Congress & the President)
Can you think of a major piece of legislation that has passed by only 5 votes?
No.
And if major legislation passed by a narrow margin (say 20 votes) within two
years time enough Represenatives could be voted out of office and replaced
to undo the legislation that voters didn’t like.
Bill–
Yes, the Supreme Court is charged with ruling on t eh constitutionality of a law. But when their is no constitutional basis for the challenge, the Supreme Court is not supposed to rule on whether it likes the law–or revise the law.
I say “no constitutional basis for the challenge” because this is what the vast
majority of constitutional scholars– conservatives as well as liberals —
said from the beginning.
Constitutional scholars also say that this case will have little effect on
how the Commerce Clause is applied. See for example ”
The Commerce Clause Confusion
posted by Gerard Magliocca
“There is a fair amount of hyperventilating going on about what the Court said on the action/inaction distinction in the Commerce Clause. I think, though, that this discussion is missing the boat.
The fact is that Chief Justice Roberts’ dicta about commerce will have little or no significance. First, it is unlikely that Congress will attempt to regulate commercial inaction again anytime soon. Second, if it does it can structure it as a tax in a manner identical to the individual mandate. Third, no other federal statute enacted pursuant to the Commerce Clause purports to regulate inaction.
It seems to me that the more important point is that Lopez and Morrison are now settled law. Justice Ginsburg, who dissented in both of those cases, cited them in her dissent to ward off the argument that the Commerce Clause lacks any internal limit. This move probably ends the thought, which was present in the Lopez and Morrison dissents, that those cases are vulnerable to being overruled.”
“…healthcare turned on one man’s opinion.This is not how things are supposed to work in a democracy.”
The vote was not by one person, it was by 5-4. You may also lament that congressional majorities get their way (at least temporarily), or that one vote by a president can veto legislation. It’s ugly but voters will have to eventually live by their votes or lack of votes. Most people complain but don’t take action, that includes black people who support Obama but are too lazy to vote for him.
There is a long history of the US Supreme Court being asked to rule on the constitutionality of social insurance and entitlement programs, given that these were not explicity included in the US Constitution as powers granted to the Federal Government. FDR went through a similar challenge to Social Security and welfare during the 1930’s.
There is no question that if one or more states passed legislation akin to the PPACA, e.g., the Massachusetts health reform law, that it would withstand court scrutiny. There is a long history of these matters falling under the scope of states rights.
That’s really how this got to the Supreme Court, as another test of how far the federal govt can go vs what needs to take place at the individual state level. It really is a landmark case in that it begins to set limits on the powers under the regulation of interstate commerce provision in the US Constitution.
Why did I get picked up in this reply?
After a point, BobbyG just has to spoof all this humorless dueling straw man crap.
So it was OK for the Court to accept that part of the legal challenge but it should have refused to hear the Commerce Clause challenge?
Everyone, Bobby and Mark
Everyone- sorry that my first comment went up three times! (I’ll email THCB staff)
Bobby G– LOL
Mark– The court did not “strike down” Medicaid expansion.
It simply said that the Fed govt could not withdraw Medidcaid funding for
existing Medicaid patients if a state refused the funding for expanding Medicaid to cover new patients. ((The Fed funding would pay for 100% of the cost for 3 years, 90% thereafter.)
I agree with the court on this: withdrawing Medicaid funding for exisitng Medicaid recipients would have been a Draconian penalty.
But this doesn’t mean that Medicaid expansion won’t happen. Virtually every well-infrormed observer agrees that the vast majority of the states will go ahead with Medicaid expansion.
Hospitals, managed care plans, doctors and others need those Medicaid dollars and will put enormous pressure on stubborn Red Sate governors. In states like South Carolina,the legislature is already preparing to stand up to the governor on this one.
In 2 or 3 years (if not sooner) ,the few remaining laggard states wil come on board.
Does that include the ruling striking down the Medicaid provision of the Act?
Mark, MJ and Bobby g
Mark & MJ:
The Court is supposed to second-guess legislation only if it is
unconstitutional.
The vast majority of constitutional scholars (who know the document best)
have said that there was no basis in the constituion for this challenge. They said this before the case went to the Court– and after the decision came down.
The 4 Justices who voted against the ACA are widely viewed (not just by the public, but by legal scholars) as judges who vote their politics, rather than the issues. This has undermined respect for the court– among legal experts, as well as the public. (See links in the post)
If the Court had ruled (and the majority of constitutional experts agreed) that under the Consitution, the law was drafted in a way that was unconstitonal, I would have been disappointed,-but would have accepted the ruling.
But they didn’t. .
This suggests that the case should never have gone to the court., The legisation didn’t violate the constituion, and thus it didn’t fall under the court’s purview.
Finally, the problem is not just that 1 man decided the case– 9 men and women should not decide such important public policy foir the entire nation
The Justices are not our elected representaives. They are appointed for life, This is why the Founding Fathers curtailed thier power.
Mark, MJ and Bobby g
Mark & MJ:
The Court is supposed to second-guess legislation only if it is
unconstitutional.
The vast majority of constitutional scholars (who know the document best)
have said that there was no basis in the constituion for this challenge. They said this before the case went to the Court– and after the decision came down.
The 4 Justices who voted against the ACA are widely viewed (not just by the public, but by legal scholars) as judges who vote their politics, rather than the issues. This has undermined respect for the court– among legal experts, as well as the public. (See links in the post)
If the Court had ruled (and the majority of constitutional experts agreed) that under the Consitution, the law was drafted in a way that was unconstitonal, I would have been disappointed,-but would have accepted the ruling.
But they didn’t. .
This suggests that the case should never have gone to the court., The legisation didn’t violate the constituion, and thus it didn’t fall under the court’s purview.
Finally, the problem is not just that 1 man decided the case– 9 men and women should not decide such important public policy foir the entire nation
The Justices are not our elected representaives. They are appointed for life, This is why the Founding Fathers curtailled thier power.
Maggie – May I introduce you to the US Constitution?
Btw – does your view:
“If we don’t like the laws our elected representatives pass, we can vote them out of office. The Supreme Court, on the other hand, doesn’t have to worry whether its decisions reflect the will of the people. The Justices are appointed for life. This is why they are not charged with setting public policy.”
apply to the laws you don’t like as well as the ones you do like?
I would counter that this is exactly how ‘things are supposed to work in a democracy’. Albeit not the smoothest of processes with regard to the ACA, let me remind you that: there was a legislative bill voted (aka rammed) through, which was then signed by the chief executive-Prez, then challenged in the judicial system. I am not sure where else in today’s world a better example of a three-system republic exists.
While politically Justice Roberts is the ‘maverick’ in the decision, it was not up to ‘one’ justice rather the majority who supported it. If anything, Justice Robert’s ability to stand alone from his conservative ‘caucus’ is comforting.
Gotta love the TeaBaggers. I was inspired to do this:
http://EpistemicHairball.blogspot.com