The Most Overlooked, And Important, Part Of The ObamaCare Decision

One part of the Supreme Court's PPACA ruling has not received a lot of attention, but it has the potential to have a lot of impact in the future.

The vast majority of the press coverage over the past several days has focused, quite understandably, on the fate of the individual mandate and the fact that Chief Justice Roberts appeared to break with his conservative brethren to uphold the law as a proper exercise of Congressional power under the General Welfare (Taxing) Clause of Article I, Section 8 of the Constitution. However, there is one part of the ruling that has received little attention so far, and which has the potential to have far reaching implications for Federal spending and the relationship between the Federal Government and the states. In 7-2 ruled in which Justices Kagan and Breyer joined Chief Justice Roberts and the four conservative Justices, the Court significantly limited the ability of Congress to force the states to expand spending under the mandate of a Federal program:

While the Supreme Court narrowly ruled the Affordable Care Act constitutional, it did place some important restrictions on a Medicaid expansion that is a backbone of the law’s efforts to insure more Americans.

In addition to requiring citizens to buy health insurance, the law also expanded Medicaid and tied federal funding to that expansion of state programs. In order to provide insurance to more poor people, the law said that states who did not accept the Medicaid expansion would risk losing existing Medicaid funds.

Today the Court said that as long as states who chose not to participate in the law’s expansion of Medicaid do not lose existing funds the Medicaid the expansion is constitutional The vote was 5-4 with Chief Justice John Roberts joining the liberal bloc.

The end result could be that more states opt out of the Medicaid expansion, which won’t be enacted until 2014, and the law could end up insuring fewer currently uninsured Americans.

The bottom line from Roberts: “The Court today limits the financial pressure the Secretary may apply to induce States to accept the terms of the Medicaid expansion.As a practical matter, states may now choose to reject expansion; that is the whole point.”

But what is interesting is that liberal justices like Elena Kagan and Stephen Breyer joined the five conservatives to insist that the states couldn’t be threatened with a loss of funding.

“Although many will be surprised that Chief Justice Roberts joined the Court’s progressive bloc to uphold the mandate, the far bigger surprise is that two members of that bloc-Justices Breyer and Kagan-joined the conservatives in holding that the Medicaid expansion exceeded Congress’s power,” says Stephen Vladeck, of American University Washington College of Law.” As a matter of precedent rather than politics, the Breyer and Kagan votes on Medicaid are likely to be far more significant going forward than the Roberts vote on the mandate,” he said.

Paul Clement, an attorney for the states called this part of the ruling a “significant victory” he said. “The states will have a chance to make the choice. They will no longer have the gun to their head.”

Over at National Review, Mario Loyola points out the problems that the PPACA’s Medicaid rules presented to states, and the importance of the Supreme Court’s ruling:

Obamacare turns Medicaid from a safety net into a massive wealth-redistribution scheme, and threatens states with the loss of all federal Medicaid matching funds if they don’t comply. While the Supreme Court has made it clear many times that the federal government cannot command state governments to do anything, it has also upheld federal grants conditioned on compliance with federal dictates, so long as the penalty didn’t cross the line from “encouragement” into “compulsion.” The seminal case was South Dakota v. Dole (1987), in which the Court upheld a provision in the federal highway bill that allowed the Secretary of Transportation to dock 5 percent of a state’s federal highway funds if they refused to raise their drinking age to 21.

(…)

The silver lining in yesterday’s ruling was that Chief Justice John Roberts marshaled seven votes for a significant revision of the Dole coercion doctrine. The essence of the ruling was that states must retain freedom of choice, not just in theory but also in fact. Though the Court provided little guidance in how to distinguish between mere encouragement and compulsion, it seems clear from the ruling that if the penalty is much more than nominal, it risks being struck down for eliminating the state’s freedom of choice in fact. Another crucial aspect of the ruling was that the threat of losing all Medicaid matching funds if states did not comply with Obamacare’s transformation of Medicaid was per se unconstitutional. Elevating Justice Sandra Day O’Connor’s Dole dissent into the majority, the Court ruled that it is unconstitutional to condition the funds for one program on compliance with the dictates of a different program. The Medicaid expansion is no mere modification of Medicaid, reasoned the Court: It creates an entirely new program. Now think about that for a second. Many and perhaps most conditional federal grant programs have provisions similar to the one struck down by the Roberts Court. All of those will now be open to constitutional challenge.

The implications of this may not be easy to see, but they are potentially far reaching. With this ruling, which has behind it the support of a strong majority of the Court, the Federal Government is going to have a much harder time shifting responsibility for social welfare spending, or indeed any other type of spending, to the states in the form of an unfunded mandate, and the states are going to have a significantly powerful weapon in their hands to challenge future attempts by Congress to impose new mandates upon them without providing the funding for them. Moreover, as more than one legal analyst has pointed out in the days since the decision came down, this ruling constitutes the first major restriction of any kind on the Congressional Spending Power in 75 years and, for that reason alone, it is significant ruling that has the potential to open up many new areas in which Federal power can be challenged by the states, and by the people.

The important question, of course, if what the contours of this new limit actually end up being. Here’s what Chief Justice Roberts said in his opinion:

[In South Dakota v. Dole], [w]e found that the inducement was not impermissibly coercive, because Congress was offering only “relatively mild encouragementto the States…” We observed that “all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5%” ofher highway funds. In fact, the federal funds at stake constituted less than half of one percent of South Dakota’s budget at the time. In consequence, “we conclude[d] that [the] encouragement to state action [was] a valid use of the spending power.” . Whether to accept the drinking age change “remain[ed] the prerogative of the States not merely in theory but in fact.”

In this case, the financial “inducement” Congress haschosen is much more than “relatively mild encouragement”—it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State’s Medicaid plan doesnot comply with the Act’s requirements, the Secretary of Health and Human Services may declare that “further payments will not be made to the State.” A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it… Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs.

In some sense, then, it appears that the size of the new burden that would be imposed on the states is an important factor in determining if the new mandate is a valid exercise of Congressional power. It will take many cases, and many years, to determine exactly what those limits are in the Court’s view, but Jonathan Adler fleshes out some of the implications of the Court’s ruling here:

The Court’s decision on the Medicaid expansion dramatically reduces the pressure for states to accept this part of the PPACA.  It will also limit the federal government’s ability to direct state implementation in other areas by threatening the withdrawal of federal funds.  Given the frequency with which Congress uses the power of the purse to induce state cooperation, new rounds of litigation on the spending clause are sure to follow.  Dole upheld a threat to withhold five percent of federal highway funds if states refused to adopt a 21-years-old drinking age.  But will courts uphold a threat from the Environmental Protection Agency to shut off the lion’s share of highway funds should states not adopt sufficiently stringent pollution controls on local businesses?  Perhaps not.  (For more on this point, see J. Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 Iowa Law Review 377, 433-52 (2005)).

Just as with the Court’s holding limiting the Commerce Power, which I wrote about last week, this holding as the potential to place significant limits on Congressional power going forward. Just exactly how that works itself out will be interesting to watch.

 

FILED UNDER: Health Care, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. I don’t like unfunded mandates. No problem there.

    I would like to remind that Medicaid helps, though. When there is money for it, it improves peoples’ lives, and saves them from medically related bankruptcy.

  2. Ron Beasley says:
  3. @Ron Beasley:

    But wholly argued from the standpoint of self-interest, more than that the self-interest of non-beneficiaries.

    As Katherine Baicker argues in that NPR link, the most straightforward arguments for Medicaid expansion are compassionate and altruistic.

  4. Tsar Nicholas says:

    Good decision legally speaking, but ironically enough it won’t end well fiscally speaking unless Obamacare is repealed.

    Obviously a large number of states will not comply with the Medicaid expansion. Why would they? States already are in dire fiscal straits and local money doesn’t grow on trees. Ergo if this turkey of a law is not jettisoned the inevitable result is that Uncle Fed will pay higher and higher percentage shares of the Medicaid boondoggle. Meaning that unsustainable levels of federal debt only are poised to go higher. Add into the mix Medicare and Social Security. Think PIIGS but on a much larger scale.

  5. Gustopher says:

    I think this means that states can start lowering the drinking age back down to 18 (or possibly even 12), without losing their highway funding, if they are feeling do inclined.

    Not that I want more drunk 18 year olds, but it always bothered me that the federal government was using the highway funds as a club.

  6. @Tsar Nicholas:

    It’s one thing to say we don’t have money for Medicaid. It’s another to label it “boondoggle” just because we don’t have money for it. It can be both good and expensive. In that case you have to make a choice about what’s important.

    And in the larger picture, this growing medical cost for an aging population, you might as well look at how to solve it all, rather than declare it all “boondoggle” and wish it away.

    If you wanted to be ruthless in that, you’d just choose a low cost system from another successful economy, and just adopt it. You wouldn’t whine that we can’t because we’re stupid, or exceptional, or something.

  7. An Interested Party says:

    Think PIIGS but on a much larger scale.

    Tsar Nicholas, much like superdestroyer, needs to find some new material…both of them are now spouting the same gibberish over and over again…by the way, for all this talk about states opting out of this Medicaid expansion, I’m sure there was similar talk when Medicare and Medicaid were first enacted…perhaps someone could inform me as to which states opt out of those two programs…

  8. Spartacus says:

    The court’s ruling on the Medicaid expansion is not at all likely to have any impact on the behavior of states after the election – particularly if Obama is re-elected. Under the ACA, the federal government picks up 100% of the cost of the Medicaid expansion in the first year. The subsidy ultimately decreases to a still whopping 90% of the total cost of the Medicaid expansion.

    Now I ask, with all those red-state hospitals (including county-run hospitals) that are forced to treat patients on an emergency basis and all those red-state doctors who would love to have more paying customers, why would any clear-thinking state continue to absorb those costs and deny its doctors new customers merely to satisfy some crazy GOP religious idea about state’s rights and the size of the federal government? It simply ain’t gonna happen. Period.

    Initially, there will be a few idiots who will try to prove their Tea Party bona fides, but just like with the stimulus, there will be far more GOP politicians who will not only accept the Medicaid subsidy, they will downright take credit for it.

    Go back and read the history of social security and you’ll find remarkable parallels to the ACA, including a court challenge and a reliance on Congress’s power to tax. Between this week’s court rulings on the ACA and the Arizona immigration law, Obama’s recent announcement that the government will no longer deport the children of illegal immigrants and the nomination of immigrant-bashing Mitt Romney, the GOP has truly met its Waterloo. This election will still be very tough and very close, but the GOP is going to find itself in the wilderness for the next 20-30 years just like it did when FDR signed the Social Security Act.

  9. jan says:

    I enjoyed your overview concerning the lesser issues ruled on in the ACA. As the opening salvos of cheers and high-fives subside among social progressives, various subsets and incongruencies of the ruling are arising and being absorbed into political minds, some of which hold substantial conservative promise.

    For instance, Charles Lane, of the Washington Post, not only praised Roberts for his ‘compromise,’ but thought he was instilling conservative precedents towards a long range strategy implementing future rulings.

    Finally, Roberts’s nonpartisan performance has earned respect and political capital that may help him achieve key conservative goals on voting rights and affirmative action in cases next term.

    Conservatives reproach Roberts for activism, saying he “rewrote” Obamacare. He sure did. Formerly, it embodied progressive hopes for a more active federal government and a Democratic political majority. Now, it’s truncated and facing a political battle royale in November with a big “tax” sign around its neck.

    The medicaid expansion ruling, giving the states more flexibility to accept the expansion, or not, poses many potential implementation problems of health care access by the poor. Both Artur Davis and George Will disagree with Obama’s WH Chief of Staff, Jack Lew, in automatically assuming all the governors will eventually fall in line, and accept, with docility, the expansion.

    For one thing the medicaid expansion proposal is laid out as priming the pump, being that the first year such funding is totally supplied by the fed. After the hook is set, then the states have to come up with more of their own medicaid funding. IMO, that is as deceptive as the ACA being rolled out as a penalty to pass Congress, and then being presented to the high court, by Obama’s Solicitor General, as a tax to meet a more constitutional framework. And, in these days of state deficits, as well as a general repudiation of how this law was formulated and passed, I don’t think the Obama administration can assume anything, as to how the chips will fall into place for their government plan.

    Artur Davis expanded on this medicaid fly-in-the-ointment problem, saying that up to 50% of the uninsured poor, in a given state, could be adversely effected, should that state opt out of the medicaid expansion provision. And, the CBO has even come up with numbers estimating that by 2016 4 million people will be paying the previously described penalty, but newly termed ‘tax’ — 75% of that number making less than $120,000 and considered part of the middle class. Such details contradict the rhetorical promises made by President Obama to help the poor and not impose further taxation on the middle class. This at least will be the conservative argument, backed by non-partisan figures, that can be used to inform the public about the impact of this wonderful, new, constitutional health legislation.

    Lastly, we had George Stephanopolis, joining Terry Moran, both of whom held clear recollections of Obama and his cohorts firmly calling the mandate something other than a tax. Ironically, when Jack Lew was reminded of the tax-defining qualities funding the mandate — the money being collected by the IRS (of which many more agents are being hired to do the job), and the amount calculated as a percentage of income — he continued to tacitly declare the money collected was nevertheless a penalty, refusing to minimally acknowledge that it was this Roberts-altered definition of the mandate which allowed the ACA to scrape by as being constitutional! Stephanopolis even had the honesty to admit that had the tax terminology been correctly used during the congressional debate, the PPACA most probably never would have passed. ,

  10. jan says:

    I have a couple of other questions regarding the mandate:

    What will happen to those people refusing to get health insurance, but who also refuse to pay the ‘tax’ penalty? Will they receive a punishment, like people who don’t pay their income tax do? If these same people get sick, will they be denied healthcare, or still be able to access it?

    Also, the circular chainsaw of the mandate is to impose a ‘tax’ penalty on people which would force (encourage) them into buying health insurance. But, the penalty imposed is speculated to be less than the insurance they are required to buy, So, let’s say people aren’t encouraged enough, to buy health insurance, and simply pay the ‘tax’ instead. This would pose a financial burden on the government, health care providers etc. So, then couldn’t the government simply raise the ‘tax’ penalty higher, until they reach some kind of financial pain threshold, where more people would buy the health insurance, rather than pay a ratcheted up odious ‘tax’ penalty?

  11. jan says:

    @Spartacus:

    “This election will still be very tough and very close, but the GOP is going to find itself in the wilderness for the next 20-30 years just like it did when FDR signed the Social Security Act. “

    It just goes to show you that it isn’t good policy that is considered a winner, just good bribes.

  12. Andy says:

    It seems like a reasonable decision to me. Now we should get rid of unfunded federal mandates for the states.

  13. @jan:

    Your post doesn’t make too much sense to me. First because the poor will have access to subsidized insurance, helping them get on board. Second, because if they do chose to pay the tax, that will increase not decrease health system solvency.

    Remember, right now people go to the emergency room and then walk away with unpaid bills. If they do that past 2016, at least they’ll be kicking in the tax.

  14. Spartacus says:

    @jan:

    I mean no disrespect to Artur Davis or George Will, but neither is responsible for balancing the budget of a state that has large numbers of poor, uninsured people who cost the state millions if not billions, in the form of unpaid emergency room medical bills, lost taxes as a result of lost wages due to inadequate healthcare and lost revenue from doctors who would have treated all those new medicaid patients. All a state has to do in order to avoid those effects is sign up to 10% of the total cost for the Medicaid expansion.

    Again, hypocrisy of GOP politicians regarding the stimulus is instructive.

  15. @jan:

    Basically, you have to not be eligible for Medicaid or state programs, and then:

    Beginning in 2014, all U.S. citizens and legal residents will be required to maintain minimum essential health insurance coverage through the individual insurance market or an insurance exchange, a public program, or their employer or face a penalty. There are some exemptions: individuals who cannot find a health plan that is less than 8 percent of their income net of subsidies and employer contributions, people who have incomes below the tax-filing threshold ($9,350 for an individual and $18,700 for a family), those who have been without insurance for less than three months, and other circumstances such as religious objections.

    Individuals not exempt from the mandate, who cannot demonstrate on a tax form that they have health insurance, will be required to pay a penalty equal to the greater of $95 or 1 percent of taxable income in 2014, $325 or 2 percent of taxable income in 2015, and $695 or 2.5 percent of taxable income in 2016, up to a cap of the national average bronze plan premium. Families will pay a penalty of half the amount for children up to a cap of $2,085 per family.

    If you are really serious about avoiding insurance and the penalty, you only have to join a church.

    Or course, other than the “hypotheticals” that people like Jan make up, most people actually want and seek health insurance. They’ll take advantage of the new rules to get it.

    You have insurance, right Jan? While arguing that other people should have the right not to?

  16. This is something we should really focus on in the coming months:

    There is a cottage industry among people on the right, with health insurance, arguing that other people should not have health insurance.

    Cognitive dissonance alert.

  17. Spartacus says:

    @jan:

    “It just goes to show you that it isn’t good policy that is considered a winner, just good bribes.”

    I don’t know how old you or your parents are, what your financial conditions are, nor if, like most people in this country, you claim to follow the teachings of Jesus Christ, but without social security, medicare and medicaid most senior citizens in this country would be destitute until the time of their premature deaths.

    Most people in this country think it is good policy to pay about 7% of the first $108,000 of their individual earned income to avoid such horrible outcomes, but you obviously think that’s too high a price to avoid those outcomes.

  18. superdestroyer says:

    It is humorous for people to discuss Supreme Court decisions as if they have any influence on future decisions.

    The real take away is that the Supreme Court justices will just do what they want and just pick and choose among different idea of justify whatever decision that they decide.,

    The most interesting of the descents is that four justices have let the world know that they believe that there is no restriction on the commerce clause and that they Congress should feel free to use the Commerce clause to do whatever they want.

    What makes the ruling interesting is that if the liberals on the Supreme Court do not like what the Republicans do in the future (not that the Republcians will be able to pass legislation in the future) , the liberal justices will just find an excuse based a different concept to rule it unconstitutional.

  19. @this:

    Or maybe it’s just a dishonesty alert. They’d want their nephew to have health insurance, but they are willing to argue that your nephew should not have it.

  20. Andy says:

    JP,

    The thing is, a lot of the rules on how the PPACA will actually be implemented haven’t been worked out yet. The devil, as always, is in the details and assumptions often don’t pan out after implementation. Just look at the PCIP.

  21. @Andy:

    I have no problem addressing problems as they become apparent. I don’t think we should just not fix healthcare because in fixing it, we might encounter problems.

    In fact, I’m so solution or goal oriented that I would be willing to throw over the system in a major rework. That is, along as we could keep refining that revolution until it worked.

  22. Andy says:

    @john personna: I agree, I’m simply pointing out that one should be cautious about making predictions on what will or will not happen. State governments, in particular, shouldn’t plan based only on rosy scenarios. There are some legitimate reasons for states to be reluctant until they know exactly what they are signing up for.

  23. @Andy:

    Which are we talking about? I’d say they have a lot of data on Medicaid within their states, and can model pretty well expansion and costs.

    FWIW, I wasn’t dinging Tsar Nicholas on the idea that Medicaid costs money, or that it will cost money in the future. It does cost money. It also helps people and reduces unpaid medical bills(*) among the poor.

    * – one of the stats in the Oregon data, up top

  24. (If Oregon is typical, they know that they have more prospective beneficiaries than they have money, and restraint on program size is a kind of triage. Or if you prefer, rationing.)

  25. steve says:

    @jan- Experience in Massachusetts indicates that people will sign up and few will pay the penalty. CBO expects about $5 billion in penalty payments over the next 11 years.

    As to the general topic, I think that Congress will simply change from threatening penalties for non-compliance to offering a bonus for compliance. That way there will be no penalties, just rewards. If I were in charge, God forbid, I would cut payments to all states in half, then reward increasing levels of compliance with increased reward.

    Steve

  26. jan says:

    @steve:

    Steve, I’m glad you brought MA up, as this is the constant comparison made to validate the existence of the ACA.

    Yes, they both had a mandate applied in their provisions, to grant more health access to uninsured people, while easing the impact of free riders.

    However, the etiology of HC, as well as the populations it was supposed to represent and help, are quite different.

    In the case of MA, Romney, from day one of his governorship, had the threat of medicaid funding being withheld by the feds should he not find a way to increase access for those having no insurance. The 85% dem legislature was already working on HC legislation, as well as outside groups readying a ballot proposition. Basically, MA was demanding health care reform, and it was going to happen, with or without Romney’s blessing or participation. Consequently, it’s no big surprise that MA, being a very liberal state, that the work forged between the legislature, the bipartisan consultants enlisted during the process, and Romney himself, created a liberal solution. And, when the people support what the government is doing, it is not a forced remedy/reform, but rather a welcomed one. I think their cooperative attitude has helped to maintain the high numbers of people in MA who still like their HC, among adult patients as well as physicians. As an aside, HC costs still have not gone down in MA., nor was it addressed in Romney’s bill.

    Some major difference with the MA plan and Obamacare, though, are roughly 2500 pages of stuff, as Romney’s signature HC policy was a mere 170 pages long, as well as a greater variety of health care options and exchanges that is absent in Obama’s legislation. But, even more important, Romney, a republican, brokered the best possible options for a liberal constituency with liberal politicians having enormous veto power. As it was, 8 parts of Romney’s provisions were struck down before it was finally signed into law. However, the bottom line is that this HC effort successfully threaded a bipartisan governor/legislative needle, while still maintaining the majority of good will and harmony with the people who it effected — the state of MA.

    Obama’s bill, however, has had a completely different kind of germination, being vehemently protested from the beginning, held in contempt by the majority of citizens the entire time, arm-twisted unilaterally in Congress, and now having a rather murky Constitutional ending. It is definitely not a bill of the people, by the people, or supported by the majority of the people. So, I’m not sure you can compare the MA experience with the federal one, at least for now. Also, I don’t think you can compare something working in one state, as insurance that it will be adaptable and acceptable for each of the other 49 states, as every state has a different demographic, HC problems, issues etc.

    IMO there are a lot of insurmountable problems with the ACA, evidenced by continuing public objections and unrealized in unforeseen, unintended negative consequences of the law.

  27. Spartacus says:

    @jan:

    “Obama’s bill, however, has had a completely different kind of germination, being vehemently protested from the beginning, held in contempt by the majority of citizens the entire time, arm-twisted unilaterally in Congress, and now having a rather murky Constitutional ending.”

    There’s a 46-46 split among the population regarding the ACA, yet you claim it is held in contempt by a majority.

    The Supreme Court ruled 5-4 (with the highly esteemed, Bush-appointed Chief Justice in the majority) that the law was constitutional. There’s nothing “murky” about it.

    You seem to have a very tenuous connection with facts.

    http://www.gallup.com/poll/155447/Americans-Issue-Split-Decision-Healthcare-Ruling.aspx?utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines%20-%20Government

  28. jan says:

    @Spartacus:

    I am not going to go through all the polls from late 2009 to the present. But, the majority have been constant and significant in their large spreads between approval and disapproval of obamacare. There has been a Reuters and now this one which shows a tie. But, it is immedicately after the decision, and could be outliers, or simply people going along to get along, now that it is considered ‘constitutional.’ And, I really haven’t seen the internals of these polls either. So, the facts, up until a few days ago, are what I’ve stated. if the poll you have posted becomes a trend, then the opinion towards Obamacare will have softened.

    The Supreme Court ruled 5-4 (with the highly esteemed, Bush-appointed Chief Justice in the majority) that the law was constitutional. There’s nothing “murky” about it.

    Oh my, how the flavor of chewing gum changes when a conservative jurist turns in a favorable decision. You’re really laying it on a bit thick, though, don’t you think!

  29. Jeremy R says:

    @Spartacus:

    The court’s ruling on the Medicaid expansion is not at all likely to have any impact on the behavior of states after the election – particularly if Obama is re-elected. Under the ACA, the federal government picks up 100% of the cost of the Medicaid expansion in the first year. The subsidy ultimately decreases to a still whopping 90% of the total cost of the Medicaid expansion.

    Yeah, their complaints make little sense in light of the fact that every state is enrolled in the current Medicaid/CHIP program w/ enormously lower fed reimbursement. If 100% down to 90% by 2020, and staying at that level from then on, isn’t enough to make the huge decrease in uninsured and all the related State health benefits that would come with that worth it, how are these same states okay with remaining in the existing Medicaid or CHIP programs?

  30. jan says:

    Here, here! To a more humane system.

    Forbes: Greeks seeking access to health care stuff envelopes full of cash.

    Advocates for state-sponsored health insurance do so out of a passionate conviction that such systems make their societies more equal. But, in reality, state-run systems create a coercive form of inequality, in which the poor and the middle class are consigned to ghettoized, inferior health care, while the rich and the politically-connected get the best care in the world.“

    In every house where I come, I will enter only for the good of my patients,” says the famous oath attributed to Hippocrates. Government-run, fiscally-broke medicine has made that oath harder, not easier, to uphold.

  31. jan says:

    Just another counter point to Spartacus’s instant analysis of the SCOTUS ACA ruling: Approval Ratings for Supreme Court Slip Following Health Care Ruling.

    Polling is fluid and impacted by disbelief, anger and joy. Hence, you have the approval/disapproval tied. whille the SCOTUS’s approval travels south. Once temperaments settle down, so too will polling register more reliable changes, if there are any changes to be noted.

  32. Jeremy R says:

    @jan:

    Here, here! To a more humane system.

    Forbes: Greeks seeking access to health care stuff envelopes full of cash.

    That’s nice. I see it’s written by someone called Avik Roy. Let’s see who he might be:

    http://blogs.forbes.com/people/aroy/

    ABOUT ME

    I am a Senior Fellow at the Manhattan Institute for Policy Research and a member of Mitt Romney’s Health Care Policy Advisory Group. … In addition to my Forbes blog, I write on health care, fiscal matters, finance, and other policy issues for National Review. My work has also appeared in National Affairs, USA Today, The Atlantic, and other publications. Professionally, I am a health care investment analyst. Previously, I worked as an analyst and portfolio manager at J.P. Morgan, Bain Capital, and other firms.

    So adviser to the Romney campaign, writes for National Review, senior fellow at a Koch and Scaife funded RW thinktank, former Bain Capital analyst/manager — seems about right based on that article.

  33. The elephant in the room is that health care costs(Not Health insurance) are too expensive in the US. Any single and exactly similar surgery in the US is a dozen times more expensive than in the rest of the world.

  34. jan says:

    @Jeremy R:

    So, what you’re saying is that this guy’s opinion piece is worthless because he works at a conservative think tank , is an advisor to Romney, and has business experience with banking and venture capitalists?

    Moving on….

    Yesterday my husband and I were watching the salmon fisherman boats scattered out in the ocean, following their migration up the coast, upon the recent reopening of salmon season. We talked to a couple traveling in a VW van having, what I thought to be German accents. Instead they were both from Poland.

    High school sweethearts, they immigrated here shortly after the fall of the Berlin Wall. They were elated to be Americans, comparing and contrasting their life in Communist Poland to what it is today. Everything was government controlled, from property, the press, speech. If you listened to something that was not state sponsored you had to do in secretly. People turned you in if you said the wrong thing. On and on they talked. And, it reminded me of how much we take for granted over here. They said their daughter didn’t understand the concept of freedom like they did. And, I responded that incrementally we are going in the direction they escaped from. They agreed.

    With this conversation in mind, I ran across another article describing the often subtle but insidious route of government run medicine: What Soviet Medicine Teaches Us

    Just so you can run the author through the google sterilizer —> by Yuri N. Maltsev–senior fellow of the Mises Institute, worked as an economist on Mikhail Gorbachev’s economic reform team before defecting to the United States. He is the editor of Requiem for Marx. He teaches economics at Carthage College.

    The proclaimed advantages of this system were that it would “reduce costs” and eliminate the “waste” that stemmed from “unnecessary duplication and parallelism” — i.e., competition.

    These goals were similar to the ones declared by Mr. Obama and Ms. Pelosi — attractive and humane goals of universal coverage and low costs. What’s not to like?

    Age discrimination is particularly apparent in all government-run or heavily regulated systems of healthcare. In Russia, patients over 60 are considered worthless parasites and those over 70 are often denied even elementary forms of healthcare.

    In the United Kingdom, in the treatment of chronic kidney failure, those who are 55 years old are refused treatment at 35 percent of dialysis centers. Forty-five percent of 65-year-old patients at the centers are denied treatment, while patients 75 or older rarely receive any medical attention at these centers.

    In Canada, the population is divided into three age groups in terms of their access to healthcare: those below 45, those 45–65, and those over 65. Needless to say, the first group, which could be called the “active taxpayers,” enjoys priority treatment.

  35. Scott O says:

    @jan: Do you have any evidence that this

    In the United Kingdom, in the treatment of chronic kidney failure, those who are 55 years old are refused treatment at 35 percent of dialysis centers. Forty-five percent of 65-year-old patients at the centers are denied treatment, while patients 75 or older rarely receive any medical attention at these centers.

    is true? That seems unbelievable to me so I tried to look into it. Turns out that article you linked to by Yuri N. Maltsev is from 1994. The source he gives for this claim is a book, Joseph L. Bast, Richard C. Rue, and Stuart A. Wes-bury, Jr., Why We Spend Too Much on Health Care and What We Can Do About It (Chicago: The Heartland Institute, 1993), p. 101. Here the Heartland Institute says “The full text of the book is available online in Adobe Acrobat’s PDF format; click here” but that leads to page not found.

    Do you believe that 45% of 65 year old patients are denied dialysis treatment in the United Kingdom?

  36. Jeremy R says:

    @jan:

    So, what you’re saying is that this guy’s opinion piece is worthless because he works at a conservative think tank , is an advisor to Romney, and has business experience with banking and venture capitalists?

    Perhaps not worthless as it gives some insight into what rhetoric he thinks will advance the interests of his various partisan loyalties, but beyond that yes, the litany of his conflicts of interest make him hopelessly compromised when it comes to making any sort of objective analysis.

  37. HarvardLaw92 says:

    Again, I think we may be presuming too much here. Whether or not this position re: the Commerce Clause proves to be dicta in the future will have to be determined in, well, the future.

    We all jumped to the conclusion that Lopez represented a doctrinal shift with regard to the Commerce Clause.

    and then along came Raich. Moral of the story: let’s not get ahead of ourselves.

  38. HarvardLaw92 says:

    @Gustopher:

    Again, let’s not get ahead of ourselves. Presuming that the court just overturned South Dakota v. Dole is premature.

  39. sam says:

    @jan:

    Also, I don’t think you can compare something working in one state, as insurance that it will be adaptable and acceptable for each of the other 49 states, as every state has a different demographic, HC problems, issues etc.

    On this point, Mittens disagrees with you (or did as recently as three years ago). See, Mr. President, What’s the Rush?:

    Health care cannot be handled the same way as the stimulus and cap-and-trade bills. With those, the president stuck to the old style of lawmaking: He threw in every special favor imaginable, ground it up and crammed it through a partisan Democratic Congress. Health care is simply too important to the economy, to employment and to America’s families to be larded up and rushed through on an artificial deadline. There’s a better way. And the lessons we learned in Massachusetts could help Washington find it.

    No other state has made as much progress in covering their uninsured as Massachusetts. The bill that made it happen wasn’t a rush job. Shortly after becoming governor, I worked in a bipartisan fashion with Democrats to insure all our citizens. It took almost two years to find a solution. When we did, it passed the 200-member legislature with only two dissenting votes. It had the support of the business community, the hospital sector and insurers. For health care reform to succeed in Washington, the president must finally do what he promised during the campaign: Work with Republicans as well as Democrats.

    Massachusetts also proved that you don’t need government insurance. Our citizens purchase private, free-market medical insurance. There is no “public option.” With more than 1,300 health insurance companies, a federal government insurance company isn’t necessary. It would inevitably lead to massive taxpayer subsidies, to lobbyist-inspired coverage mandates and to the liberals’ dream: a European-style single-payer system. To find common ground with skeptical Republicans and conservative Democrats, the president will have to jettison left-wing ideology for practicality and dump the public option.

    Apparently, Obama took Romney’s advice.

  40. sam says:

    Ah, sorry, left out the punchline:

    The cost issue

    Our experience also demonstrates that getting every citizen insured doesn’t have to break the bank. First, we established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did [my emphasis], or tax credits, as others have proposed, encourages “free riders” to take responsibility for themselves rather than pass their medical costs on to others. This doesn’t cost the government a single dollar.

  41. @jan:

    When asked about the success of RomneyCare as healthcare, you gave it one throw-away line:

    However, the etiology of HC, as well as the populations it was supposed to represent and help, are quite different.

    And then you went into a political interpretation.

    (Worse yet, the “different populations” is of course a dog whistle.)

  42. I think the meta lesson from Jan is that she really doesn’t want to talk about health care.

    Health care is not her focus. Political battle with the left her focus, and if health care is a casualty of that, so be it.

    I’m sure she is not alone in that motivation.

  43. mattb says:

    @Scott O:

    The source he gives for this claim is a book, Joseph L. Bast, Richard C. Rue, and Stuart A. Wes-bury, Jr., Why We Spend Too Much on Health Care and What We Can Do About It (Chicago: The Heartland Institute, 1993), p. 101.

    BTW, The Heartland Insitute initially made it’s name for itself as a lobbying group pushing “scientific” evidence to show that secondhand smoke DID NOT cause cancer. More recently, they’ve become one of the leading the anti-Anthropomorphic Climate Change groups.

    More on Heartland’s background: http://en.wikipedia.org/wiki/The_Heartland_Institute

  44. mattb says:

    Oh, and more recently Heartland was behind the tasteful billboards that featured images of the Unibomber accompanied by the words “I still believe in global warming, do you?” Before the campaign was pulled after public outcry, the idea was to have future billboards featuring Charlie Manson, Castro, and Osama Bin Laden.

    So not exactly the most neutral of sources.

  45. jan says:

    @sam:

    Sam, your intention to show a similarity between Obama’s way and Romney’s failed:

    Health care cannot be handled the same way as the stimulus and cap-and-trade bills. With those, the president stuck to the old style of lawmaking: He threw in every special favor imaginable, ground it up and crammed it through a partisan Democratic Congress. Health care is simply too important to the economy, to employment and to America’s families to be larded up and rushed through on an artificial deadline. There’s a better way. And the lessons we learned in Massachusetts could help Washington find it.

    No other state has made as much progress in covering their uninsured as Massachusetts. The bill that made it happen wasn’t a rush job. Shortly after becoming governor, I worked in a bipartisan fashion with Democrats to insure all our citizens. It took almost two years to find a solution. When we did, it passed the 200-member legislature with only two dissenting votes. It had the support of the business community, the hospital sector and insurers. For health care reform to succeed in Washington, the president must finally do what he promised during the campaign: Work with Republicans as well as Democrats.

    Massachusetts also proved that you don’t need government insurance. Our citizens purchase private, free-market medical insurance. There is no “public option.” With more than 1,300 health insurance companies, a federal government insurance company isn’t necessary. It would inevitably lead to massive taxpayer subsidies, to lobbyist-inspired coverage mandates and to the liberals’ dream: a European-style single-payer system. To find common ground with skeptical Republicans and conservative Democrats, the president will have to jettison left-wing ideology for practicality and dump the public option.

    Every embolded part of that excerpt shows a differentiation between Romney’s method and outcome to Obama’s method and outcome. Romeny created and passed a bill that was done in a bi-partisan collaberative fashion. It took two years of crafting and bonified negotiations to get this done, versus Obama’s year long divisive (“I won”) process. The final MA bill was not ‘larded up’ with crap, being a slim 170 pages long, versus Obama’s of 2700 pages of mystery legislation and bureaucracy. Only two people dissented when the MA HC reform bill was passed in a bi-partsan vote. None of that happened with the Obama administration. There was heavy dissent in both the democratic majority House and Senate — only achieving passage on a strickly partisan vote by the democrats.

    Furthermore, MA employed more free market options in it’s final bill (which would have been even greater should 8 measures of Romney’s not have been vetoed). The business community, ultimately came on board, along with the medical community and the people served by it. This has not happened under Obama care. The business community has stridently opposed Obamacare, state doctors have formed branches of opposition in almost a dozen states to Obamacare, and a majority of people continue to want it repealed.

    Apparently, Obama took Romney’s advice.

    No, apparently he did not!

  46. jan says:

    Just to add further credence as to how divisive Obamacare remains, despite the recent SCOTUS ruling, here are some other polls and one opinion piece to mull over:

    With a 1000 LV’s, sampled June 29-30, MOE +/- 3, here is the latest Rasmussen poll weighing in on the those who want the ACA repealed, versus those who don’t.

    The latest Rasmussen Reports national telephone survey shows that 52% of Likely U.S. Voters favor repeal of the health care law, while 39% are opposed. That’s little changed from a week ago. Indeed, support for repeal has barely budged since the law was passed.

    Another Rasmussen Poll done is showing what some speculate Robert’s didn’t want to have happen: a diminishment of the high court in the eyes of the people. The immediate reaction is that more people now think the court is too ‘liberal,’ which I think is more likely an over-reaction to the surprising way Robert’s tacked with his opinion.

    Finally, Michael Barone, in many conservative circles, is considered ‘the Dean of electoral politics. His dry analysis, is usually absent the emotional display exhibited by both the right and left sides. He’s been around long enough to know trends, sense the public’s reaction, and give electoral insights into the inclination of state’s voting habits. His post-ACA ruling view is that Obama’s court win may prove hollow.

  47. john personna says:

    @jan:

    Are you saying you like RomneyCare and isn’t the mandate bugging you now?

  48. David M says:

    @jan: The poll you quoted is useless and means absolutely nothing. Polls that do not differentiate between people on the left who support single payer health care and ones on the right who want the law repealed and not replaced do not tell us anything. For a poll on health care reform to be useful, it can’t just ask a simple repeal/replace question.

    Also, this distinction has been pointed out to you before, so at this point I have to conclude you are willing to repeat statements already shown to be false about the law’s popularity, purely for the partisan politics you claim to decry.

  49. wr says:

    @jan: “and now having a rather murky Constitutional ending.”

    “Murky” in this case meaning “my team lost.”

    Somehow I suspect that if it had been 5-4 in the other direction, there would have been nothing murky about it, and that Jan would have been trumpeting about the sunshine of freedom twinkling through the flags of liberty.

  50. mattb says:

    @jan: Complete side note, but a good moment to talk about data/evidence…

    You’ve just provided us with a link to a Rasmussen Poll, and to Washington Examiner columnist Michael Barone — who you note is “in many conservative circles, is considered ‘the Dean of electoral politics.” (Emphasis Mine)

    You’ve provided two sources, which by all accounts are weighted towards presenting conservative/Republican views.

    So what you’ve done very nicely is provide a data point on how divisive this action is thought to be by people who lean conservative not people in general.

    If you were going for the second category, you would need to pull data from a wider range of sources — including those that tend to track more liberal as well.

    I still think those are great links, but they’re not, by themselves, showing what you seem to suggest that they are showing.

  51. anjin-san says:

    @ Jan

    You’ve got a poll, I’ve got a poll:

    Meanwhile, a new Kaiser poll finds a majority of Americans — 56% — now say they would like to see the law’s detractors stop their efforts to block its implementation and move on to other national problems.

    http://www.kff.org/kaiserpolls/8329.cfm

    I make no bones about the fact that I am a partisan in this matter. Are you every going to abandon the fiction that you are not a highly partisan conservative? Rasmussen gets paid to tell conservatives what they want to hear, and we all know it.

  52. An Interested Party says:

    Perhaps the Romney campaign should hire Jan to help them with their talking points…I mean, they are already talking about how the tax isn’t a tax but a mandate…to Jan’s disappointment, there’s no way that Romney will be able to run away from the fact that PPACA is based on what he did in Massachusetts….the ads will write themselves…maybe Republicans will be able to get another nominee at the convention…