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Category Archives: Supreme Court

Will We Get to Watch the Supremes on TV?

The Supreme Court is a fancy place. They do things with a strong sense of tradition and that most definitely applies to how they hand down their opinions and what information is made available to the public. It is relatively recently that they began releasing time-delayed audio recordings of oral arguments. Television cameras remain a no-no. I suppose the idea is that they want to be able to hear cases and deliberate without feeling scrutinized. Introducing the real-time effect of television could produce some sort of Hawthorne Effect. If the Justices know that America’s watching, perhaps they’re worried that they’ll rule differently than they otherwise would.

I have mixed feelings about this. On the one hand, I believe in preserving traditional institutions, and I don’t think that anything and everything needs to be televised. On the other hand, the outcome of this case has the potential to affect many Americans who are unlikely to ever read a majority opinion from the Court, but would certainly catch snippets on the tube.

Perhaps that’s why so many groups are asking the Court to allow television cameras in the courtroom for the first time. There’s the Association of Health Care Journalists, C-SPAN, the Radio Television Digital News Association, the New York Times, and most interestingly, Iowa Republican Sen. Chuck Grassley. My hunch is that their requests will be denied, but I hope I’m wrong, because I’d watch this case around the clock like it was the Casey Anthony trial.

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Supremes to Hear Case on Affordable Care Act

The legal challenges to the Affordable Care Act commenced just as soon as the bill became law in 2010. There have already been a number of lower courts that have ruled on the constitutionality of the law’s individual mandate, and I have written fairly extensively about these cases here, here, here, here, here, here, here, and here. Those links are in chronological order, and I’d suggest reading them if you need to get up to speed quickly on the issue.

More recently, the Court of Appeals for the D.C. Circuit ruled in favor of the individual mandate, and the decision is notable in that a conservative judge and Reagan appointee broke with the precedent of conservative judges ruling against the law. In fact, he was the second judge to do so. Jonathan Cohn has more of the details over at The New Republic as does Timothy Jost at the Health Affairs blog.

This decision was the prelude to the Supreme Court’s decision to hear the Affordable Care Act case early next year. In fact, they’re not only going to hear it, they’ve set aside a record amount of time for oral arguments–5 1/2 hours to be exact. The New York Times’ Adam Liptak has more.

Meanwhile, voters in Ohio passed a meaningless referendum rejecting the individual mandate. Why is it meaningless? Because if the Supreme Court finds the individual mandate unconstitutional, the Ohio amendment won’t be necessary, and if the Court upholds the mandate, federal law trumps state law, rendering the amendment useless. Which will it be? We’ll have our answer just in time for the election in 2012.

 

What If The Supreme Court Strikes Down the Individual Mandate?

Any ruling by the Supreme Court on the constitutionality of the Affordable Care Act’s controversial individual mandate isn’t likely for at least another several months, but it’s worth thinking about what might happen after the case is decided. The first scenario is easy: If the Court upholds the mandate, the ACA goes forward as planned to the continued objections of many conservative Americans and politicians. The second scenario is less clear: If the Court finds the mandate unconstitutional, do they find it severable from the rest of the law? If not, they’ll strike the whole ACA down. This seems like the least likely outcome. If, on the other hand, they do invoke severability, the ball is back in the White House’s court. The decision at that point would be whether or not health reform can be successful without the individual mandate.

The concern here is the death spiral first described by Nobel Prize-winning economist Joseph Stiglitz. In essence, if we don’t require everyone to buy insurance, then insurance will be disproportionately purchased by the sick, making it more expensive and leading many to discontinue coverage in a continuous cycle that drives the price higher and higher until no one can afford insurance any more and the system collapses. By contrast, getting everyone into the pool is seen as the only way to keep costs down and maintain the insurance system. So the question is: What happens if the Supreme Court strikes down the individual mandate? Does the Obama adminsitration wash its hands of health reform, proclaiming that it can’t be done without the individual mandate because costs will rise too rapidly and the insurance system will collapse, or does it forge onward and see what happens?

Option one is the safe bet if you believe that a bad status quo is better than a potentially worse change, but it’s absolutely terrible politics. It would be admitting defeat on one of the defining aspects of the Obama presidency. Moreover, it would have tremendous negative implications for the future of health reform initiatives generally. Option two looks good politically for all of the opposite reasons, but it could destroy the health insurance market and hurt Americans in the process. That’s bad leadership. While such action might lead to the type of catastrophic collapse necessary to precipitate true change, it would be incredibly painful.

New evidence suggests, however, that the pain might not be as great as many–myself included–fear. John Sheils and Randall Haught of the Lewin Group ran a simulation model to see what might happen to coverage and costs if reform went forward as planned with the exception of the individual mandate. Remember, the concern is that fewer people would be covered and health insurance premiums would increase. What they found is that, yes, compared to estimates under health reform with an individual mandate, health reform without the individual mandate would mean fewer people would be covered and insurance premiums would increase, but things would still be better than if we did nothing at all.

How much better? Well, without reform, they estimate that 51.6 million Americans would be uninsured. With reform, that number drops to 20.7 million. With reform, but without the mandate, their estimate stands at 28.5 million. Not too shabby. As for premiums, the authors estimate that eliminating the individual mandate will mean a 12.6% increase. Not a welcome increase, but not necessarily the kiss of the death spiral.
That said, other estimates by the Congressional Budget Office and MIT health economist Jonathan Gruber have not been as optimistic. The CBO expects that axing the individual mandate will mean 16 million fewer insured persons and a premium increase between 15 and 20%. Gruber puts the figures at 24 million fewer insured and premium increases on the order of 27%. Because of the sheer volume of people involved and the uncertainty of their decision making processes, it’s really hard to know who’s calculations are the most reasonable.

What you can count on is this: If the Court finds the individual mandate unconstitutional, the White House will have more actuaries and health economists crunching numbers than you can imagine. These latest results from Lewin suggest that even if the Court says no to the individual mandate, it shouldn’t necessarily mean the Obama adminsitration should give up on health reform.

 

The Commerce Clause and Legal Challenges to Health Reform

My friend, Mark Hall, the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law, has written a very thorough critique of the commerce clause as it relates to legal challenges to health reform. The great thing about what he has written is that it considers both sides of the issue in great detail. You don’t find that kind of balance very often. Click here to read it.

 

Repeal…..and Then?

Demands like this one for health reform to be repealed continue, but with at least one recent poll showing that repeal is less popular than you might think, and some solid data on cost as a barrier to access in this country, the Republicans have an interesting road ahead of them.

The system we had before health reform became law was simply not working. I think we can all agree on that. A significant number of people oppose “Obamacare.” I can understand that. But repeal doesn’t really solve the problem. Sure, if you think that health reform has or will actually make our system worse than it was before, it seems prudent to undo the legislation, but that brings us back to square one–a system that wasn’t working well for most Americans.

Repeal must only be the first step, to be followed by a far more important next step: How do we improve the health care system? In other words, if “Obamacare” isn’t a step in the right direction, what pray tell, is? This is the area where I’ve not seen much in the way of developed proposals. Sure, John Boehner announced a plan that would eliminate the individual mandate while preserving the new ban on pre-existing condition exclusions, but that only makes for good politics and terrible policy.

When one element of reform is popular and another element is unpopular, it makes people happy when you tell them that you’re going to keep the popular element and get rid of the unpopular one. The problem is that the two elements were purposefully designed to work in concert, according to economic theory and human behavior, to avoid some rather disastrous consequences. Unfortunately, most people don’t think through these types of things, preferring to stop analyzing the situation once they feel happy.

The result of this particular promise would be skyrocketing insurance costs. Why? Because many people would choose not to buy insurance until after they got sick. After all, they wouldn’t be required to buy it when they didn’t need it, and they wouldn’t be prevented from buying it just as soon as they needed it. This practice would undermine the entire principle of risk-pooling and uncertainty upon which the insurance industry rests. As a result, most of the people who bought insurance would be sick, and that would make coverage wildly expensive. John Boehner knows this, but he doesn’t talk about it on television because it wouldn’t be popular.

So, I’d like to see some substance. Call for repeal if you like, but show me your alternative plan for reform. That is, unless you think the system is doing just fine, in which case I’d love to see some data to support that assertion. Either way, I want to hear an explanation grounded in evidence, not just a collection of bullet points that cater to people’s feelings.

 
 

The First Verdict

I just wrote a piece about the challenges being mounted against the implementation of health reform by its opponents. One of those was that the issue could be decided in the courts. Well, last Thursday, the first judicial ruling came out. The case of Thomas More Law Center v. Barack Obama was decided by U.S. District Judge George Steeh, and he found that health reform–or more specifically, the individual mandate–was constitutional. (You can read his decision here.) As I explained before, if the individual mandate gets struck down by the courts, it effectively eviscerates health reform. Since courts tend to rely on precedent, this first “victory” is important, but it isn’t the final say by a long shot. A number of other District courts will rule, and this issue will most likely weave its way to the Supreme Court.

There are 9 justices there, and it will take 5 of them to decide that the individual mandate is unconstitutional. Judge Steeh’s ruling may or may not reflect how the Supreme Court will rule. The thing is, judges aren’t outside of politics. Sure, the members of the Supreme Court and District Courts are appointed for life, rather than elected. On the one hand, this means that they need not judge in such a way as to please the people. After all, justice is a stand-alone quality, right? Moral principles, for example, do not change based on popular opinion. The catch is to be found in that word “appointed.” The President has the job of appointing the District judges and nominating the Supreme Court justices (who are subject to Senate confirmation). It should be obvious that Presidents nominate and appoint judges who share their own political views (to the extent that such can be gleaned from past decisions and the like).

The judge who ruled in favor of health reform in Michigan was appointed by President Clinton. He sided in favor of the Democrats’ reform law. The Supreme Court looks different. Two were appointed by Ronald Reagan, one by George H.W. Bush, two by Bill Clinton, two by George W. Bush, and two by Barack Obama. If you’re doing the math, that’s five justices appointed by conservative presidents and four appointed by liberal presidents. That means essentially that one justice–just one non-elected official–could determine the fate of health reform in this country. Most would say that that person is Justice Anthony Kennedy, who is traditionally considered the swing-vote in 5-4 decisions. Does the result in Michigan really mean anything? Let’s hope Justice Kennedy thinks so.

 

Let’s Place Bets On Repeal

I have it on good authority that there are basically three outcomes that the health reform law may experience in the future (other than becoming a resounding–or mediocre–success). They are:

1. The Republicans get elected to a veto-proof majority and repeal the law in its entirety.
2. The Republicans get elected to a simple majority and are able to attack the law by reducing funding for a number of its provisions.
3. The lawsuits being brought against the law are successful and the individual mandate is found to be unconstitutional. Consequently, the entire thing unravels.

As to Option 1, I don’t see it happening. Is the GOP going to pick up seats in November? It would be historic if they did not. Will they pick up enough seats to override Obama’s veto and repeal health reform? I doubt it. Even if they did pick up the necessary seats, they might suddenly find out how hard it is to hold the votes together, especially considering that repeal isn’t going to be any easier politically than passage was. The obstacles here are huge. I’ll do a little forecasting, and say there’s about a 1% chance that this happens.

Option 2 is much more likely, because all that would be needed is a simple majority in both chambers. I put the likelihood of this one at about 30%, and that number would get greatly revised upward or downward after the election. After all, if the GOP can throw a wrench in the works without repealing reform, the end result will be pretty much the same, but with one major difference: Option 2 lets them say “Hey, Look! The Democrats’ health reform didn’t work!” They don’t have that luxury if they repeal the thing.

Lastly, Option 3. The courts are unpredictable. After all, this is the kind of case that would make its way up to the Supreme Court, and then you’re only talking about winning five votes in a best-of-nine series. (Sorry, the baseball postseason just started.) I’d give this one about a 20% chance of happening.

If you’re tracking with me and doing the math, that means I put the likelihood of health reform facing a serious challenge to implementation at 51%. Again, that’s without knowing how the elections will turn out. Still, the threat is quite real. Equally as real is the threat posed by the GOP’s proposed alternative to health reform as outlined in the Pledge for America. (As another aside, I can’t wait until another 16 years go by and we get the Promise to America to make the hat-trick with the Contract with America. But Washington never recycles ideas.) Others have had some good takes on the problems with what is being proposed. You can read them here, here, and here.

 
 
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