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.