I have not mustered the nerve to listen to any You Tube clips of the arguments before the Supreme Court or read any transcripts of the arguments , so I will just have to go by news reports of what was said about Obamacare. My general impression is that the five conservative justices show all inclination t0 strike down the mandate, that Scalia (and, by implication, Thomas) will almost certainly take a root-and-branch approach to the whole thing, and that the extensions of Medicaid are in grave danger. Indeed, some commentators have suggested that the Supreme Court may even declare Medicaid in its entirety an unconstitutional burden on the states.
So, for starters, I do not believe that the Supreme Court will declare Medicaid unconstitutional. Thomas might, but I am confident that for the others, the political price would be much too high. A number of people have pointed out that, given widespread skepticism about Obamacare, the justices will probably not pay a high political price for striking down the mandate, or even for a root-and-branch approach. Attacking Medicaid would be another thing altogether. Striking down Obamacare means that 30 million people will not get health insurance. Striking down Medicaid will mean that a comparable number of people will lose healthcare. Many of them will be seniors in nursing homes whose assets have been depleted paying for their care. Many others will be children. The sight of seniors being thrown out of nursing homes because of a Supreme Court decision will arouse public outrage. The pressure on states will be immense to do something about the sudden flood of uninsured, many of them children. Even the most hard core Tea Party state government will be thoroughly displeased by the flood. So, no, if the constitutionality of Medicaid were questioned, I have no doubt that the Supreme Court would vote 8-1 (Thomas dissenting) that it was constitutional.
If, on the other hand, the federal government has passed an expansion of Medicaid that states must accept on penalty of losing their entire Medicaid funding, it is entirely possible that the Supreme Court will find that an unconstitutional coercion of the states. Justice Roberts will say, with the utter reasonableness that is his trademark, that of course the federal government may offer states expanded Medicaid coverage. But it may not threaten states with the loss of all Medicaid funding if they refuse. Congress is perfectly free to reenact the expansion, minus the extreme penalty. He will know, of course, that given Republican domination of Congress, such an outcome would be politically impossible. And, incidentally, I do not think such an argument is unreasonable. Telling the states to accept this expansion or lose everything does smack of unreasonable coercion, and requiring less drastic measures would be in line with earlier rulings. It’s just that right now Republicans have made preventing any reduction in the number of uninsured their priority, so this reasonable suggestion will be pointless, and Roberts will know it.
Conventional wisdom has it that the individual mandate is toast. What follows? I think we can rule out the Supreme Court striking down the individual mandate but leaving everything else. Even the Administration has asked them, if the strike down the mandate, also to strike down the parts requiring community rankings and banning insurance from excluding people due to pre-existing conditions. These conditions rise and fall together. To strike down the mandate but leave the community rates and pre-existing condition ban would set off a death spiral. While this would have the gratifying effect of being politically very damaging to Obama, it would also bring pressure on the government to do something, and the last thing any conservative wants is for government to do something. The root and branch approach is possible and (as I understand it) almost certainly what Scalia favors. But I suspect the Supreme Court will ultimately decide against it because it will look a little too much like judicial overreach.
So here is my guess. Roberts, Alito and Kennedy will write a plurality opinion striking down the mandate, community ratings, bans on discriminating against pre-existing conditions, possibly the expansion in Medicaid, and enough to cripple the law. But they will leave enough tatters not to look too much like judicial overreach. Scalia and Thomas will write a concurring opinion declaring the whole thing unconstitutional and calling into question the entire New Deal edifice.* The four liberal justices will stridently dissent, expressing the opinion that the whole thing is constitutional. This is based on the justices’ overall track record. Roberts, Alito and Kennedy tend to write opinions giving conservatives everything they want on the immediate issue, but refraining from broader constitutional rulings. Scalia and Thomas make sweeping constitutional pronouncements. Consider it a game of good cop/bad cop, with Scalia and Thomas being scary enough to make the others seem reasonable.
So what will be the effect? Well, if I am right, some incremental improvements like letting people stay on their parents insurance to age 26 will survive. The exchanges will survive, and people will get a subsidy to buy insurance, but many people will choose not to act and/or be priced out. A few people will get insurance who didn’t have it before, a major expansion in the number of people covered will be averted. (Whew!)
And, no, I do not agree with people who think this will lead Democrats to enact a single payer. Each time Democrats try to achieve universal coverage, Republicans strike it down and make it too toxic to address again for a decade or two. This time, their goal is clearly to make it too toxic to touch again EVER. Why Republicans have made so high a priority of ensuring a large portion of the population remains uninsured is something I do not understand, but it is time to face facts and acknowledge that is their goal.
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*I may be wrong about that. It is quite possible that Scalia will limit himself to calling for a root-and-branch elimination of the health care law, and Thomas will write a second concurrence, calling for the overturn of the entire New Deal.
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