I am still at NBC but, as many have heard, the Supreme Court delivered a clear victory to the Obama Administration in upholding the individual mandate. However, the response may be a bit too gleeful for both those following the implications for the Court and the White House.
The decision is likely to deepen negative feelings that preexisted the opinion. Obviously, for conservatives and many supporters of federalism, this will be viewed as the Brutus moment with regard to Roberts. However, it will also magnify the controversy surrounding the failure of Justice Kagan to recuse herself. To the extent that a crash landing is still a landing, this is a victory. There is no question that the law survived but there are serious questions of how it will be implemented in light of this decision. If you look more closely, there are serious problems ahead.
First, to the extent that Roberts wanted to unite the Court, he failed. This is another 5-4 decision with a deeply fractured court — reminiscent of Bush v. Gore in the splintering of rationales.
Second, by holding that the individual mandate is not supportable under the commerce clause but as a tax, the Court leaves the White House will only the stick of the law — citizens who do not purchase insurance will be penalized. It is a terrible result for those of us who felt the law was unconstitutional under the commerce clause. While agreeing with that opposition, the Court has affirmed that Congress can easily circumvent federalism concerns. The decision leaves federalism as the constitutional version of the Maginot Line from World War II — an impressive line of defense that can be simply avoided by going around it.
Third, with the decision on the expansion of medicaid, the White House is faced with a health care law that could come with a massive bill for Congress. The drafters wanted young people and the states to bear significant costs. That support is likely to come up short — leaving the government with the unpopular task of appropriating additional funds.
Fourth, by allowing states to opt out (it is really opting in since the state would have to decide to expand its program), the Court has inserted into the law something that Congress rejected. There were calls for opt in provisions that were defeated. The result is that the Court has done what it said it would not in oral argument — produced a materially different law. If a state can opt out, can it take the heavy federal subsidy of 9 to 1 dollars for the first few years and then opt out later?
In the end, this has to be viewed as a victory for the White House, but it is not much of a victory for the credibility of the Court which remains deeply divided. While the opinions are polite, the decision in my view again shows the dangers of a Court that is simply too small.
I previously ran the original and longer version of my column to further explain the proposal to expand the Supreme Court to nineteen members. I also have a second column in the Guardian newspaper that further discusses some of these issues.
Here is the opinion: 11-393c3a2
OS,
Good but brief article at Slate. I would have to say it approximately mirrors what I substantively think of the situation.
http://www.scotusblog.com/2012/06/chief-justice-roberts-comes-into-his-own-and-saves-the-court-while-preventing-a-constitutional-debacle/ Laurence Tribe says that Roberts did more than save the law – he saved an institution.
Here is an interesting article from Slate. The headline reads “Obama Wins the Battle, Roberts Wins the War”
I have not had time to read the actual decision yet, but will be reading it tonight or tomorrow. Something does not pass the smell test and it will take a while for a full analysis of the deeper meanings of the decision. I look forward for the constitutional experts here to pick it apart, as I know they will.
http://www.slate.com/articles/news_and_politics/scocca/2012/06/roberts_health_care_opinion_commerce_clause_the_real_reason_the_chief_justice_upheld_obamacare_.html
Oh my, Mommie Vinegar has chastised her pet? Are we going to get so upset that we won’t be able to eat our food Klown Boy?
Blouise,
I think the poison pill analogy is apt.
Sometimes you attack an enemy by giving them what they want but just not in the way that they may want it.
Gene … there, you see what I mean.
This is, as a friend suggested, a poison pill from him to Obama.
My friend Bubbanomics has weighed in on the issue. Offered without comment, except a warning to not open the link if you have any liquids in your mouth:
http://www.dailykos.com/story/2012/06/28/1104098/-HAHAHAHAHAHAHAHAHA
Yuck it up now while you can people. Obama swore up and down in many venues that he will not raise one dime of taxes to any family making less than $250k/yr. To get votes they argued in Congress that this mandate was not a tax, it was a fee (or insert other moniker here) charged via the commerce clause. Do you have think this act would have passed congress with this massive tax? To SCOTUS they argued commerce clause and tax. The commerce clause argument failed but change the nomenclature to “tax” and, viola, it’s upheld. SO, Obama got to raise the taxes of millions of the middle class with this when he promised repeatedly that this would never happen. What a sad lie and betrayal this is to the citizens (and illegal residents) of the USA. If you are happy with a President like this I suggest you keep this guy as you belong together. If you are not I suggest we do the same as GHW Bush with his “read my lips” dance and vote him out of office in November. Oh, I donated some bucks to Romney too. I will also encourage all those who will listen to join the battle.
“Do you hear the people sing?
Singing a song of angry men?
It is the music of a people
Who will not be slaves again!
When the beating of your heart
Echoes the beating of the drums
There is a life about to start
When tomorrow comes!”
(Thanks to Les Miz)
shano’s motives should be shano’s sentiments
Gene,
I have read all the back ‘n forth between you and shano.
Your words … “This is the illusion of victory for We the People.” are ones that, at this point, I favor most although I agree in large part with shano’s motives.
For the moment I am reading Robert’s opinion and Roberts appears to uphold the mandate on the theory that it’s a tax … if that is the opinion that becomes the “talking point” then it is not a favorable position for the President or democrats.
However, he (Roberts) also appears to suggest the spending power can carry limits enforced by the judiciary. I may be reading that wrong but it is the impression I got. I think he maintained categorical limits on the commerce clause.
What I’m trying to figure out is where his opinion meets an offered argument.
“Sector Snap: Insurer down after health care ruling
3:34 pm ET 06/28/2012 – Associated Press, The
Shares of health insurers traded mostly lower Thursday after the U.S. Supreme Court upheld the 2010 health care overhaul law, although Medicaid coverage providers’ stock soared on the news that the ruling preserves a planned expansion of the government program.
In a highly anticipated decision, the court ruled by a 5-4 majority that the health care law is constitutional. It upheld key provisions of the law, including a mandate for most people to have health insurance starting in 2014 or pay a penalty.
The overhaul will expand coverage to millions of uninsured people in two years by expanding Medicaid and providing tax credits to help middle-income people who don’t get insurance through their jobs to buy it on their own. The law’s penalty also is expected to prod people to buy coverage.
These changes could bring millions of new customers to a managed-care sector that has had a hard time finding steady growth opportunities in the slow economy. But the law also restricts the sector and imposes annual fees that start in 2014 at $8 billion and climb in subsequent years.
The law limits how much insurers can vary prices based on customers’ age or health, and it requires insurers to pay rebates if they don’t spend a minimum percentage of the premiums they collect on improvements in care and quality.
Shano,
“this is the first real regulation of health insurance that I can remember in 40 years of buying individual insurance. We have been completely at the mercy of the private market corporations who have squashed every law to regulate and have bought favorable laws for decades.”
And you think things will be different now in the wake of Citizens United? Law doesn’t operate in a vacuum either isolated from society or its other constituent parts. How long until the campaign begins to sweeten this already profitable deal for the HCI industry begins, fueled by massive anonymous corporations and wealthy investors who stand to make money off of a mandated purchase of their for profit product?
Not very long would be my guess.
The ACA creates state-based Health Insurance Exchanges administered by a governmental agency or non-profit organization, through which individuals and small businesses with up to 100 employees can purchase qualified coverage. In 2014 and beyond most Americans who work for small businesses or obtain their coverage in the individual health insurance market will do so through health insurance exchanges.
Exceptions:
Those covered by grandfathered plans and
Those covered by self-funded plans (this will apply to very few businesses)
States also have discretion to allow businesses with more than 100 employees to purchase coverage in the Exchanges beginning in 2017. In addition, states may opt to allow the federal government to establish an Exchange in their state rather than implement their own. Another possibility allowed by the ACA is for states to form regional Exchanges or allow more than one Exchange to operate in a state as long as each Exchange serves a distinct geographic area.
The ACA specifically requires all new policies (except stand-alone dental, vision, and long-term care insurance plans), including those offered through the Exchanges and those offered outside of the Exchanges, to comply with one of the four benefit categories. Existing individual and employer-sponsored plans that achieve Grandfather Status do not have to meet the new benefit standards. This provision becomes effective January 1, 2014 at the same time the Exchanges become operational.
Benefit Mandates (also effective Jan. 1, 2014):
Limit deductibles for health plans in the small group market to $2,000 for individuals and $4,000 for families unless contributions are offered that offset deductible amounts above these limits. This deductible limit will not affect the actuarial value of any plans.
Limit any waiting periods for coverage to 90 days.
Allow states the option of merging the individual and small group markets.
Create an essential health benefits package that provides a comprehensive set of services, covers at least 60% of the actuarial value of the covered benefits, limits annual cost-sharing to the current law HSA limits ($5,950/individual and $11,900/family in 2010), and is not more extensive than the typical employer plan.
Require all qualified health benefits plans, including those offered through the Exchanges and those offered in the individual and small group markets outside the Exchanges, except grandfathered individual and employer-sponsored plans, to offer at least the essential health benefits package.
The states are also required in the individual and small group markets (including the Exchnages) to offer four distinct benefit tiers that cover at least 90%, 80%, 70%, and 60% respectively of the actuarial value of the covered benefits similar to what is listed above in describing the essential benefits package.
State Implementation Decisions:
It is unclear at this point if states can or will include their individual state benefit mandates in the essential benefit packages described earlier. Will Minnesota health plans in the Exchange be required to provide coverage of wigs for cancer patients as they are for small groups now? Will Louisiana continue in the Health Insurance Exchanges to be the only state to mandate coverage for attention deficit disorder?
These are important decisions as states grapple with building their Exchanges. Advocates fought hard to gain these benefit mandate provisions and one can only assume they will be actively lobbying legislatures to include them again.
Of course states can also decide to opt out of implementing its own Exchange and give up control by letting the federal government do it. Obviously some states will allow the federal government in, but others like Wisconsin may not want to give up control.
Then there are decisions like implementing Exchanges regionally or across an entire state, opening them up to employer groups as large as 200 employees in 2017, and others.
This is a huge effort and it will be very interesting to see what nuances states develop. Hopefully, they will be largely similar and easily navigated by consumers, agents, and others.
eniobob, The Obama team had done a poor job of communicating all the good things that are in the Affordable Care Act.
http://www.acatoday.org/content_css.cfm?CID=4578
Exchanges Defined
Health insurance exchanges will be marketplaces where consumers can compare and purchase health insurance. The exchanges will operate websites, toll-free phone lines and physical offices to provide information about the available health plans and to help consumers enroll in coverage. Many believe that having the ability to more easily review and purchase health care coverage will create a more competitive marketplace for buying health insurance.Insurance plans offered for purchase on the exchanges will be required to conform to certain standards laid out by the federal government. Many of these standards have not yet been finalized. However, some basic requirements for exchanges were specifically delineated in PPACA.
Each state is required to develop and have a functioning insurance exchange operating by 2014. If a state chooses not to develop an exchange or does not develop an adequate exchange, the federal government will come in and develop and operate that state’s exchange. Initially, not all consumers will be able to purchase insurance through a health insurance exchange. In 2014, exchanges will serve individuals who are buying insurance independently and small businesses that have up to 100 employees. In future years, states will have the option of allowing businesses with greater numbers of employees to purchase insurance through the exchange.
Health insurance plans sold on the exchanges also will be required to cover certain health care services. The benefits that are required to be covered are called “essential health benefits.” The Department of Health and Human Services (HHS) has called on the Institute of Medicine (IOM) to help develop criteria for determining essential health benefits. The IOM is expected to release its report to HHS in the fall of 2011. After review of the report, HHS will issue proposed regulations giving more information about the required essential benefits. ACA has been actively involved in ensuring that the services provided by DCs are recognized as essential.
“Medical Exchanges are set to be put into place in the United States by January 1, 2014. The purpose is to help provide benefits to the 30 million Americans who currently do not have coverage. How they are planning on accomplishing this is by expanding Medicaid benefits to lower income Americans, and providing subsidies to Americans who earn less than $85,000/year as a family. This new law will cost approximately $938 Billion dollars over the next 10 years.”
http://www.ehaplan.org/content/medical-exchanges-will-be-reviewed-us-supreme-court-2012
““On July 11th, the House will once again repeal ObamaCare, clearing the way for patient-centered reforms that lower costs and increase choice. We support an approach that offers simpler, more affordable and more accessible health care that allows people to keep the health care that they like.”
http://majorityleader.gov/Blog/
Geeze Darren,
What a beautiful talking point you have….. Too bad that was argued before the Sct…… It’s, what you call a moot point now…..
Is anyone here going to explain “exchanges” to me? I really do want to understand them.
Gene H.:
“But conservative states such as Florida and Texas, which have refused to implement the law while they challenged it in court, could reject federal aid, leaving millions of their residents without medical insurance.”
I guess people who live in the above mentioned states or states that do the same thing,the only remedy to the citizens of those states would be the ballot box,especially if people start hearing good things about the program.Other than what they know or think they know IMHO.