Obamacare or Romneycare: Is There a Difference?

Last summer I wrote about the individual mandate and the question of whether this feature, and perhaps others, of the Patient Protection and Affordable Care Act would pass constitutional muster when legal challenges eventually found their way to the Supreme Court.

http://bobsolomon.blogspot.com/2011/08/thou-art-commanded-buy-health-insurance.html

The Supreme Court has set aside three days on its calendar in late March to hear oral arguments on these questions, and we can expect its decision by June.

Interestingly, one of the questions to be argued is whether a challenge to the law can even be brought. The challenge, you see, is based on two essential points. One is the individual mandate, and the other is the expansion of Medicaid, both described further below. But neither of those provisions of the law has yet taken effect. So there is a question of whether the law can be challenged at all - at least for the present - because no one has yet been affected by the law. Without getting too deep into the weeds of jurisprudence, I'll just say there is a law called the Tax Anti-Injunction Act (dating to 1867) that says no one can bring a legal action to restrain the collection of a tax before the tax has actually been imposed. The argument is that the individual mandate and the requirement that states expand Medicaid should be similarly regarded, meaning no one can challenge these provisions until they have actually taken effect.

It's hard to say how the Court will rule on this question. The justices may rule narrowly that the 1867 law does not apply because the provisions of PPACA at issue are not, strictly speaking, taxes. That would allow the Court to get on to the business of deciding the key issues without the delay introduced by waiting until the law has taken effect. On the other hand, there is a general principle in federal jurisprudence that the constitutionality of a law can be challenged only by someone who has been directly affected by it, and no one else has standing to bring such a challenge.

Assuming the challenge is not thus delayed, that will bring the Court to the two central questions about PPACA. First, is the individual mandate constitutional? I examined that question in my earlier essay last August. Briefly, the argument is that the authority to impose such a requirement is not vested in Congress by the Constitution because it is not encompassed by the enumerated powers or the necessary and proper clause and does not fall within the realm of regulating interstate commerce.

If the individual mandate is held unconstitutional, PPACA may, as a practical matter, fall apart. But there is another question the Court will then have to decide, which is whether a finding that the individual mandate is unconstitutional nullifies the entire law or whether that provision is severable from the rest of PPACA, which can then (at least legally) stand without it.

Finally, there is the question of whether the move to cover more Americans with health insurance by requiring the states to expand Medicaid eligibility is "coercive" and amounts to "impermissible commandeering." The Court could hold that forcing the states to do this is a violation of the Tenth Amendment to the U.S. Constitution. That argument has been previously used against federal laws requiring states to participate in the administration of a federal program. Medicaid, however, is regarded as a joint federal-state program, so this is an area of uncertainty. The pro-PPACA side will argue that the states administer the program, and that administration has long been governed by some federal mandates. The funding for Medicaid is partly state and partly federal, and so the federal money essentially comes with strings attached. The anti-PPACA side will argue that the expansion of Medicaid will not be paid for with federal tax dollars (although there is some short-term federal funding to help with this), and that makes the forced expansion coercive, representing "impermissible commandeering" of state authority - and state money.

In recent debates among candidates for the Republican presidential nomination, former Massachusetts Governor Mitt Romney has been taken to task for having fostered the expansion of health insurance coverage in his state ("Romneycare") through an individual mandate, yet opposing the individual mandate contained in PPACA ("Obamacare"). Romney says his state's individual mandate and PPACA's individual mandate do not operate the same way. His Republican rivals say there is no difference at all.

But there is a big difference if the central issues are constitutional. Congress may not have the authority to require us to buy health insurance, but the states surely do - just as they can force us to buy car insurance. (Maybe a state Supreme Court would say it's not the same thing, because you don't have to buy car insurance unless you choose to own and operate a car, while health insurance is mandated as a condition of being alive. But the question does not turn on the powers of Congress.) And Congress may violate the tenth amendment by forcing states to expand Medicaid eligibility, but a state can certainly do that of its own volition, or figure out any number of other ways to expand coverage.

So Romney's argument is that even if you don't like what they did in Massachusetts, the state legislature enacted that approach by an overwhelming majority, and the people of the commonwealth like it. Thus, he opposes PPACA, saying it should be up to the states to solve the problem, and each should be free to design its own approach.

His critics ultimately dismiss such distinctions as missing the point: that the way to solve the problem is not by government mandate but by allowing free markets to operate in such a way as to make it overwhelmingly attractive, and affordable, for everyone to procure health insurance.

As my mother used to say, I'd like to see a big oil painting of how that will work.