Unless you've been hiding under a rock - a really big rock - you now know that the Patient Protection and Affordable Care Act (the ACA) has (mostly) survived judicial review. The "mostly" part of that statement is important, as we shall see.
The centerpiece of the challenge to the ACA's constitutionality was the contention that the individual mandate to purchase health insurance is an exercise of congressional power that exceeds congressional authority.
Absent any claim to being a constitutional scholar - I do not even play one on TV - last August I briefly outlined the arguments that Congress was exceeding its authority under its enumerated or implied powers to regulate interstate commerce or provide for the general welfare (8/19/11):
http://bobsolomon.blogspot.com/2011/08/thou-art-commanded-buy-health-insurance.html
At the risk of substantially oversimplifying matters, I might say the Court reached much the same conclusion. Then, however, notwithstanding the plain language of the statute, the Court upheld the ACA based on the notion that the requirement that everyone purchase health insurance is not a regulatory mandate with a penalty for noncompliance (which would exceed the constitutional authority of Congress) but rather a tax. And the power of Congress to tax and spend (to "provide for the ... general Welfare") is essentially unlimited.
(In between the Court's pronouncement that Congress had no authority to do this one way and its further pronouncement that Congress could - and did - do it another way, major news outlets jumped the gun - in the middle of the explication by Chief Justice John Roberts - and announced that the ACA had been struck down, thereby making complete fools of themselves.)
I will not recount here what I view as the tortured logic of the majority opinion declaring it a tax or the incisive and compelling logic of the dissent on that point. (I do, however, commend both to you for your reading pleasure, or at least your enlightenment - although Scalia's opinions are, more often than not, reading pleasure for me, even when I disagree with them). I will merely point out what I consider to be a common-sense view. When you tell people who are not doing something that they must do it or pay a fine, that is a regulatory mandate with a penalty. When people are engaging in an activity - typically involving goods, services, or money changing hands - and you estimate the value and exact a payment in relation to that value, then that is a tax. In other words, inactivity can be forcibly replaced by activity through a mandate, while activity can be taxed. So, contrary to the language of the ACA itself, which many times describes a mandate of activity (purchasing health insurance) and a penalty for inactivity (failure to purchase), the Court has decided the penalty is a tax, as if the government were taxing inactivity.
Perhaps you have no interest in reading the majority opinion or the dissent. Perhaps all you want is to know that the Court has upheld the individual mandate, and you think it really matters not a whit whether the decision passes your personal logic test (or mine, for that matter). The Supreme Court has the final word on that point, unless you want to disagree with Chief Justice John Marshall's Doctrine of Judicial Review, and then you're really going off on your own. Fair enough. That brings us to the "Now What?" part of the title.
It is possible that the Congress will repeal the ACA. As you surely know, that would require the same thing the Act's original passage required: majority votes in both houses - and, as practical matter, because of the filibuster/cloture stuff that goes on in the Senate, a sixty-vote majority (instead of 51) there. Given that not a single pundit I've come across thinks the Republicans are going to have 60 senators next January, repeal seems exceedingly unlikely. Oh, and by the way, if President Obama is reelected, it would take a veto-proof majority of two thirds in each chamber, and you know what they say about flying pigs.
So the ACA is here to stay. (No rhyme intended, and if you like the sound of that, please don't start chanting it.) What, then, are the other implications of the Court's decision for the effect of the Act?
As you know if you are a regular reader, I think we need universal health insurance coverage in the United States, and I have been critical of the ACA because it really doesn't get us there. We have some 50 million uninsured people in this country. The ACA as enacted held out the promise of reducing that by about two thirds. Thirty-some million folks would be added to the rolls of the insured. Short of the goal of universal coverage, yes, but nevertheless welcome progress if it panned out. However, the Court has tossed a bit of a monkey wrench into the works. You see, about half of the newly insured were going to be covered not by health insurance they bought in response to the mandate but by expansion of Medicaid, the joint federal-state health insurance program for the poor.
That is enough of a problem in and of itself, because Medicaid is not "real insurance," as I've explained before and will come back to in a bit. But now the Court has said Congress does not have the leverage included in the ACA to get the states, which administer Medicaid, to add all those people to its rolls. Under the provisions of the ACA, states that didn't expand Medicaid as required by the Act would lose all of their federal Medicaid funding. But the Court said no, Congress cannot do that.
And now some states have already said they will not expand Medicaid coverage as envisioned by the ACA, with more announcements to that effect predicted. Depending on how many states decide they just cannot afford to expand Medicaid coverage, even with a substantial initial infusion of federal tax dollars, this could put a serious damper on the ACA's effect in reducing the number of uninsured. Today on NPR commentators noted the claim by some state officials that this is dauntingly expensive, and voluntarily expanding Medicaid coverage would be like booking passage on the Titanic.
And so it appears there may be millions who would have been newly covered by Medicaid under the ACA who will remain uninsured, unless Congress comes up with a different solution for them.
What about those who do become new Medicaid recipients? That brings us back to the problem mentioned earlier, that Medicaid is not "real insurance." You see, what Medicaid pays to the providers of health care services (doctors and hospitals, among others) is far less than what is paid by private health insurance. Therefore, many doctors will not accept Medicaid patients into their practices. In some states Medicaid pays so poorly that Medicaid recipients have tremendous difficulty finding doctors to treat them anywhere but the one place where the answer is always yes: the emergency department.
When the disparity between access to care for Medicaid recipients and those with private insurance is large, because Medicaid pays poorly, that violates the "equal access" provision of the federal statute underlying the program, and states where that is the case are supposed to be forced to pay better and narrow the gap. Who has the responsibility for enforcing the "equal access" provision? The Department of Health & Human Services (HHS). And who is failing to enforce this provision, so that equal access continues to be a distant dream for those on Medicaid? That's right: HHS.
In many states Medicaid programs have been moving in the opposite direction, narrowing coverage and cutting payments to providers. And so the improvement in access to care envisioned by the ACA is in serious jeopardy, notwithstanding the Supreme Court's decision to uphold the individual mandate.
Surely the ACA may have the effect of reducing the numbers of uninsured by a substantial proportion. I fear, however, that far from the dramatic improvement promised by the Act's proponents, it may ultimately prove to be more incrementalism that falls well short of the goal. And then Congress will be where it really doesn't want to be: back at the drawing board.
No comments:
Post a Comment