The ACP Advocate Blog
by Bob Doherty
Wednesday, February 2, 2011
Confusion rules the day!
A Florida’s judge’s ruling that the Affordable Care Act (ACA) is unconstitutional doesn’t resolve the underlying constitutional issue (which will ultimately have to be decided by the U.S. Supreme Court) but it has introduced new uncertainty for the $2.3 trillion health care industry, and emboldened the law’s critics to push even harder for repeal (not that they weren’t trying already).
The Wall Street Journal’s health blog reports that “states and companies that are supposed to be implementing the law trying to figure out what to do next. The WSJ reports that the 26 states that are parties to the suit are considering whether to ask the Supreme Court to take up the case now, before it has fully wended its way through the legal system. The New York Times quotes the governor of Florida as saying that until the fate of the law is clear, ‘we’re not going to spend a lot of time and money’ to implement it. Other states, even if part of the suit, will move ahead, the NYT says.” The WSJ also reports that most health care companies plan to “stay the course” and continue to plan for the law’s implementation. Meanwhile, the Obama administration says that the judge’s ruling will have no effect on the implementation of the law or the requirement that states (including those who brought the suit) comply with its mandates and claims that most constitutional experts agree with the administration.
Now, I am not a lawyer, so I don’t have any expertise on the legal arguments over the ACA’s constitutionality. For those of you who want to hear more about the constitutional questions from people who might actually know what they are talking about, I recommend this Health Care Blog post from attorney Mark Hall, a critic of the Florida judge’s ruling. He notes that “At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate” (Judge Vinson concluded that they would not have approved of it) but “the same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals.” The Washington Post’s Ezra Klein – a supporter of the Affordable Care Act – has posted an excellent overview of what legal experts are saying about the ruling, pro and con, including a link to a posting that argues Judge Vinson ruled correctly.
What I am qualified to talk about is the potential impact of the ruling, especially in states that decide that they no longer need to take the steps needed to set up the health exchanges. If the Affordable Care Act, in whole or in part, is later upheld by the Supreme Court, say a year from now, the states that made the decision to forgo taking steps to comply with the law’s requirements, in the hope that it would all go away, will be at a serious disadvantage. The ACA requires that states have established the framework for the health exchanges by January 1, 2013, or the federal government can step in and run them. States that have been planning all along for the implementation will be in a much better position than those that did not. The irony, then, is that the states that stop their efforts now to set up the exchanges, based on Judge Vinson’s ruling may be inviting a federal “government-run” take-over of their exchanges! Sure, their gamble could pay off (at least in a political sense) if the Supreme Court decides the ACA—or perhaps more likely, just the individual insurance requirement—is unconstitutional, but that is a pretty big gamble to take for their residents. Meanwhile, states that moved forward, despite the legal uncertainty, will be in a much stronger position to provide affordable coverage to their residents without opening the door for the federal government to run things.
But the greatest risk is to most of the 32 million people who will get health insurance under the Affordable Care Act but now could find it slip away if the Supreme Court finds the ACA to be unconstitutional, or if the court invalidates the principal mechanism to get people covered (the requirement that everyone participate in the insurance pool, or pay a small fine). I have yet to see a proposal from critics of the ACA that would get everyone covered without some mechanism to bring everyone into the system.
Instead of an individual mandate, you could automatically enroll everyone in a public program like Medicare or Medicaid, which will almost certainly pass constitutional muster because it is established law and precedent that people are required to participate in Medicare Part A and Social Security. It is precisely to avoid such an outcome that the individual mandate was originally proposed by conservative theorists like the Heritage Foundation!
But if the critics of the ACA now don’t want to automatically enroll people in a public program, or require that they participate in private insurance as proposed in the ACA, how then would they ensure that everyone has affordable health insurance coverage? Sorry, folks, selling insurance across state lines and offering more health savings accounts isn’t going to do it—such approaches would cover at most three million people who now lack health insurance, according to the CBO.
I don’t know how the Supreme Court will answer the constitutional question. But I do know that if it is found to be unconstitutional, the United States will have to find another way to bring everyone into the pool (Medicare for all?). Or accept that the United States, still the richest country in the world, has decided instead to allow tens of millions of its legal residents to go without health insurance, knowing that many will live sicker and die younger as a result.
Today’s questions: If you don’t support the individual insurance requirement and/or believe it is unconstitutional, how would you propose that the U.S. ensure that all legal residents have access to affordable health insurance? Or do you think it would be okay to leave tens of millions without health insurance?
About the Author
Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog
Email Bob Doherty: TheACPAdvocateblog@acponline.org.Follow @BobDohertyACP
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