I know it's been a while since I posted on this blog, but
given the historic decision today by the Supreme Court, I figured it was time
to resurrect the blog. While I’ve made no secret of the fact that I supported
the Affordable Care Act, I do not want to talk about the merits of the law or
the rationale of the decision. Rather, I want to talk about some of the ironies
that exist since the decision has been announced - one irony in the reactions
and the other in the result.
The first irony I found was in the reaction by
conservatives. Predictably, they were not happy with the decision as they wanted
the court to strike down the law. What I find ironic about this is that it
wasn't that long ago that conservatives bemoaned the role of activist judges
who would do from the bench what couldn't be accomplished at ballot box. They
would always criticize judges who would substitute their judgment for those in the
political branches (i.e. legislative and executive branches). However, in this
instance the conservatives wanted the judges to do exactly that. It used to be that
conservatives would argue that if you didn't like something that Congress had
enacted, the appropriate reaction was to try and change that result through the
electoral process. It’s for this reason that I found the following to be the
most interesting quote from Chief Justice Roberts’ opinion: "But the Court
does not express any opinion on the wisdom of the Affordable Care Act. Under
the Constitution, that judgment is reserved to the people." It's almost
like Chief Justice Roberts is telling the American electorate that if they
don't like his decision, it's their prerogative to change the leadership in Congress
and the White House. You can already see that is the tactic that Mitt Romney is
taking when he said "What the Court did not do on the last day of its
session, I will do on my first day as president." In other words, if you
don't like it, vote for Romney.
The second irony I found was in the end result. A very underreported
part of this litigation leading up to the oral arguments, after oral arguments
and now after the decision, is the issue surrounding the Medicaid expansion. All
the attention in the coverage of this case has focused on the so-called individual
mandate, while very little had addressed the issue of the Medicaid expansion. In
a nutshell, the Affordable Care Act extended coverage to many low income
individuals who previously did not qualify for Medicaid by expanding the
eligibility population for the Medicaid program. Since Medicaid is a
partnership between the federal and state governments and state governments
share in the cost of the Medicaid program, many states had challenged the Affordable
Care Act arguing that the law unconstitutionally required them to expand their
Medicaid program to the newly eligible population or risk losing all of the
federal money that they received for their entire state Medicaid program. In
other words, the states argued that the federal government was “blackmailing” them
by threatening their existing funding that they already received. Most of the
analysis, what little there was, disregarded the states’ challenge as it was
assumed that the Court would uphold the Medicaid expansion.
It turns out that the real surprise of the day, that still
has not gotten much attention, is that a majority of the Court agreed with the
states that the federal government could not require the states to expand their
eligibility populations or risk of losing all their Medicaid funding. The
decision by the court does allow the federal government to expand Medicaid to the
newly eligible population, but only if it gives the states the option of
whether they will agree to it. In other words, as with many things in Medicaid,
things could vary greatly from state to state. The truth is the federal
government is scheduled to pay for most of Medicaid expansion. The Affordable
Care Act calls for the federal government to initially pay for all the new
enrollees under the expansion until 2017 and then the amount the federal
government pays will gradually decrease until 2020 at which point the feds will
pay 90% of the cost of the newly eligible beneficiaries. (For a complete
analysis, please see this
brief from the organization I currently work for explaining how the Medicaid
expansion will be paid for.)
Given the highly partisan nature of the Affordable Care
Act, there have already been states that have refused federal money because it
was being appropriated to them under the health care reform law. I believe it
is entirely conceivable that in some of the most Republican states the idea of
accepting money from the federal government as a result of this law will be so
toxic that the state will refuse to expand Medicaid. The irony of all this is
that the Affordable Care Act was designed to increase access to health care by
increasing the amount of people with health insurance. This was especially true
of low income individuals who cannot afford to pay for their own coverage, i.e.
the ones that would be eligible under the Medicaid expansion. Now that it will
be left up to the states, it is entirely possible that the very population this
law was intended to extend coverage to will be without it. So despite the fact
that the left thinks that this decision was a win for them; I think the jury is
still out.
