Health Care: Overhaul or Roadkill?

This summer the U.S. Supreme Court decided a case comparable to Brown v. Board of Education (1954) or Marbury v. Madison (1803) because of the political skill of the Chief Justice.  In National Federation of Independent Business v. Sebelius (2012) involving the Patient Protection and Affordable Care Act (PPACA) (2010) dubbed “Obamacare” by critics, the Supreme Court upheld expanding federal power over health care reform.

Chief Justice John Roberts was a swing voter (one whose vote is pivotal to a decision) and he surprised everyone in his 5-4 opinion which supported both conservative and liberal views.  The PPACA requires an “individual mandate”—persons must buy health insurance or pay a penalty.  Congress justified the law under its Commerce Clause authority (the ability to regulate commerce among the states) arguing that the failure to buy health insurance causes substantial economic disruption.  Roberts, along with four conservatives including Justice Antonin Scalia held that “failing to buy” insurance was economic inactivity that Congress could not regulate. Roberts parted with conservatives, however, and agreed with four liberal justices that the penalty for not purchasing health insurance was a valid tax under federal taxing and spending authority.  Roberts also disagreed with the liberals that the federal government may penalize states only by withholding new funds, rather than withholding all monies–giving conservatives an effective nullification tool that 26 Republican-dominated states can use to avoid federal compliance.

The reaction in Texas was swift, and critics and candidates alike have vowed to make it an election issue.  The law substantially increases Medicaid to cover previously uninsured persons and requires employers with 50 or more employees to provide health care, and it also gives subsidies and tax benefits to those in insurance exchanges.  These agreements allow small businesses to pool their labor force with other small businesses to do what large firms do—get better choices and lower prices for employee coverage.  Conservatives argue this is an unprecedented and unconstitutional expansion of federal power, violates principles of federalism (health care has been traditionally regulated by the states), interferes with states’ rights, and harms the economy because individuals and small businesses cannot afford it.  Liberals argued it was necessary because of problems in the insurance markets and because of the disruption to the economy because of skyrocketing health care costs.

If Texas participates–as the second most populous state with the largest percentage of uninsured residents (approximately 24% or 5.6 million people)–it could help bring down premiums. Critics argue that 1.7 million Texans need coverage by 2014 meaning increased workloads and raises concerns about how to implement the programs.  PPACA supporters argue Texas (ranked 50^th in the country for health care) needs the $70 billion in federal aid.  Consistent with Governor Rick Perry’s states’ rights ideology (the federal government should leave the states alone), the former presidential candidate has already informed the Secretary of Health and Human Services Kathleen Sibelius that Texas will reject federal monies. Republican Tea Party candidates like Ted Cruz are vowing to repeal the law if elected.

Why would a conservative like Roberts vote to support a liberal law? Perhaps Roberts’ exercised judicial deference toward the elected branches of government by deferring to the elected officials who passed the law.  If he had not, it might have been “judicial activism” (actively inserting ones’ own policy preferences into a legal dispute), and for conservative Roberts, inconsistent with his ideology.   Perhaps he was concerned about the court’s legacy and legitimacy if he voted conservatively. Or maybe the clue to the Chief’s motivation is in his opinion—that he hopes to engender a national debate about health care for the 2012 elections.

“The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express an opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

We shall see on November 6, 2012.