Monday, June 18, 2012

After the Supremes Rule on PPACA

Juan Williams is reporting that the Obama administration is prepared for a full scale political assault on the Supreme Court if they lose rulings on PPACA, aka Obamacare. This would be more of the same from a President who refuses to recognize the limits of power in a constitutional government. What is often forgotten is that there are two major issues before the court. The first, of course, is the constitutionality of the individual mandate. The second is the fed's massive expansion of medicaid at the expense of the states. David Oedel of the National Law Journal (H/T Ilya Somin and The Volokh Conspiracy):
The ACA, though, puts an unusually heavy federal clamp on state “partners” in Medicaid. If any rogue state were to fail to extend free health care to large portions of the lower-middle class, as ordered under the ACA, it could lose all its federal funding for Medicaid for the poor. That funding is by far the largest federal outlay to any state, and is critical to states being able to care for the poor.

Justice Stephen Breyer unexpectedly suggested at oral argument that a decision by the secretary of Health and Human Services to strip any noncompliant state of all Medicaid funding would be unreasonable, and just cause for litigation…

[Chief Justice] Roberts… interjected, “[S]o long as the Federal government has that power [to strip all funding], it seems to be a significant intrusion on the sovereign interests of the State,” even if the states may have experienced and accepted such intrusions before.

If the Medicaid mandate is overturned, this will make the law more complex to implement because those who would have gone on to Medicaid will probably have to go on to the exchanges, but may not be able to afford it. Much has been written about the need for an individual mandate to make the system work, but I will succinctly recap. The individual mandate is necessary so that insurers have a healthy population to offset the costs of insuring those with pre-existing conditions.

Williams also points out that the a ruling against the law will put pressure on Republicans to say what their own plan would look like. The ugliness of the status quo will surely provide the pressure. However, I think that Romney, specifically, not Republican in general, will be the one's facing the pressure. Obama has already tipped his hand. He will assault the court and make the case that we need him to pick new justices so that the federal government can build the Hoover Dam of health care (more like Rube Goldberg, but he is prone to rhetorical flights.) Team Romney will be in an awkward position, given their man's previous efforts in Massachusetts.

This is not a time to over-think the problem. What's popular about the Obamacare bill? Covering pre-existing conditions and expanding coverage. What's unpopular? Everything else. Romney should say that the government will provide assistance to help those who have trouble affording health care coverage, but they will have to pay in some themselves to show they are serious; ditto for those with pre-existing conditions. He could throw in as much of John Mackey's plan as he likes as well, but he doesn't need to say much more to have a better plan than Obama's Pelosi's (we need to read the bill) and Reed's. Such a plan wouldn't cost much and would also give the lie to the idea that Romney is some kind of right wing nut.

The nation's health care insurance system is like a carpenter's nail that's going into wood at a bad angle. PPACA is the decision that a sledgehammer is the right tool to remedy the situation. The right answer is to start over; and use the power of the free market.

My concern about Team Romney is that their excellent offensive against Obama is blinding them to opportunities to put forward solid policy proposals in advance of the predictable news cycle. Maybe they are ready, and we just don't know it.

Finally and fervently, I am hoping for the entire law to get the boot, which it deserves. Not doing so will set bad precedents that will take two decades from which to recover.


  1. i as well would like to see the shredders wind up.

    however, after reviewing day 3 arguments on severability it appears to me they will sever.

    basically, they didn't want to go back through 2000+ pages of the ACA to find out what would stay and what would go. call it severable, kick it back to congress.

    which would be good news: the ACA is as unpopular as ever-let's see them try to work on it during an election season.

    the important part is the mandate-that falls, the other two days of arguments are moot. and i will be cracking open my best malbec when it happens.

  2. drozz, I am worried that if only the mandate is revoked, the rest of the law lurches on like a zombie sucking life out of the economy.