The Supreme Court's Health Care Decision - Making Sense of It

Disclaimer: the statements below are solely those of the author, and do not represent the views of any other person or organization.

The debates and discussions about the Supreme Court's decision on the Affordable Care Act will continue for a long while. The politicians, health industry, and public will focus on the policy debates behind the ACA and whether it should continue or be repealed. November 6 may well settle that question. Legal scholars and lawyers, on the other hand, will parse through the interesting mix of opinions and what they mean for constitutional law. Both are important but neither is easy.

1. Impact on Politics - a clear winner is Barack Obama and the Democrats who pushed ACA through Congress. The ACA is Obama's signature legislative achievement and having it upheld, or at least mostly upheld, is necessary for Obama to win reelection. How much of a boost it provides his election prospects is uncertain - I still think the economy will be more important. As for Republicans and Mitt Romney, they will redouble their efforts to defeat Obama in November and amass enough political capital to repeal the ACA. The decision may light a fire in their constituency, but they would need a strong majority and the right circumstances come January to repeal the ACA.

2. Impact on Businesses and the Health Industry - for them, they can rest easy because they above all needed certainty. The health industry and other affected businesses have spent two years preparing for the implementation of the ACA. I know CMS has issued a number of rules implementing the law and for the law to be gutted would have undone the industry's expensive preparations. The impact of the ACA on the health industry is complex and long, and providers, insurers, other businesses are mixed about the ACA but at least they know it is the law of the land and must be complied with.

3. Impact on Federal Power - the constitutional challenges to the ACA were about the limits of federal power, specifically under the Commerce and Tax and Spending Clauses in the Constitution. The decision was a loss for proponents of strong federal power in several ways. First, Roberts and his conservative colleagues in dissent all agree that Congress's power under the Commerce Clause are subject to further limits, specifically that inactivity is outside the scope. Although the individual mandate may be a special case and Robert's discussion may be dictum, courts look more carefully at Congress's assertion of power under the Commerce Clause. I doubt that the various civil rights, environmental, and other social welfare laws are in jeopardy since existing Commerce Clause jurisprudence, even with the new inactivity limitation, sufficiently supports them.

The limitation on the Spending Clause power and the application of the coercion theory will also affect Congress's power to induce states through federal money. The Court did not fully enunciate what constitutes coercion, but they provided a concrete example of coercion (penalizing through withdrawing all Medicaid funds if a state refused to accept the ACA's reforms). That was the first major Spending Power limitation for almost a century. Overall, while the preexisting broad federal powers under the Commerce and Spending Clauses remain unchanged, the decision will likely lead to more stringent policing by the courts.

4. Impact on the Supreme Court - perhaps the biggest winner is the Supreme Court and the rule of law. Facing charges that the Court is a politicized branch and no longer a neutral arbiter of the law, John Roberts helped stem that tide and restore the Court's image as a legal institution. Many have welcomed the change and pointed to the whole October 2011 Term, which is less "conservative" and ideologically-divided than many past terms, while others have been more cynical and point to Roberts delivering a political victory to Obama while saving the legal victory for the challengers. Nonetheless, I think the Supreme Court has enhanced its stature in public eyes as a court of law, not a court of politics in disguise. How that carries on next term with affirmative action and gay marriage remains to be seen.

The public debate about the ACA and future of health reform will not die down soon. America needs health reform and innovative ways to solve the crises in our health care system. The decision puts the issue back to the election spotlight and to the people, where it should be, not with the courts. As for the law, the decision opens up debates about the expanse and limits of federal power, which will take years of litigation to define. Lawyers and law professors may be fascinated, but perhaps not so their clients and the law students.

Health Reform on Primary Care, Its Constitutionality

After 45 years, finally, significant health care legislation has become law. The law overall will improve American health care, and serve its purposes in improving access and lowering total costs (albeit more limited). I will discuss two aspects of health care reform: first, the law's impact on primary care and PC physicians; second, the law's constitutionality amid potential legal challenges.

The law will alleviate the shortage of primary care physicians, but will have negligible impact on the primary care system. The increased enrollment in health insurance will lead to greater demand for primary care, especially from new Medicaid patients. Furthermore, the government is adding incentives to medical school graduates to go into primary care, and existing physicians or medical entrepreneurs to do so. Thus, more primary care physicians will be part of the U.S. health care workforce, something urgently needed. On the other hand, existing financing mechanisms for primary care and the role of primary care in the provider and payer systems remain unchanged. Without reform from within, such as stronger gatekeeper models, greater care coordination, and chronic disease management, primary care will not undergo needed change as a whole. Perhaps the influx of physicians, increase in demand, and insurance reforms will have long-term beneficial effects on primary care, but much change will have to come from within.

Suits have already been filed alleging the unconstitutionality of the law, but the courts are highly unlikely to strike it down. The most contentious provision is the federal mandate on purchasing health insurance, something heretofore unknown in American law. The Supreme Court may grant certiorari, but will uphold the provisions for two main reasons. First, the Commerce Clause grants Congress much power and leeway to regulate economic activity that has even a slight nexus to "interstate commerce". Health insurance, along with its broad externalities, certainly falls under that umbrella. Second, the courts have given strong deference to legislative actions and policy, especially in the social and economic realms. The courts know they are limited in expertise in such broad areas, and lack the popular mandate found in the other branches. I think opponents may have a strong argument, especially using the due process clause and Tenth Amendment, but not enough for a winning one.

Yea or Nay on Health Care

How will health care pan out? This week will surely supply the answer as the House Democrats (no Republicans, essentially) debate on the Senate bill. They are looking for every possible means to expedite the passage and ensure they have a majority when voting comes. I believe that the Senate bill is a flawed bill, but still doable and ought to be passed. The question is whether the Democrats have the political acumen to get it through to President Obama's desk.

Several caveats will play into the final result. First, the old notion of states' rights has reappeared with increasing importance. Idaho just passed a law stalling health care reform in that state. Other states have threatened the same. Even if done inconspicuously, states and anti-federal lobbyists wield influence since state representatives, after all, compose Congress. Second, grassroots movements are having an effect. They are calling representatives' offices incessantly in support of (or in opposition to) the bill. Many rallies are scheduled here in the New York area. Finally, the Congressional Budget Office's final assessment of the total costs will also be important. Many senators are reluctant to support the bill because of potential costs. A favorable estimate from the neutral body will help spur passage, even more than any political-process concoctions the Democrats may conceive.

We will know in one week the future of health care reform. Much of it depends on political acumen, some on grassroots efforts, but most will come down to will. Can the Democrats will themselves through this difficult task and complete the journey? Their political livelihoods and our personal livelihoods both depend on it.

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Just a side note: think Jose Mourinho isn't tasting the sweetness of revenge after his Inter knocked his former employers Chelsea out of the Champions League? Say it isn't so - it was deserved and Jose must be enjoying it inside. Chelsea and its fans are wondering what might have been.

One last pull for health care reform

Tomorrow's bipartisan summit with Obama and leaders of Congress may well be the last chance for health care reform. Obama will unveil his health care plan, and the Congressional leaders will have the opportunity to voice their issues and concerns. Tomorrow is conducive to spurring the legislation in Congress because of the following: 1) the president is getting personally involved; 2) major leaders of Congress, not whole quorums, are present; and 3) the public will be watching. First, Obama should take a more active role in pushing for health care reform. Thus far, his hands-off, pragmatic approach has failed, and Congress needs someone to spur them to action. Second, dealing with leaders gives the president leeway and means to influence. He will not work directly with legislators who are at best indifferent, at worst worried more about their midterm elections. Third, the public finally can watch the health care debate live and in person. Knowing that their constituents and the American people are interpreting their every word gives the group members more incentives to not sit on the fence. Let's hope for meaningful accomplishments and results from tomorrow's meeting that will put health care back on the agenda.

Mass. upset more dire than it seems

For the Democratic Party, Scott Brown's stunning Senate win in Massachusetts was more than a setback; it was a debacle. For a long time, I believed that the Democrats were still strong politically, and the November elections last year were aberrations more due to the state of the nation rather than the party's malaise. Now, I stand corrected. First, Massachusetts is one of the most liberal states in the nation. It has been solidly - I emphasize solidly - Democratic for decades. For so many districts to vote Republican was a telling shift in the political climate. Second, the state of Massachusetts is less dire than many other places. The economy, for which many blame Obama, is rather healthy; health care reform remains popular among the residents. For so many to vote Republican underscores other tensions that have motivated the people. Third, Brown's late and unexpected surge was atypical. Coakley, a reliable and respected attorney general, lost to a dark horse, and Massachusetts hasn't been known to vote for dark horses, especially conservative ones. Indeed, his late surge characterized how quickly and decisively the mood turned against the Democrats. Fourth, Obama's late show of support for Coakley hardly mattered. That just underlined how little appeal and support Obama enjoys in Massachusetts, indeed the nation.

Is this the end for health care reform? It may well be so, especially in the Senate. While Brown may be new and lacks experience, he can throw his weight behind united Republican opposition, and thus kill any bill. I believe that health care reform is a part of the Democrats' defeat. Massachusetts' voters aren't against health care reform - they disapprove of how it is handled. For many liberals, they see Obama and the Democrats too willing to compromise. Anybody who fails to stand by hard principles will lose respect, from both supporters and opponents. On the other hand, many conservatives think Obama and health care reform is too partisan. They did not work with Republicans on the important issues, and more so, the bill threatened states' innovations, including Massachusetts's. Thus, what led to defeat was dual disillusionment from both sides: conservatives who found Obama and the Democrats too unwilling to compromise on important issues, and liberals who found them too willing. While trying to satisfy both, Obama and the Democrats achieved neither.

Democrat retirements may be an opportunity

Recent statements by two Democrat senators, Chris Dodd of CT and Byron Dorgan of ND, to abandon reelection bids have raised worries about the state of the Democratic Party. Many feel that the state of the nation, along with traditional White House-governing party's setback in midterm elections, will imperil many of the Democrat bills, including health care and climate change. I want to cast doubt on those predictions. First, Dodd, for one, is highly unpopular in Connecticut; thus, another challenger, such as the incumbent Attorney General, will be a better choice for the party. Dorgan and North Dakota represent the more difficult situation. Second, Republicans, too, are facing candidates retiring or abandoning reelection. I think the current climate and dissatisfaction among voters will affect Democrat and Republican incumbents alike. Third, and perhaps least latent, the Democrat retirements present an opportunity and impetus for the party to pass and enact legislation, including health care. The state of the party, with impending losses in Congress in the November elections, should spur current legislators, including retiring incumbent, and President Obama to pass a health care bill quickly. The uncertain political climate may favor the strong executive driving legislation through Congress and a lame duck Congress pressing to leave a legacy.

Health bill compromise - worth it or unprincipled?

Is the recent, modified version of the health care reform bill a worthy compromise aiming to save the effort, or abandonment of key principles? This is an interesting question (even going forwardwith later revisions) that deserves thought. The public option, long espoused by liberals, has been jettisoned in favor of a federal umbrella regulator (my vague sketch) that oversees private health plans. Will this arrangement be similar to the Mass Connector, with power to negotiate with health plans and physicians? Or will it be like the FDA, with token regulatory power over many industries? Remember, Supreme Court jurisprudence holds insurance regulation as a state power, i.e. not interstate commerce, so federal regulation is a step forward. But is it enough? Looking at the opponents of reform, it seems clear that opponents aren't seeking to overthrow the entire effort, but undermine it piece by piece. They hope to defeat reform by watering down its key elements, until the bill that gets passed will implement little substantial reform. Thus, is compromising on the public option, while remaining steadfast on allowing federal funds for abortion, the wrong focus for the reformers? Finally, expanding Medicare to 55 year olds is unwise. The system is already reaching insolvency, and added eligibility will only add to the demand for Medicare reimbursement. Just a thought - Medicare in its original form, enacted in 1965, has been viewed as placating opponents of reform while enacting token reform. Many historians view Medicare as the end of any hopes for national health insurance. Will this compromise repeat history?

Going forth on health care reform

After its narrow passage in the House, health care reform moves to the Senate, where the battle will get harder. Harry Reid, the majority leader, is holding onto a filibuster-proof alliance of Democrats and independents. Once the CBO releases its report on the projected costs of the Senate plan, expect much debate after Thanksgiving.

For now, four issues characterize health reform as it moves to the Senate:

1) Principles or Pragmatism - Two Democrats, Martha Coakley and Michael Capuano, have stated ultimata that they would not vote for any bills that prohibit abortion funding. While they ought to be applauded for standing by their principles, they should consider the impact of their decisions on the passage of the bill as a whole. The abortion question might be the biggest issue dividing Democrats, but how many will stand by their beliefs while jeopardizing the passage of a health reform bill?

2) Beware the Filibuster - Joe Lieberman's filibuster threat should not be taken lightly. His personal background and ties to industry will impact his decision, but the Democrats still may convince him to vote for reform. He, like many other independents, is wavering between support for and opposition to the health reform bill. The Democrats' support from independents like Lieberman will be the key to success.

3) The Specter of Cost - Cost, not access, will drive the debate. Many, including Democrats, are justifiably questioning the costs of health reform, especially adding new programs while failing to reform existing ones. Republicans and opponents are using cost as their principal weapon in defeating reform. Whatever bill proposed will provide access and everyone agrees that increasing access is desirable, but whichever bill potentially controls costs will win over constituencies.

4) The Lure of Time - Congress goes to holiday in late December, and midterm elections loom next November. Hence, health reform needs to be completed by the end of this year. Once 2010 begins, the representatives will have heard opposition from town meetings and incumbents will be thinking about reelection. Now is the time to get it done, although waiting for the Senate to produce a bill and reconciling it with the House's will take much time. Wait till next year?

Let's not get too bullish

Two recent pieces of good news - ok one to some, the other most likely to all - the Senate Finance Committee approved a version of a health care reform bill on Tuesday, and the Dow hit 10,000 today. A casual or even hardened observer is right to celebrate, but let's not get too carried away. On the former, the Senate Finance Committee bill apparently is a compromise between the reformers' most ardent demands and their opponents' hardened principles. It deserves scrutiny and I still feel that the question of the public option is left unanswered. Additionally, only one Republican on the Committee voted yes, which suggests that further partisan roadblocks in the main chambers are likely. On the Dow news, it is great that it finally recovered to 10,000, which certainly augurs a recovery en route. Nonetheless, crucial issues remain, notably the lingering effects of the recession and stock market collapse on many of Wall Street's biggest traders. We need to wait and see sustained increase in the Dow before believing in a more bullish stock market. Finally, the crucial index of unemployment is still high and growing. Overall, albeit not wanting to sound like a pessimist - I am not - but let's not read too much into the past two days of good news. Then again, if those tidings continue, party on into 2010!

Obama gives strong appeal for health reform

I just listened to President Obama's national address, and he impressed me much (ok, it's a tie now between him and Roger Federer's tennis). Obama successfully balanced a line between reason and emotion - reasoned argument for his plan with emotional appeals to Ted Kennedy and American history. He was comprehensive in outlining the key points of his plan and addressing the main controversies, although I thought he could have given a more detailed and less rhetorical response to some of the main criticisms, esp. regarding the public option. Overall, I thought the speech was very clear and comprehensible for the average viewer on TV, which is very important. The response from Congress was obviously mixed but Obama did well to acknowledge and reach out to key Republicans. I believe he has built a good foundation with tonight's speech and it will now depend on Congress and members of public, including us, to push health care reform to fruition.