The Affordable Care Act – Some Things to Consider

Political pressure has been building around the Affordable Care Act of 2010, sometimes referred to as Obamacare. There is no doubt that this pressure will be applied to the new Republican Congress with the aim of improving our flawed health care system. The Supreme Court will be revisiting the law in 2015 as it has agreed to review lower courts’ rulings in the case of King v. Burwell and other related cases. At the very least, the Court’s ruling on King will have implications for about 5 million people who are receiving federal subsidies for their health insurance under the new law. Some claim that the Court’s decision on King could in effect deal a deathblow to the entire ACA. This remains to be seen.

It’s important to remember that the decision handed down by the Supreme Court on June 28, 2012 was limited in its scope. The Court’s decision did not address the Constitutionality of all elements contained in the Affordable Care Act, but only two elements, the so-called individual mandate and the expansion of Medicaid. The Court was deeply divided in its decision, but ruled 5-4 that the individual mandate was constitutional because it was understood as being within the scope of Congress’ power to tax, although the Court also ruled at the same time that the Constitution’s Commerce Clause did not give Congress authority to implement the individual mandate as argued by Obama Administration lawyers. But the Court found one justification for the individual mandate and that was all that was needed to allow it to stand.

The second provision in question, the “Medicaid expansion” was ruled unconstitutionally coercive by a majority of the Court. As a result, States could not be compelled to participate in the Medicaid expansion provision, effectively allowing states to opt out. But the Court’s ruling against the Obama Administration on the Medicaid expansion provision did not render the entire Affordable Care Act unconstitutional. Chief Justice Roberts summarized the Court’s decision:

“The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.

“As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer. The States are given no such choice in this case: They must either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding. The remedy for that constitutional violation is to preclude the Federal Government from imposing such a sanction. That remedy does not require striking down other portions of the Affordable Care Act.”

Except for the Medicaid expansion provision, implementation of the Affordable Care Act was allowed to move forward. Generally speaking, Democrats and Liberals were ecstatic with the Court’s decision, while Republicans and Conservatives were deeply disappointed.

Had only one justice come to a different conclusion, the Affordable Care Act might have had to have been scrapped entirely, or at the very least, the Court would have ordered Congress to rewrite or eliminate the specific provisions in question, namely the individual mandate and the expansion of Medicaid.

What surprised many Americans with divergent views on the ACA was that when the court’s decision was announced it was revealed that Chief Justice Roberts, often viewed as a conservative member of the court, had sided with the more liberal court members, thereby upholding the bulk of the new health care law.

I have heard people who favor the Affordable Care Act say that, because Chief Justice Roberts, a conservative, voted to uphold the law, that the law is therefore bulletproof and there can be no further challenges to it. This is wishful thinking based on false assumptions and flawed reasoning. In fact, I wonder how many of the people guilty of this argument have ever read Judge Robert’s opinion. My guess is not many of them. Let’s have a look at some of the other things Judge Roberts expressed in his official opinion regarding the Court’s decision.

The Chief Justice made it very clear that the questions addressed by the court were specific and limited in nature. At issue was not the entire Affordable Care Act, only the two specific elements previously mentioned:

“Today we resolve constitutional challenges to two provisions of the Patient Protection and Affordable Care Act of 2010: the individual mandate, which requires individuals to purchase a health insurance policy providing a minimum level of coverage; and the Medicaid expansion, which gives funds to the States on the condition that they provide specified health care to all citizens whose income falls below a certain threshold…. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

In addition, Chief Justice Roberts made it known that, although he sided with the majority, which had the consequence of upholding ACA for the time being, his decision should not be interpreted as being some sort of tacit approval of the new law:

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”

And later:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.”

That Justice Roberts was not making a judgment in this case on the wisdom of the ACA, its efficacy or the prospects for its success is beyond argument. Those who claim otherwise have either not read his opinion, or have, but prefer inventions that are not true.

Roberts also touched on a political aspect with regard to ACA and national policies in general,

“Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

The Chief Justice was pointing out that the American people may suffer from the negative effects of their own doing when they elect leaders who implement bad policy, but that the Court’s job is to only rule on the Constitutionality of those policies, not whether those policies are wise or good. Roberts indicates that the remedy for policy that is Constitutional, yet poor, is to “throw the bums out.” That is what happened on November 4th.

Hopefully the new Congress will be able to enact health care legislation that is truly bipartisan and that will actually live up to its name without bankrupting health care consumers, the federal government or taxpayers.

In our next post we’ll explore in detail some of the Justices’ reasoning for and against using the Constitution’s Commerce Cause to justify the individual mandate. The varying ideas surrounding this issue have huge implications for individual liberty and the limits of government power. We’ll also touch upon interesting items including the Court’s decision to construe the “penalty” as a tax even though the law does not refer to the penalty as a tax. Does Gruber come to mind?

Frotho Canutus