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


FalseHopeNoChange 1 year, 10 months ago

Should have the 'Flexible Dictator and Chief stolen money for his 'Obamacare' from Medicare?

$$$Medicare Is Running a Cash Deficit – and Has Been For Some Time. The Hospital Insurance Trust Fund has been running a deficit since 2008 and is projected to continue to do so forever. According to a former director of the Congressional Budget Office, in 2011, the Medicare program ran a $288.3 billion cash shortfall. In fact, since the creation of the program in 1965, Medicare has run cash deficits each year, except 1966 and 1974.7

Under the current fee-for-service Medicare program, seniors do not have the peace of mind that they are protected against significant out-of-pocket medical expenses. As the President’s Fiscal Commission explained, “Medicare beneficiaries must navigate a hodge-podge of premiums, deductibles, and copays that offer neither spending predictability nor protection from catastrophic financial risk.”8

The Medicare Program Spends a LOT. Under current law and assuming a 10-year ‘Doc Fix’, net Medicare spending totals $2.8 trillion over the next five years, and $6.6 trillion over the next 10 years. This is 25 percent of all mandatory spending, and approximately 15 percent of all federal spending.9

About 25 Percent of Medicare Program Expenditures Occur Within the Last Year of Life.10


its_just_math 2 years, 2 months ago

"Health care case will be a landmark"

reads better as:

Health care case will be a skidmark


FalseHopeNoChange 2 years, 2 months ago

"Affordable Care Act" is a lie. Obamacare is not "affordable". The ACA logo is used to buffalo the poor. Liberals think "the poor" are just cognizant enough to understand the "Affordable" part and not conscious enough to get the "act" part. Afforable Care is an Act.

If I were the Liberal propagandists, I stick with not lying and go with Obamacare.


beatrice 2 years, 2 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.


beatrice 2 years, 2 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"?


ivalueamerica 2 years, 2 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.


its_just_math 2 years, 2 months ago

The best thing if O'care is torpedoed by the SC other than it's torpedoed, is that The Anointed One's "crowning achievement" (along with Pewlosi and Reid-----two despicable creatures), it will hurt Obama in the G/E.


just_another_bozo_on_this_bus 2 years, 2 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?


cato_the_elder 2 years, 2 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.


FalseHopeNoChange 2 years, 2 months ago

And now Bush 2, Obama, wants to takeover healthcare? what? huh?

Gerald Celente: The West is headed to dictatorship. It's already happening. The merger of state and corporate power is by definition called fascism. I just mentioned the Defense Authorization Act. Before you had that you had the abrogation of the Constitution under Bush, with the Patriot Act, which Obama reinstated and made even tougher by signing this bill. When I say the merger of state and corporate powers, look at the $16.1 trillion that the Federal Reserve has funneled into businesses around the world. Whatever happened to that thing called capitalism? This is not capitalism; it's fascism! The more societies break down and the bigger the screw-ups at the top, the harder they clamp down on the bottom. You see it going on around the world; they call it austerity measures. How about calling it enslavement?


Getaroom 2 years, 2 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!


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