Today, the Supremes sang.

Today, the Supremes sang.

To the surprise of many, they upheld the individual mandate requiring that most Americans buy insurance–or face a modest penalty. The vote was 5-4 with Chief Justice Roberts joining the majority.  The court overturned just one small part of the legislation. Under the Affordable Care Act, the federal government is offering states funding to expand their Medicaid programs. Washington had threatened to withhold all Medicaid funding if a state refused to participate in the expansion. The Court ruled that the federal government cannot penalize the states in that way.

I was not entirely surprised by the Court’s decision. Indeed,  on March 26, the day that the Supreme Court began to hear oral arguments, I wrote:

“For months, the media has been feasting on the story, calling it “The Case That Could Change Health Care Forever.”

“Yesterday, the Baltimore Sun declared that ‘The most important six hours of recent American history will start to unfold on Monday.’

“No question, the story is sizzling. And I hate to be a wet blanket. But let me suggest that the hullaballoo is totally unwarranted.

Why the law won’t be overturned

“I cannot believe for a minute that this Court wants to go down in history as the Gang of Nine that quashed the most important piece of legislation that Congress has passed in 47 years. If it did, we could find ourselves on the brink of a constitutional crisis. It is simply not up to the Supreme Court to rewrite legislation passed by Congress.”

 I went on to explain that the mandate “cannot be separated from the very popular provision which insists that insurers cover everyone without inquiring about pre-existing conditions. Overturn one and you must repeal the other. Otherwise many people would not buy insurance until they fell ill, secure in the knowledge that insurers could not charge them more because they were sick. The insurance pool would be filled with the aged and disabled, and premiums would skyrocket to unacceptable heights. It’s not clear how the system could survive, but the Court knows that the provision which says that insurers can no longer shun the sick enjoys widespread public support. They would be loathe to throw it out, which suggests that they will keep the mandate.

A credibility risk

“Finally,”  I wrote, “If the Court strikes down the Obama administration’s signature legislation, just months before the November election, it risks undermining its own credibility, shredding what is left of its reputation for political neutrality. This court is concerned about its legacy.

“As Dahlia Lithwick recently pointed out on Slate.com: ‘The current court is almost fanatically worried about its legitimacy and declining public confidence in the institution. For over a decade now, the justices have been united in signaling that they are moderate, temperate, and minimalist in their duties …’

“’That means the court goes into this case knowing that the public is desperately interested in the case, desperately divided about the odds, and deeply worried about the neutrality of the court,’ she writes.

“Lithwick then points to a Bloomberg News national poll ‘showing that 75 percent of Americans expect the decision to be influenced by the justices’ personal politics.’

Here I added a comment “I very much doubt that the Court wants to confirm this jaded view of the highest court in the land.

‘Justice Clarence Thomas doesn’t worry much about things like that,’ Lithwick adds. ‘I suspect Chief Justice Roberts and Justice Kennedy worry quite a lot.’”

‘Radical decision’ would affect many federal programs

Health reform’s opponents are asking the Court to make decisions that Washington and Lee Law Professor Timothy Jost calls ‘truly radical” . . .  As for the notion that Congress cannot fine individuals who refuse to buy insurance, the penalty is, in effect a tax,  observes Yale Law School’s Jack Balkin, and ‘if taxes that act as incentives to engage in socially desirable behavior and reduce the costs of government programs are unconstitutional, much of our tax system would be constitutionally suspect.’

If some find the legislation unacceptable, they have remedies – but the Supreme Court is not one of them. As Christian G. Kiely explains in the Suffolk University Law Review: ‘If the Patient Protection and Affordable Care Act is an ill-conceived law, the opposition should seek resolution through the political process and not the courts.’

Kiely quotes Yale’s  Balkin: ‘Whether or not such a law is wise, the people’s representatives have the constitutional authority to enact it. What was said during the constitutional struggle over the New Deal is still true today: for objectionable social and economic legislation, however ill-considered, ‘appeal lies not to the courts but to the ballot and to the processes of democratic government.’”

The post, was headlined “Will the Supreme Court strike down health reform? ‘No way,’ says health policy blogger, author Maggie Mahar” and it appeared on healthinsurance.org,  the website where I have been posting for the past few months. (I plan to continue posting  there as well as here, on HealthBeat.  To learn more about HealthInsurance.org, click here.

At the time, I knew I was going on out a limb. But I believed then, and still believe that if the Court tried to overturn landmark legislation, it would be threatening the systems of checks and balances that divides power among the three branches of our government.

Finally, let me emphasize that the notion that the Affordable Care Act “forces” all Americans to purchase insurance is an exaggeration  First, the penalties are so modest that they hardly constitute force. Secondly, the only Americans who would be affected by the rule are those who do not have employer-sponsored insurance, and must buy their insurance in the individual market.  The graphic below illustrates how few people will be affected, and provides detail on the penalties.  Finally, keep in mind that  under the Affordable Care Act many Americans who purchase insurance in the individual market will receive subsidies in the form of tax credits.

requirement to buy coverage under the Affordable Care Act

20 thoughts on “Today, the Supremes sang.

  1. Hi Maggie:

    Congrats on getting your blog back! And Roberts wrote the opinion?!? This has been a long time coming for most of us and another decade or so delay would have added trillions to healthcare cost.

  2. Welcome back Maggie! We missed your thoughtful and detailed postings.

    I’m so glad the Supreme Court upheld the constitutionality of RomneyCare!

  3. I added the url to Google Reader last night and this morning it still displays the old content. Check the rss codes or whatever… I’m not a techie. Sorry I can’t be more helpful.
    Oh yes, and welcome back! I know you’re thrilled and pleased to be back in the saddle.

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  5. Hi,

    Hello and welcome back to your great blog. Well, it appears you are back. last time I checked in you said you were leaving.

    I haven’t been reading since I sort of took issue with something you said long ago (back while people were still debating the public option) and then I sort of came back just to kind of take out on you what I was feeling.

    The first thing I took issue with was that it seemed you were using scare tactics when you thought/assumed etc. I was being, I guess, against your side in terms of health care and then it seemed to me you were using scare tactics, you said “What if you get sick? You could die.” Or something like that. And I felt (and still feel) that that wasn’t necessarily the best way to go about a debate. I then replied by saying that I actually was for single payer because I wouldn’t want it to be privatized, but what I was actually feeling was that was well a cancerous way to act.

    I also noticed that in one of your later blogs (not much later) talking about how people don’t understand health care reform because of their educational level (and also adding, I think, to be fair, that perhaps they don’t have time; but I also thought that was kind of an indirect critique to people such as myself commenting here).

    So, I came back much later and said something like “Well, what about the 1099 provision?” or something, just because I was still feeling sort of violated at that response from long ago with your telling me, What happens if I get sick? I could die.

    Well, I’m glad your back and I like what your doing, except for that one aspect: the scare tactics and it seemed the commenting on people’s educational level might have been not in good taste either. But the thing is about me, I may not be educated but I can go into a casino and say the exact number that will appear next in roulette. I had the belief that anybody could be a genius (not just belief…but knowledge of how the brain works) and then well proved it by being able to do that (that was the first test that came into my head; my mom asked if I wanted to go, and then I said, yes, and then thought that that would be a way to prove it). And I did it in one try.

    So, just a thought. That I didn’t appreciate the scare tactics or the implication about educational levels. Just thought, maybe somebody who can walk into a casino and say the exact number that will appear next in roulette deserved something a little better than this.

    if not, that’s fine. I’ve said my piece. And if that’s how your going to continue to discuss, that’s a small price to pay for all the great work your doing here, although I think if there was more love that you wouldn’t have limits.

    • Hi Keith–

      I’m glad to have you back!

      I’m sorry about my intemperate comment–When I said “you could die” I probably
      was just trying to make the point that we all need health insurance in some form.
      And I was probably feeling irritable. I’m truly sorry.

      I would love to see a public option, and I think we’ll get it in a couple of years,
      maybe sooner. But it would be modeled on Medcare and first, I feel it’s important to
      fix Medicare– squeeze out the waste (unnecessary tests and surgeries), pay more for
      undervalued services like palliative care and pay less for overvalued services (treatments that
      provide little benefit for most people– paying the old rate only for patients who fit a particular
      medical profile, and would benefit.

      The Affordable Care ACt has provisions that let CMS and HHS do just that. I would also like to see
      Medicare negotiating with drug and device companies for lower prices on many drugs and devices (President Obama has indicated that is still on the table. Assuming he is re-elected, I’m hopeful this will happen in 2013.

      Then we would be ready to launch a good, affordable public option.

      I’m wary of single payer because we don’t know who will be running hte govenrment 8 years from now.
      What if Jed Bush is elected? If we have single payer, the party in power would have the ability to trash it– reducing benefits, shifting costs to patients, refusing to cover contraception, etc. Think of what
      Margaret Thatcher did to the UK’s single payer system. She starved it of funding, and it’s still trying to recover.

      That’s why I would always like to have alternatives to government insurance– particularly non-profits like Kasier.

      Regarding educaion– the Affordable Care Act is very very long and dense in detail. The language is also
      government/legal language that many people would not be familiar with. It had to be long and complicated, or it would have been full of holes. But a great many Americans don’t have the education needed to read such a long, complicated document. I don’t blame them– I blame us for not providing the
      funding that our public schools need. Classes with 24 students are too big; teachers can’t give students the individual attention they need. I could go on . . . but other countries spend more on public education than we do, and their citizens are better educated.
      But again, I wasn’t putting down people who would have a hard time reading the legislation. I was just pointing out that the media needs to do a better job of translating and explaining it to the
      many Americans who can’t read it for themselves.

      Finally, I’m not publishing your comment because I don’t want to encourage readeres to write comments
      about me. Things can quickly get personal– and some people turn nasty.

      Your comment is not at all nasty, which is why I am spending time replying to it.

      But I just don’t want to set a precedent to turning this thread into “About Maggie.” I’d llike peopel to comment on the issues– reform, and the ruling.

      That said, I do appreciate your comment and, again, WECOME BACK! (I do remember you!)

      Best, Maggie

  6. As I posted at the NY Times: I believe that Justice Roberts upheld the ACA and its controversial insurance mandate as a way to galvanize support for Romney and the Republicans. By casting the much-hated individual mandate as a tax, Roberts is cleverly goading the ire of the public for paying higher taxes and for government interference in their lives. By doing so, Justice Roberts is able to increase support for Romney (look at how much he raised after the Court’s decision was announced), thereby increasing the chances of a Republican victory in the Presidential race and the Congress this upcoming November. Once elected, the new Republican-dominated government will be able to repeal the ACA completely. Very clever, Justice Roberts. Your bias and partisanship are telling . . .

  7. Everyone– thank you very much.

    Like most of you, am delighted by the decision.

    I’ll be back later today with a new post, and to respond to commnts.

  8. Nahani–
    Thanks for your comment.
    But polls show that, following the decision, support for the Court’s ruling was evenly divided
    As for galvanizing conservatives, commentators point out that Obama’s
    opponents are already so “galvanized” that it would be hard to dial up their passion.
    I’ll be writing about how the decision will effect the November election in the next day or two.

  9. Thank you for the informative information. I am an RN in Memphis and am currently in graduate school for my MSN and all this healthcare reform business is something I would like to know more about and how it will affect me as a healthcare professional!

  10. Yayy!! Glad you’re back, Maggie. I would love to hear your take on the ACA and multiemployer plans. We’re getting a cold shoulder from HHS

  11. Hi Martha–

    Not sure what you mean by “multiiemployer” plans. . .If you tell me more I’ll
    look into it.

  12. So glad you are back. I enjoyed reading this blog for several years, and I am delighted that the ACA has been upheld.

    I have a question that puzzles me. I will be on Medicare as of next month (yay!). I am astonished at the intensity of the insurance companies’ marketing of their supplement/advantage policies, which I understand are strictly regulated and standardized. I must have received a hundred solicitations in the mail to buy one of those plans. I don’t know if I need or want one, I have been on an individual insurance policy for several years now, which I will be delighted to give up at the end of this month. I don’t take any meds and don’t have any unusual problems.

    Why do they push those supplemental policies so much? What’s in it for them, really? There was absolutely no enthusiasm among insurers to cover me on an individual policy, but now this constant marketing push. Perhaps it’s just because there are so many of us boomers turning 65. Please let me know if you know.
    Again, glad you are back.

    • Hi Katie–

      Thank you — I’m glad that you’re back too!

      On Medicare–yes, you probably do want a supplmeental policy — either a “Medicare Advantage” policy or
      a “MediGap” policy.

      Ninety percent of Medicare recipients have one or the other because there are s many holes in Medicare and the co-pays can be very high.

      Just one example: Medicare doesn’t cover eye-check-ups (unless you’re suffering from an eye disease–but how would you know if you didn’t have eye-checkups? More importanttly Medicare’s cost-sharing for hospital care is pretty steep.

      A good Medicare Advantage policy will provide lower cost-sharing, and better benfits in a number of areas. You will be paying extra for a supplemental policy but there’s a good reason why most seniors shell out the extra money. The cost varies depending on how much extra coverage you want to buy–or can afford. Most people can find supplemental insurance that they can afford, and that will provide better protection.

      For more on MediGap policies go to this Kaiser FAmily Foundation website (they are not connected to Kaiser Permanente, the insurer) http://www.kff.org/medicare/talkingaboutmedicare/med_supplement.cfm

      For information on Medicare Advantage insurance, go to http://www.kff.org/medicare/2052.cfm Begin by clicking on the Nov. 11 Fact Sheet.

      Also, talk to friends or relatives who are on Medicare and have either MediGap or Medicare Advantage– they can tell you what they chose, and why.

  13. I’m in an industry where I work under union contract for up to a dozen employers who contribute to a fund (Taft-Hartley) which is administered by union and employer trustees. When added up the contributions qualify me for benefits, the level depending on the amounts of the contributions. We have several problems. Some levels are not compliant because of annual caps which will have to be eliminated. We don’t know if contributions on that level can be used in any way to benefit the employees. We know we can’t use the contributions to offset cost of buying off the exchanges. Also, most of us work fulltime, but not for one employer, so the employers will probably fall outside the mandate. When the size of our employers is determined will all workers count toward the 50-worker mandate or just the ones working under our contract. We belong to the NCCMP (National Coordinating Committee of Multiemployer Plans). They lobby HHS on our behalf. Last I heard, HHS may disqualify our plans all together as creditable coverage which will then throw everyone onto the exchanges. The NCCMP thinks the Administration doesn’t want to be seen as doing favors for unions in an election year. I think we’ve fallen completely outside this legislation and no one knows what to do with us and I don’t know what to tell my members. It’s keeping me up at night.

  14. Welcome back Maggie — glad to see you providing us with useful information, strong carefully derived opinions, and a chance to join in the forum ourselves once again.

    As you know, I was one of the pessimists about the Court and the ACA, expecting a full overturn, an opinion that was strongly reinforced by the questions during the hearings, especially by those of Justice Kennedy.

    Imagine my shock when I watched as SCOTUSblog flashed up the news that the mandate was upheld by declaring it a tax — and few minutes later when I learned that it was Chief Justice Roberts, siding with the liberal bloc for the first time ever in a 5-4 decision, who cast the deciding vote.

    After reading all the recent discussions of the Court vote, including the apparent fact that Roberts changed his mind and left the conservative block late in the process, it strikes me that you and Dahlia Lithwick were correct in that Roberts cared more about the integrity of the Court and its position than about political factionalism, at least this time. It appears that he felt required to change his position because of the determination of the conservative bloc, including Kennedy, to overthrow not just the mandate and some of the coercive aspects of the Medicaid expansion, but the entire law. That was too much for Roberts to swallow.

    I am left feeling sorry for the unfortunate residents of the Red States who may well end up without health care due to political leaders trying to make a point with the Medicaid expansion, some in states where an income of just over $7000 a year is enough to disqualify you from existing Medicaid programs.

    As far as the potential impact on the election, it is going to be up to all of us out here in the non-internet world to try to get the word out as to what the ACA really does, how ridiculous some of the conservative assertions about it are — including some that are outright fiction, and how much it will help so many Americans at so little actual cost. This fight will be fought in warring PAC ads on TV, but it will be won in coffee break rooms, backyard barbecues, and living rooms.

    One other thing — the new blog looks a lot better and cleaner than the old site. Congratulations again.

    • Pat–
      You write: “This fight will be fought in warring PAC ads on TV, but it will be won in coffee break rooms, backyard barbecues, and living rooms”
      I totally agree.
      And I would add that I think the money that the Romney campaign is pouring into TV ads won’t pay off. Most Americans are both weary of and wary of campaign ads on TV. Our campaigns go on too long, so the ads become both boring and irritating. And most people realize that they cannot
      believe much of what is said. These are ads, after all, like the
      ads telling you that this is the best detergent ever,the New Improved ” . .
      Ultimately, the Affordable Care Act will help Obama If people understand what is actually in the law.
      That’s where the barbeques and coffee breaks come into the picture-
      Those who believe in reform need to expain the ACA to their friends & neighbors. We don’t want to lecture them, but I think that, increasingly, over the coming months, people will be asking questions. . . .-
      Thanks for the comment on the design.
      This was done by healthinsurance.org, which is also hosting
      the blog on their server ,free of charge.
      Healthinsuranceorg has an excellent blogpage and is is pro-reform. I’ve been writing for them for a few months. (They actually pay for posts, which has made it possible for me to relaunch HealthBeat without financial support.)
      See their blog page here http://www.healthinsurance.org/blog/2012/07/01/lessons-learned-from-health-reform-then-and-now/
      Harold Pollack (who also posts on The Inidental Economist, one of my favorite healthcare blogs) and Linda L Bergthold
      (well known for her work when the Clintons were trying to reform heatlhcare) also post there.

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