The Ironies of the Supreme Court Decision

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.

Thoughts on the Mid-Terms & the New Congress

It’s been a while since I posted on here, but I just had some thoughts on today’s historic events that I thought I’d share. First of all, as a politically moderate supporter of President Obama, I was glad to see the Republicans take control back of the House of Representatives. For anyone who read my 2008 essay on the election, you know that I liked what then candidate Obama said regarding changing the political tone in Washington. Unfortunately, I think he found a Washington that was embroiled in political bickering and that was further complicated by his own party which realized it controlled power in all the political branches of government for the first time in 14 years. This resulted in the Democrats early on ignoring President Obama’s attempts to include Republicans on the stimulus just days into his presidency. Speaker Pelosi was intent on showing off the Democrats new found power and used it to swiftly pass the stimulus while President Obama was attempting to court Republicans. This ultimately set the tone for the next two years as Republicans quickly took to the role of minority party and simply criticizing anything proposed by the Democrats.

With the 2010 elections results (which were very predictable), there is now a return to shared government between the two parties. I was VERY pleased with the way things changed in December as three very important items were passed with varying levels of bi-partisan support – the two year extension of the Bush tax cuts, the ratification of the New START Treaty with Russia and repeal of “Don’t Ask, Don’t Tell.” I was hopeful that this was a precursor to how President Obama and Republican leadership would work together on getting things accomplished in the 112^th Congress where there will be shared responsibility.

Unfortunately, what I’ve heard out of House Republicans suggests something different. In fact, it suggests business as usual, such as more investigations into the executive branch and more catering to interest groups. However, the thing that really bothers me is the move to bring up a vote on the “repeal” of the healthcare reform that passed last year. What exactly are the House Republicans hoping to gain with this? I’m sure it will pass the House and they might even get some Democrats to come on board with it. However, it’s got no prayer in the Senate which the Democrats still control and President Obama would veto any such bill anyway. All the Republicans are trying to do is embarrass the President with this move as they want to pass it prior to the State of the Union Address. So that’s what we’re paying them for – passing useless bills just to embarrass the other party. Oh, & I’m not sure it even accomplishes its goal – how will it embarrass them?

Another thought that some of the Freshman Republicans who won in swing districts might want to consider before they vote “Yes” on repeal. Are you sure you want that to be your first big vote? Remember there are some good things in the original health care reform, such as not allowing insurance companies to deny you for pre-existing conditions or allowing children to stay on their parent’s insurance longer. You really want to vote “No” on that stuff? Because that’s what voting for repeal means. Keep in mind, the Congressmen who make up the Republican leadership in the House are mostly from safe districts, but that is not the case for some Freshmen who won in “swing” districts. By voting for repeal, you are writing your opponent's first negative ad when you run for re-election in 2012. “Congressmen X sided with the BIG insurance companies when he voted to allow them to deny you coverage for a pre-existing condition.”

Republicans need to remember the lessons of 1995-96 if they truly wish to use their 2010 victory as a spring board to retaking the White House in 2012. In 1995-96, Republicans tried this same thing with President Clinton. They tried embarrassing him and marginalizing him, and that was when they had control of both houses in Congress. Well, it didn’t work. Clinton rediscovered what made him a popular candidate with moderates and independents and he spoke to those voters again. You can see President Obama starting to do some of the same things in December with his willingness to compromise when it was in the best interest of the economy (extension of the Bush tax cuts and unemployment benefits), seizing the foreign policy mantle as Chief Diplomat (ratification of New START) and being practical in pushing for repeal of an unpopular and defective policy (“Don’t Ask, Don’t Tell”). I said it before the Mid-Terms and I’ll say it now, the Republicans taking control of the House might be the best thing to happen to President Obama. I’m interested to see how he approaches the State of the Union Address both in tone and in actual policy. I’ll try and check in then.

2011 Budget Graphic

A friend of mine on Facebook posted this link to a New York Times visual of President Obama's proposed 2011 budget. It really shows just how much of the budget is made up of items that are set and cannot really be changed like defense spending, social security and medicare. It's a great visual aid. Check it out!

Footnote to the State of the Union

After watching some of the news coverage following the State of the Union, I was struck by how much coverage was given to one part of it – President Obama’s criticism of the recent Supreme Court decision which potentially will change the way campaigns are run and financed. You can click here to read my whole analysis of the decision in Citizens United v. Federal Election Commission, but in essence the Supreme Court held that corporations are free to use their own money to run advertisements in support or against a candidate that is running for election.

In his speech, President Obama said, “With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.” At he same time, the cameras apparently caught Justice Samuel Alito (who voted with the majority and was appointed by President George W. Bush) mouthing the words, “that’s not true” or something of the like.

The next day both Republicans and Democrats predictably lined up to criticize one and defend the other (Obama or Alito). Republicans were critical of the President for criticizing the Supreme Court as they sat right there and said that he did step over the bounds of separation of powers. Democrats criticized Alito for reacting in an unprofessional manner for a Supreme Court Justice. While the Supreme Court routinely attends the State of the Union Address, they are seen as the non-political branch of the government and therefore, they sit there and just listen without any reaction. Part of a Judge or Justice’s disposition is such that they are not supposed to pre-judge issues and simply decide cases on their own merits completely outside the world of politics. As such, they are supposed to be a-political. Well, both parties struck me that their criticism and or defense smacked of hypocrisy.

For the Republicans to say that the sitting President should not criticize the Supreme Court during the State of the Union, what do they say about all the times Republican Presidents have criticized justices for being “activist” and especially during the State of the Union, I can recall Presidents Reagan and both Bush’s criticizing Roe v. Wade and President Reagan routinely asked for a constitutional amendment to overturn it. I never heard any criticism then. Also, what if the Republicans had won in 2008? Do they really think that “President McCain” would have avoided the red hot issue when he has been a champion of campaign finance reform for much of his career? As a Senator, he has been critical of the decision and I expect, “President McCain” would have had something very similar to say.

As for Democrats, they were critical of Justice Alito for saying that the President wasn’t correct. As a side note, there is a lot of chatter in the legal community as to whether President Obama was right regarding the issue of foreign corporations. There is a debate whether or not the Supreme Court decision would extend to foreign companies or be limited to American corporations, so for Justice Alito to say that the President was wrong, could be right when it comes to the foreign corporations possible involvement.

So what do I think? I think they were both wrong, but for slightly different reasons. Justice Alito should have some composure as a Justice on the highest court on the land and be able to keep his thoughts to himself. Meanwhile, I have said since the case was decided that President Obama’s criticism is completely hypocritical as he has been the biggest campaign fund raiser by far in American politics. Also, one other thing that I have failed to mention in my prior posts on this Supreme Court decision is that it applies to labor unions as well. You don’t think that will help the President and his fellow democrats? As I’ve said, politics and money go hand in hand and the more the politicians try and separate the two, the more their OWN supporters will try and find the loopholes. If that’s not hypocrisy, what is?

Unfortunately, in a speech where the President tried to reach out to Republicans by espousing many of their ideas (tax cut and credits, off-shore drilling, earmark reform, etc.) and attempted to engage them on some of his issues like health care reform, the parties found something in the speech that could drive them farther apart. In a speech that was an attempt to set up bi-partisan talks, the partisans found a way to make a partisan issue. That’s why I am losing faith in national politics as a whole. It seems like even when there are a few individuals who will try and work together, most of the partisan players are more willing to try to bring the others down then they are in trying to enact meaningful legislation.