Archive for Sunday, January 22, 2012

Health care case will be a landmark

January 22, 2012


— The Supreme Court can pack large portents in small details. When in late March it considers the constitutionality of Obamacare, there will be five and a half hours of oral argument — the most in almost half a century. This is because the individual mandate (Does Congress’ power to regulate interstate commerce extend to punishing the inactivity of not buying insurance?) is just one of the law’s constitutionally dubious features.

An hour of argument will be devoted to whether Obamacare’s enormous expansion of Medicaid is so coercive of states that it is incompatible with federalism — the Constitution’s architecture of dual sovereignty. The court’s previous rulings about compulsion point toward disallowing this expansion.

Spending on Medicaid, a theoretically cooperative federal-state program, is approximately 40 percent of all federal funds given to states and 7 percent of all federal spending. Enacted in 1965 as a program for the poor, it has exploded. The increase in its costs by the end of this decade is expected to be $434 billion. Its cost is projected to rise 7.9 percent a year — faster even than Medicare’s (6.9 percent).

Under Obamacare, however, the cooperative nature of Medicaid has been radically revised in a way no states could have anticipated before becoming inextricably entangled with it. Obamacare requires states to cover all persons with incomes up to, effectively, 138 percent of the poverty level. The federal government will pay all increased costs (other than administrative costs) until 2016; by 2020 states will pay 10 percent of the expansion. But even with the federal government paying most of the costs, in many states their portion of Medicaid costs is the largest item in their budgets, even exceeding education. And Obamacare, which forbids states to make more restrictive the eligibility criteria it adopted before this new burden, would deny all Medicaid funds to noncompliant states.

This would cost most states billions of dollars. For example, 26 percent of Florida’s budget goes for Medicaid; if it lost federal funds, it would require 60 percent of all tax revenues to maintain today’s pre-Obamacare benefits.

In theory, state participation in Medicaid is voluntary; practically, no state can leave Medicaid because its residents’ federal taxes would continue to help fund it in all other states. Moreover, opting out of Obamacare’s expanded Medicaid would leave millions of poor people without affordable care. So Obamacare leaves states this agonizing choice: Allow expanded Medicaid to devastate your budgets, or abandon the poor.

The Constitution created a federal government of limited and enumerated powers, and promptly strengthened this with the 10th Amendment. The Supreme Court has held that the states therefore retain “a residuary and inviolable sovereignty” incompatible with federal “commandeering” of states’ legislatures and executives. Under Obamacare’s Medicaid expansion, states are dragooned for the furtherance of federal objectives.

In 1987, the court upheld a federal law denying a portion of federal highway funds to states that refused to implement a drinking age of 21. The court held that the threatened loss of funds — only 5 percent — was a “relatively small” inducement and hence “not so coercive as to pass the point at which pressure turns into compulsion.” The court thereby said the federal government cannot behave like Don Corleone, making offers states cannot refuse. At some point, government crosses the threshold of unconstitutional compulsion.

The crucial consideration is the degree of threatened impoverishment. Because of Obamacare, the nation needs clarity from the court. If it now thinks Congress has unfettered power to place conditions on states receiving money from it, the court should explicitly disavow its coercion doctrine. But if the coercion doctrine is to survive, Obamacare should not.  

The Obamacare issues of Medicaid coercion and the individual mandate are twins. They confront the court with the same challenge, that of enunciating judicially enforceable limiting principles. If there is no outer limit on Congress’ power to regulate behavior in the name of regulating interstate commerce, then the Framers’ design of a limited federal government is nullified. And if there is no outer limit on the capacity of this government to coerce the states, then federalism, which is integral to the Framers’ design, becomes evanescent.

So, the time the court has allotted for oral argument about Obamacare is proportional to the stakes. This case is the most important in the more than half a century since the Brown v. Board of Education cases because, like those, it concerns the nature of the American regime.

— George Will is a columnist for Washington Post Writers Group. His email address is


Getaroom 6 years, 5 months ago

And so pronounces King George Will. May King Will heretofore be known as "The All Knowing Constitutional God Head of The United Plutocracy of America " and let it be said that from this day forward the "will" of the Supreme Court, in all its grand neutrality, shall be granted permanent seating at the right hand of God Almighty along with the Kochs' of Brotherly Love and their treasure trove of campaign financing. And as campaigned promised, when The Newtrich has won his rightful place as head of The United Plutocracy of America, let it be know that, by law, no one will be required "by law" to have insurance of any kind and not ever again - so help him God and repeal insurance. Further more - all commons goods shall be returned to the Corporation of the Esteemed Supreme Ethical and Moral Free Market, as envisioned in a dream long ago by Ron Paul. And as sheeples of this Plutocracy we shall be the blessed ones who live under the Open Relationship Ideology of "King Newtrich the Sane". And may God bless The United Plutocracy of America. (New Plutocracy Flag lapel pins will soon be issued and required as part of the everyday dress code in your place of blessed corporate work.) Lest we forget what happened to Allen Press workers when they wore those axis of evil Halloween buttons! Praise the Plutocracy Lapel Pins!!!! Long live Corporations, for they are The Way, The Light and Our Salvation.
May Corporate Utopia begin!

cato_the_elder 6 years, 5 months ago

Excellent column. The only positive thing about Obamacare is that it has caused many Americans who've never understood what federalism is, or have never realized its critical importance to our system of governance, to wake up and learn what would happen to that concept if Obamacare were upheld legally. The concept of federalism is the bedrock of our Constitution. If Obamacare is upheld, from that point forward American federalism will exist in name only.

cato_the_elder 6 years, 5 months ago

If so, the system of federalism on which our country was founded will have been destroyed.

Of course, liberal socialists who fail to appreciate the essential freedoms on which this country was founded, including the freedom from oppressive centralized government, won't care.

just_another_bozo_on_this_bus 6 years, 5 months ago

I won't be surprised if the SC rules the whole thing unconstitutional, and they'll likely rely on the same rationale used in Bush v. Gore-- just 'cause.

But it'll be interesting to see what happens after that-- will Republicans finally come clean that they really don't care about anyone but the .01%, and implement a final solution for the rest?

jafs 6 years, 5 months ago

I think they'll rule the mandate unconstitutional.

I don't know about the rest - I'd have to look into this Medicaid expansion.

And, I think it'll be a 5-4 ruling.

just_another_bozo_on_this_bus 6 years, 5 months ago

I think they'll have to find some way to rule the whole thing unconstitutional, even if it requires a good deal of legislating from the bench. The mandate came at the behest of the insurance companies, and was a major part of previous Republican proposals for healthcare reform (and why Romney pushed it through in Massachusetts's reform.)

If the mandate is overturned, but not the rest of it, the only solution for financing the remainder of Obamacare would be some form of single-payer/Medicare for all, and Republicans will never go for that.

jafs 6 years, 5 months ago

Well, we'll see.

It's certainly an interesting case.

progressive_thinker 6 years, 5 months ago

Jafs, I think that you are right. It will primarily hinge on how Chief Justice Roberts approaches the issue. If he carries forward the longstanding conservative position of judicial restraint, he will defer to congress. Otherwise, the individual mandate will go.

Actually, there are a number of ways that the insurance companies can live without the mandate. Fixed enrollment periods would be permissible within the ACA.

cato_the_elder 6 years, 5 months ago

Bozo, you misread your script from the Daily Kos. The party line you're supposed to regurgitate is 1 percent, not .01 percent.

just_another_bozo_on_this_bus 6 years, 5 months ago

"1%" is somewhat accurate, but the truth is that our politics and economy are dominated mostly by the .01%, which just isn't as easy to chant at an "occupation." But typing it someplace like here doesn't present that much of a challenge.

cato_the_elder 6 years, 5 months ago

Now that's a lame excuse if there ever was one.

cato_the_elder 6 years, 5 months ago

Not knowing the difference between 1 percent and .01 percent, that's what.

jafs 6 years, 5 months ago

Actually, I'm not at all sure that's true.

Folks who realize that a conservative court is ruling on the issue may understand that the only way to affect change at that level is to elect presidents who will appoint less conservative justices, ie. Democratic presidents.

So, it may actually help Obama, and rally liberals to vote for him.

Break out the Maalox :-)

jafs 6 years, 5 months ago

Could be.

It would be interesting to see how informed they are, and how accurate their understanding of the law is.

ivalueamerica 6 years, 5 months ago

In the meanwhile, Americans die every day simply from lack of access to health care while the wealthy debate.

God bless the rich, the rest can go to hell.

beatrice 6 years, 5 months ago

It is sad when a columnist can't be honest enough to call it what it is -- the Affordable Care Act.

"Obamacare" is a term invented and propagated by the vast conservative media.

Think a liberal media would cling to a false term like "Obamacare"?

cato_the_elder 6 years, 5 months ago

Sure. They use it all the time, because it best describes it.

Fred Whitehead Jr. 6 years, 5 months ago

You know, Bea, I have been thinking the same thing. The Obama haters have been using this incendiary term to try to enflame passions against what seems to me to be a pretty reasonable plan. You have to buy car insurance. Why? Because if you maim and kill someone with your car, and cannot compensate that person, you have done an irreparable harm. When you get sick, have no health insurance and go to the emergency room, who pays? Those of us who are responsible and do have health coverage do. Why should the hospital be expected to provide free care for those among us who are irresponsible in failing to provide for their health care expenses?

jafs 6 years, 5 months ago

The difference between car insurance and this plan is that states are responsible for setting auto insurance requirements, and this is a federal plan.

One of the main (and best) arguments against it, in my view, is that the federal government is not supposed to have this kind of power, while the states are.

If a state wants to set up such a plan, like Massachusetts, that's fine under this understanding of the constitution.

The fact that, given current practices, some of us wind up paying more because of other people's choices doesn't give the federal government the right to institute this legislation, unless you grant them very wide latitude of use of the ICC (Interstate Commerce Clause), which was clearly never intended to allow this sort of thing.

just_another_bozo_on_this_bus 6 years, 5 months ago

I consider it a pretty neutral term, so I don't mind calling it "Obamacare." It was his initiative to get it done, even if it got pretty corrupt and convoluted by the time the vested interests of Big Health, Big Pharm and Big Insurance finished calling in the chits they bought with the $kajillions they've paid in bribes over the last couple of decades.

The irony with conservatives using it as a pejorative is that their main complaint with it is that it doesn't suck nearly badly enough.

beatrice 6 years, 5 months ago

I am glad it is going to the Supreme Court, even the activist one we have now. This is an issue that needs to be settled. If it falls apart, then maybe the two parties can work together to come up with a viable alternative for the betterment of the country.

And maybe pigs will fly.

But I do want to see how it is settled. The Court will likely push a compromise of some sort.

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