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June 23, 2012 9:18 AM If the Supremes strike down health care, what next?

By Kathleen Geier

Almost certainly, the most important political story in the country that will occur next week will be the Supreme Court’s ruling on the constitutionality Affordable Care Act. It’s supposed to come down on Monday or Thursday, and the activist lists I’m on are abuzz with plans to take to the streets once the verdict is in.

What will actually happen is pretty much impossible to say. Early on, experts scoffed at the possibly of the Supremes striking down the ACA, but the oral arguments seemed to have changed a lot of folks’ minds. My brother the lawyer is of the view that a Court that was capable of handing down the Citizens United ruling is capable of sinking to untold levels of depravity. Concerning the possible ACA verdict, at this point, to quote the old Hollywood saw, nobody knows anything.

If the Act, or significant parts of it, are struck down, there will be much to discuss and analyze: what impact the Court’s ruling will have on the election this fall, how progressives should carry on the fight for universal health care, what — if anything — we can do about the disturbingly far-right extremism of the current Court, etc. One question that particularly interests me is, assuming that the Act is struck down, should the states enact their own version of ACA? Just this week, in my home state of Illinois, I read this article about a group of health care advocates and small businesses who are urging legislators to create a statewide health insurance exchange. And certainly, if the Supremes overturn all or major parts of the ACA, it seems logical to look to the states to try to enact some version of it.


But enacting ACA at the state level could be problematic. The states would need federal funds to expand Medicaid and subsidize health care premiums for uninsured folks who can’t afford to buy insurance. A universal health care program at the state level with a mandate could work reasonably well, or would at least be a decided improvement over the status quo — as Massachusetts’ plan is, for example. But a plan without a mandate — such as the one in Washington state — would be sure to fail over the long run. The reason for this is simple: if there’s not a mandate, the only people who would purchase the insurance would be sick people, which would in turn drive up the cost of insurance so much that eventually no one would be able to afford it, and health insurance companies would go out of business (or, as happened in Washington, move out of state). The basic model of health insurance requires that healthy people buy insurance, because that in effect subsidizes the cost of insurance for sick people.

At the federal level, the alternative to trying to build a universal care system would be to gradually expand access until you have most people covered. Perhaps you would keep the part of ACA that allows young people to stay on their parents’ insurance until they’re 25. Maybe the age for eligibility for Medicare would be lowered (though that’s certainly not what DC elites of either party seem to want). Perhaps COBRA could be extended or insurance for kids could be expanded.

Ultimately, though, universal care at the national level is the vision that is most rational economically, and also the most just. Unfortunately, American institutions (H/T Lemieux) have long thwarted the progressive dream of a comprehensive national health care system. And frankly, I’m skeptical whether, even if the ACA is upheld, its major provisions will take effect and it will work out as planned. The right is prepared to manipulate our political institutions to their benefit and fight tooth and nail to prevent the ACA from being a success. But at this point, barring as always my fervent hope of some radical reordering of society that makes previously undreamt of things possible, it’s the best hope we’ve got. So I’m hoping like hell Anthony Kennedy doesn’t totally lose his mind over this one. A slim reed, I know, but there we are.

Kathleen Geier is a writer and public policy researcher who lives in Chicago. She blogs at Inequality Matters. Find her on Twitter: @Kathy_Gee

Comments

  • stormskies on June 23, 2012 11:08 AM:

    Within all this it is important to know that Congressman Jim McDermott from Washington State has proposed a law that would allow federal money to be used by any state to start their own single payer system like the one that Vermont has. Vermont has done this on their own without federal money, and, yep, the insurance costs per citizen are in fact falling.

    And, of course, our ever helpful corporate media has snuffed out this story of McDermotts proposal. If allowed it would solve so many of our health industry problems. It would decrease how much money the insurance companies can make on the back of sick people. So, of course, this is why the corporate media is doing all it can to ignore this story.

  • Diane Rodriguez on June 23, 2012 11:16 AM:

    It seems more than a little hypocritical when the US decries selected human rights violations around the world. We tolerate the “subtleties” of denying health care. One of the milestones of making it out of 3rd world status is providing health care to your citizens. It is out of reach for an increasing number of Americans while the cost burden shifts to those of us who can still afford it. On every level: human rights, accessible care for everyone and increasing costs make universal health care a no brainer. No brainer - I guess that explains it.

    As for Justice Kennedy. He has never been interested in developing his legal chops, which weren't top tier to begin with. Kennedy's main concern is that he holds an enormous amount of power as the deciding vote, which brings him the level of public attention he could never attract through legal brilliance. Prior to his Supreme Court appointment, he mostly hung out with the good old boys at the Sutter Club in Sacramento – no women of course.

  • Mudge on June 23, 2012 11:16 AM:

    Also keep in mind that absence of a mandate means that not only can healthy young folks avoid paying for health insurance, but if the law requires insuring the customer with a pre-existing condition, they can avoid insurance then get it only when they become sick. This is a doubly bad whammy for costs.

  • John Petty on June 23, 2012 11:18 AM:

    Of COURSE they're going to strike it down. People who think there's some doubt remind me of the very naive Al Gore in 2000, who actually thought his arguments had a chance with the Supreme Court.

    The arguments don't matter. They'll find some reason.

  • c u n d gulag on June 23, 2012 11:34 AM:

    We all know how the "Fascist Four," "The Four Justices of the American Apocalypse," will vote.

    So, we're dependent on a sense of rationality, and societal responsibility, from Judge Kennedy.

    A man who's an attention whore, and who loves to play like he's a Hamlet in judicial robes.

    So, while most of the MSM and the nation knows which way each of the other irrational v. rational 8 SC Judges will vote, Kennedy can muse and waffle - trying to appear like the lone independent player on the court, even though the vast majority of the time, he agrees with the "Four Frothing-at-the-mouth Conservative Fascist Fools."

    What can we expect from a man who wrote what may be the single most feckin' naive sentence ever written by an adult male, with College and Law Degrees, and decades of experience as a judge?
    Here it is, with a brief overview:

    "In Citizens United, Kennedy resolved what appeared to be an empirical question about independent spending and corruption: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

    Let me repeat that for you:
    “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

    No, there's absolutely NO historical evidence for that, even long before something called a "corporation" existed - going back to even before the Ancient Sumerians, Egyptians, or Chinese!
    NONE whatsoever!!!
    MONEY NEVER BOUGHT POWER!!!!!

    YEEEEEEEEEESH!!!!!!!!!!!!!!!

    Still have any hope for Kennedy to come out on the side of the ACA, and/or, especially, the mandate?

    My guess is that the decision will be 5-4, Irrational v. Rational, to keep the ACA, but disallow the mandate.

    This will allow R's to run against "Obamacare," even though it cannot exist, anywhere near as-is, without a universal mandate.
    They can fume and bluster, and shake their fists with rage, at almost completely impotent health care reform.

    ANY and EVERY thing to FECK Obama and the D's!
    That is, and will be, the lasting legacy of THIS SC.

    It will serve as a black eye for generations, if this country keeps Mitt and the R's away from total power this November.

    If Mitt and the R's win, then this SC will serve as THE model for future ones to follow.

    And if you say to yourself, "WOW! For a strict “Constructionist,” “Non-activist,” Court, they sure are ‘active’ in ‘de-construction!’

    And think, "Why are they acting that way?"

    The answer is, to help do any and every thing possible to convert this country, where church and state are separate, and we have a Representative Democracy, into a Theocratic Fascist State.

    Scratch a Conservative even just a tiny bit, and you'll find a true Fascist underneath!

  • stormskies on June 23, 2012 11:36 AM:

    as if we needed more evidence as to the utterly corrupt nature of this "Supreme" Court ...


    Analysis: Supreme Court backs Chamber of Commerce in every case

    By Kay Steiger

    Friday, June 22, 2012 16:51 EDT

    Just in case you needed any more proof that the Supreme Court was taking a hard-line dash to the right, a new analysis by The Constitutional Accountability Center, a think tank and law center “dedicated to fulfilling the progressive promise of our Constitution’s text and history,” found Thursday that so far this term, the Supreme Court has voted in favor of the Chamber of Commerce’s position in every opinion they’ve issued.

    “Without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first ‘perfect’ Term before the Supreme Court since at least 1994,” a blog post written by the Center’s Neil Weare said. Indeed, a chart showed that the Chamber of Commerce’s average is getting better over time, going from 43 percent of cases won under Chief Justice Warren E. Burger’s court (1981-1986) to 56 percent of cases won under Chief Justice William Rehnquist’s court (1994-2005). So far under Chief Justice John Roberts, which began in 2005, the Chamber has won 68 percent of the cases it’s taken before the highest court.

    The term isn’t over yet, so we’ll have to wait and see if the Chamber will maintain it’s unbelievable winning streak.

  • Hedda Peraz on June 23, 2012 11:41 AM:

    States Rights once again comes to the rescue!
    McDermott speaks, Vermont acts.
    Every state issues driver licenses, without federal oversight.
    Some states require you to pass a test, others merely take your pulse. But every state recognizes licenses from every other state.
    Does a Vermonter's insurance card get him healthcare on a visit to New York? Probably. In Arizona, must he pay with chickens?

    States CAN do many things on their own, (sometimes with federal a$$i$tance), but others- I'm lookin' at YOU, Lone Star- choose to abrogate their responsibilities to their citizens in the name of greed.
    Good thing we are still allowed to choose which state we call "home".

  • j on June 23, 2012 12:05 PM:

    I hope I will be forgiven for making a comment on another subject. Today would have been the 100th birthday of
    Alan Turing the brilliant man who at Bletchly Park in Surrey invented the first computer, cracked the 'Enigma'
    code, which was one of events that led to the end of World War 2. In 1952 it was discovered that he was a gay man which in England was a crime at that time, he was given the choice of going to prison or taking treatments to 'cure' him. He took the treatments/injections etc & developed breasts. In 1954 he killed himself.
    This is an example of the world losing a brilliant mind due to prejudice and ignorance,let us hope we soon have no prejudice in this country!

  • Shane Taylor on June 23, 2012 12:12 PM:

    I get how the individual mandate is necessary to deal with free riding, which is vital for the long-run viability of health care reform. I do not get why progressives aren't taking the same no-nonsense attitude toward price discrimination, which is also a threat to *affordable* care.

    http://agonisticliberal.com/2012/02/09/the-healthcare-is-too-damn-high/

  • Anonymous on June 23, 2012 12:18 PM:

    j-

    "Because fanaticism and ignorance is forever busy, and needs feeding."

    - Henry Drummond in "Inherit The Wind"

  • TCinLA on June 23, 2012 12:43 PM:

    I pride myself on being a political realist, but I never really thought we would get to the point we are with the judiciary.

    As I have been arguing over on another progressive list, Goldwater became the GOP candidate in 1964 due to the fact that over the previous 6 years, the right wingers had taken over many local party organizations around the country. After the defeat of 1964, they didn't go away. They doubled down and renewed their local effort. In 1968 Nixon became the GOP candidate because he could go to those Goldwater people and remind them he had been the only "mainstream Republican" to campaign for Goldwater. He got their support and their votes at the convention. These people have never given up in the past 52 years. They wake up every morning asking themselves "what can I do today to advance the cause?"

    In the meantime, a good 80% of those political activists I knew on the Left back in the 60s are either apolitical or have become Republicans. As Phil Ochs said to me in 1966, "the day after the Vietnam war ends, the American Left will end." Until recently, one only saw most "progressives" get active every four years over a presidential campaign, as if nothing else mattered. I know former YAF types who were active in college 45 years ago who have been active ever since, because the right built institutions that allowed that commitment to continue. I can think of only a very very few from the Left with a similar resume.

    And progressives look at the coming events this week and wonder how the hell it happened.

  • JM917 on June 23, 2012 12:47 PM:

    My question is rhetorical at this point, for we'll probably get the answer next week.

    If the supremos cut down the ACA on grounds that the mandate is an unconstitutional infringement on individual liberty, where will that leave Massachusetts and Romneycare? Presumably if it was unconstitutional for Congress to impose a mandate on the American people, it would be just as unconstitutional for Massachusetts to do the same dastardly thing to residents of that state.

    Such an outcome would, of course, leave Romney in a tight spot. He'd better not exult too much, or he'll find himself being blamed as a co-conspirator (with Ted Kennedy) in forcing the mandate on poor Massachusetts.

    Or will the supremos find a way rule that mandates are unconstitutional when imposed by Democrats at the national level but OK when they are imposed at the state level by Republican governors (who happen to be GOP presidential candidates)? Maybe threading that needle is what's taking those five old metaphysicians so long.

  • jjm on June 23, 2012 12:57 PM:

    At this point, I feel completely indifferent. The people voted their representatives, they didn't stick by them after they crafted this law, and so the people will lose out. I couldn't care less if they are so stupid as to be swayed by propaganda bought and paid for by senile paranoid old billionaires still fighting 'communism' after all these years.

    If it does become a state-by-state thing, though, with other states following Vermont's intelligent lead, don't you imagine that the insurance companies would immediately sue those states for pre-empting federal laws? (I'm assuming McDermott's bill has zero percent chance of becoming law.)

    I mean, the business of America is business, right? And once you make those businesses into your rulers at every level, you cannot fight back. I see this morning that the state Supreme Court has ruled that California cannot require banks to lay out the actual fees and costs of those "convenience checks' they send you in the mail, because it pre-empts federal laws. Splat!

    The only thing I could see is for doctors/hospitals/other providers to group together like Kaiser and offer people complete coverage for a monthly fee. That way they can cut out the administrators and kill off insurance companies.

    Though of course, the insurance companies would immediately go to the Supreme Court to outlaw these organizations, too

  • Mimikatz on June 23, 2012 1:26 PM:

    My understanding is that even if the federal gov't can't enact the mandate because the commerce power doesn't extend that far, nevertheless states could under the 10th amendment because it isn't a violation of a federal right. States mandate all sorts of things from education to vaccinations.

    Kaiser-type organizations are the best solution short of single payer, although Kaiser is pretty expensive on the individual market. State-run exchanges would be better. We could have a Darwinian selection with longer life expectancies in blue states. Come to think of it, I think we have that already.

    If roberts and Kennedy won't vote to uphold, I do hope they invalidate only the mandate, as that will be the worst for insurance cos. And what if they invalidate Medicaid? Wasn't that involved in one of the cases? Or was it just theMedicaid extension? I bet Thomas, Scalia and Alito invalidate that too, taking us ever closer to he Middle Ages.

  • schtick on June 23, 2012 1:45 PM:

    As soon as people realize that health insurance companies are not interested in our health at all, then maybe, just maybe, they will demand universal healthcare. If you read posts about healthcare and benefits of any kind, it all amounts to people being upset that someone may be getting benefits that they won't.

  • spiny on June 23, 2012 2:11 PM:

    As hard as it is to believe, most state legislatures are even more on the take than our congress. Here in California, the one state you would think that would be working towards health care reform, a few corrupt democrats working with the Republicans managed to throttle a reform initiative. As long as money rules politics, reform of the system is going to be hard to accomplish.

  • Doug on June 23, 2012 7:12 PM:

    Since we don't know what the decision will be, it IS sensible to look at worst-case scenarios and plan appropriately. Therefore the following:
    Striking down ONLY the mandate isn't going to happen. That would bankrupt the HCI companies. We can rule that out right away.
    Striking down the ENTIRE ACA would be a political disaster for the GOP and the right wingers on the SC definitely know THAT, as well. They're NOT going to give Mr. Obama and the Democrats an issue to run on in November, especially an issue that could swamp the Republicans in the elections.
    All the above leads me to believe that the SC will NOT find the ACA un-Consitutional. Nor will it find the mandate un-Constitutional.
    Since, however, I'm not ALWAYS correct in my predictions, there's also this to think about: IF the SC SHOULD find the ACA in toto or just the mandate un-Constitutional, it won't help the GOP in November. The parts of the ACA that have already come into effect are popular. In the ACA, the popular parts are dependent on enlarging the pool of those insured to prevent bankrupting the HCI comapanies. Remove the "pool" and you have to remove the popular parts as well. Or find another system that covers those in the "pool".
    A large majority of the populace want HC "reform". Most, if not all, of the opposition to the "mandate" has been ginned up by the GOP. Should the SC decide against the ACA in its entirety (really, their ONLY option) that leaves the Democrats the opportunity to place an expansion of Medicare, aka "single payer", in their platform.
    NOT something the GOP wants to fight against in November, I should think...

  • mfw13 on June 23, 2012 9:15 PM:

    Here's the thing....I'm a liberal and an Obama supporter, but even I think the mandate is unconstitutional.

    Since when is it ok for the government to tell me that I have to give my hard-earned $$$ to a private, for-profit, company for a service I may or may not want?

    I'd have no problem with a mandate if the system was single-payer or non-profit, but I'll be damned if I'm going to let the government force me to give my $$$ to a for-profit company whose sole purpose is to enrich its shareholders!

  • Snarki, child of Loki on June 23, 2012 10:16 PM:

    mfw13: please start organizing a non-profit healthcare co-op. I'm sure that *many* people would prefer it to the profit-gouging health insurers.

    ACA just requires you to have coverage. It doesn't say *how*. Employer provides? Okay! VA? Okay! Medicare? Okay! etc.

  • c00p on June 23, 2012 10:52 PM:

    Kennedy is a slim reed, and the USA is, to quote the Hebrew prophet, a "broken reed." Or, to change metaphor, all hat and no cattle. We rank below every other industrialized nation on almost every scale by which quality of life is assessed, but continue to boast about being the greatest nation on earth. We are humbug and hokum, except in one field--the gathering and amassing of material wealth. Funny, isn't it then?, that those who claim to be most truly American are also those who claim to be most spiritual.

    As for Kennedy and his colleagues, I've decided not to refer to them anymore as justices, because they do not dispense it. They are judges and nothing more. They do not deserve the more "exalted" title.

  • Gary Goldberg on June 24, 2012 12:37 AM:

    If the ACA is overturned there should be a ton of pressure on Justice Ginsberg to retire immediately so President Obama can nominate a progressive liberal to replace her.

  • mfw13 on June 24, 2012 1:03 AM:

    Snarki,

    The point is, what if I don't want coverage? For plenty of young healthy people, opting not to have health insurance is a completely rational choice. Likewise for people who are wealthy enough that they can afford the financial shock of an unexpectedly illness or hospitalization. And given that many people's health-care problems are directly attributable to their poor personal choices (i.e. smoking, drinking, eating unhealthy foods), why should the government be allowed to forced me to subsidize their health-care expenditures? And don't kid yourself....the ACA may "only" require you to have coverage, but in many states, your only coverage options will be from for-profit companies.

  • trog69 on June 24, 2012 3:54 AM:

    mfw13, you may be a "liberal" but you sure are a greedy, "I got mine; screw you" one. I'm not going to explain the rationale for young, healthy individuals to be in the insurance pool, because you've already shown you just don't care about the rest of society. This is part of the reason why unions are decimated and almost gone completely. No longer does every worker realize that they must sometimes sacrifice a bit of themselves for the good of the whole.

  • James Wimberley on June 24, 2012 5:55 AM:

    I just beat you to the meme on my blog:http://www.samefacts.com/2012/06/constitutional-politics/aca-and-federalism-a-bleg/
    My idea was that the state mandates would just be a patch to the surviving portions of ACA. I don't think it's very likely that the Supremes will sweep the whole ACA away as you envisage, rather than just crippling it by killing the mandate. But as Kevin Drum points out, the death spiral of adverse selection is a slow one; and deadlock in Congress will prevent either repeal of a fix at federal level. So state-level patches look a real possibility, and the insurance industry would throw its considerable weight behind them.

  • DKDC on June 24, 2012 10:45 AM:

    mfw13:

    The mandate is really just an issue of semantics. Look at these two scenarios and tell me what is the difference other than the words we choose to describe them.

    1) The govt says you should have health insurance. If you refuse, then the government requires you to pay a fine to the government.

    2) The govt wants to promote home ownership. If you don't borrow a bunch of money from a bank for a house, then you have to pay higher taxes to the govt because you don't get the mortgage interest deduction.

    What's the effective difference between issuing a fine because someone doesn't buy insurance and charging someone higher taxes because they don't take out a huge home loan? If ACA was written in a way that everyone's taxes were nominally being raised to pay for it, but we gave a tax credit to everyone who had insurance, would that be constitutional?

  • Gingerpye on June 24, 2012 12:25 PM:

    mfw13, young healthy adults are just a bad car accident or early cancer diagnosis away from being young sick adults. The point is nobody knows when they're going to need insurance and the ACA is a way to get the young healthy adults into the pool so that when they do need it, it's there (and yes, until they do need it they're subsidizing others, but so what? At some point somebody else will be subsidizing you unless you plan to make it to 80 with no need for health care). You can't buy it after you need it. Your attitude is very short sighted.

  • David Martin on June 24, 2012 4:49 PM:

    Even if the ACA is upheld in its entirety, Florida will not cooperate with the federal government. The Republican majority in the House that's expected for next year will presumably bar federal spending to implement the ACA.

  • Anonymous on June 25, 2012 8:08 AM:

    trog69,

    I care plenty about the rest of society (I'm an underpaid public-school teacher, a union member, and a regular volunteer for Habitat for Humanity), but that doesn't mean that I want the government telling me that I have to give my hard-earned cash to greedy, for- profit, billion dollar corporations.

    If you read my original post, I state that I would be perfectly fine with the individual mandate in the context of a single-payer or non-profit based health care system. I just don't want the government telling me I have to give my $$$ to the greedy Aetna's and UnitedHealthcare's of the world.

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  • trog69 on June 26, 2012 6:54 AM:

    mfw13, I am sincerely sorry for my comment to you. Obviously I must have only read the first few words, because your entire comment is certainly reasonable and I agree that the mandated payments to corporations that have already shown a complete absence of responsibility to their customers is frightening.

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