Monday, March 26, 2012

Prepare yourself for the great American health care reform "debate"

I suspect that the political news this week will be consumed by the debate at the Supreme Court about health care reform. Its probably a good thing that we get it all out now - but frankly, I'm not looking forward to the spin that is sure to ensue. The reality is that the real news won't happen for months...the actual ruling from SCOTUS. And in the meantime, the pundits will have a heyday predicting the outcome and spinning those meaningless predictions ad infinitum.

So I've hesitated to read much in the lead-up because it will all be a test of mental gymnastics for awhile now and I simply am not up for the hysteria.

But this morning I decided to take a look at Ezra Klein's column and found a very helpful primer on what the issues are by Sarah Kliff. I hadn't seen it all broken down this succinctly before so I thought I'd share the whole thing with you.

Apparently there are 4 arguments in the case - each to be heard separately.

Anti-Injunction Act

What it is: The Court opens its oral arguments with a debate over whether it can even issue a ruling on the Affordable Care Act since its penalties for not carrying insurance have not come into effect yet. Under a law passed in 1867, the Anti-Injunction Act, a tax cannot be challenged until someone has actually had to pay it. Health reform’s penalties don’t start until 2015.

What they’ll argue: One weird quirk of this provision is that neither the defendants or plaintiffs think it applies: Both sides think the Court should be able to rule right now . So the court appointed an outside lawyer, Robert Long, to argue on their behalf. Long will likely look to the Fourth Circuit Court of Appeals for precedent. It ruled, in September, that the Anti-Injunction Act prevented it from issuing a ruling on the health law.

When it happens: Monday, March 26, 10-11:30 a.m.

Why it matters: The Anti-Injunction Act gives the Supreme Court an opportunity to put off its decision for at least three years, potentially diffusing the law slightly as a 2012 election year issue. This could be a mixed-bag for health care supporters: On the one hand, it gives the law three more years to be implemented. On the other, it would still make the law’s fate seem uncertain, and likely extend the national debate around the Affordable Care Act.

The individual mandate

What it is: The most-contested part of the health reform law, the Affordable Care Act’s individual mandate requires nearly all Americans to carry health insurance. The legal question centers on whether such a regulation is permissible under the Commerce Clause, which allows the federal government to regulate interstate activity.

What they’ll argue: Health reform opponents contend that the decision not to do something — namely, not buy health insurance — is economic inactivity, rather than activity, and therefore not a behavior the federal government can regulate. Health reform supporters argue that the decision to not purchase health insurance has an economic effect. An individual without coverage, for example, may not have the money to pay for an emergency room visit, sticking hospitals or taxpayers with the bill.

When it happens: Tuesday, March 27, 10 a.m. - 12 p.m.

Why it matters: With no penalty for not purchasing health insurance, but a requirement for insurers to accept anyone still standing, many expect the costs of insurance would skyrocket. Congress could, theoretically, replace the individual mandate with another policy that doesn’t run afoul of the activity-inactivity distinction but it is unlikely that congressional Republicans would permit such a fix, at least in the near term.


What it is: The question of whether the health reform law can stand without the individual mandate — in legal parlance, whether the individual mandate is “severable” — is a pretty crucial one. The Supreme Court will hear arguments on if it could strike down that part of the law, while letting the rest of it stand.

What they’ll argue: The Department of Justice says that if the court strikes down the mandate, it should also repeal the health reform law’s guaranteed issue provision, which requires insurers to accept all customers regardless of their health-care status. The argument there is that the mandate is so integral to making insurance work - by getting the healthy people to sign up - that, without it, insurance markets could no longer accept all applicants. Opponents of the law go even further. They contend that because of how the law was written - without a clause that specifically noted that individual provisions could be severable - that the whole thing should fall with the mandate.

The Eleventh Circuit Court of Appeals came to an opposition conclusion: It overturned the mandate, but allowed the rest of the law to stand, even the parts that the Justice Department says should have fallen.

When it happens: Wednesday, March 28, 10 - 11:30 a.m.

Why it matters: If the Court finds the individual mandate unconstitutional, then severability will become a key issue in determining how much of the law falls with it. It could decide that just the mandate falls, leaving the insurance industry with a pretty big challenge. Or it could rule that the mandated purchase of health insurance is so critical to the health reform law that if it goes down, it takes other key parts of the Affordable Care Act with it.

Medicaid Expansion

What it is: The health reform law expands Medicaid to cover everyone under 133 percent of the federal poverty line (about $14,000 for an individual) in 2014. Medicaid is run as a state-federal partnership and, right now, states are only required to cover specific demographics, groups like low-income, pregnant women and the blind or disabled.

What they’ll argue: The states contend that this provision is too onerous: They’ll be responsible for footing part of the Medicaid expansion’s bill, and say they can’t afford the costs. The federal government, for its part, has centered its argument on the fact that states voluntarily participate in Medicaid. If they don’t like the new expansion, they could pull out of the program.

When it happens: Wednesday, March 28, 1-2 p.m.

Why it matters: Since states’ participation in Medicaid is voluntary, Supreme Court watchers widely expect the justices to find this part of the law constitutional. There is worry though, that if they were to strike down this part of the law, it could set sweeping new precedent for how state-federal partnership programs function.

The first one today on "anti-injunction" was specifically requested by the Court. Some people have speculated that perhaps they asked for this argument to be made in order to enable them to delay a ruling on the law's constitutionality until 2015. That's an important thing to watch for.

The last one on Medicaid expansion seems like a no-brainer to me. If Medicaid was unconstitutional, that would have been decided by now. So the crux of the matter comes down to the individual mandate. And IF it is declared unconstitutional, does that invalidate the whole ACA.

So there you have it - a summary of what everyone will be talking about for the next 3 days. But unless you have the ability to do a Vulcan mind-meld with Justice Kennedy, don't expect much actual news. The real story will happen in late June when the Court announces its decision.

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