Thursday, July 5, 2012

Some Comments on the Supreme Court Decision on the Affordable Care Act

The recent Supreme Court decision on the Affordable Care Act was peculiar, to say the least. The dissenting opinion does not discuss the controlling opinion of the Chief Justice, even where they agree, and takes issue with Justice Ginsburg's opinion, which they call a "dissent" when in fact it was also a partial concurrence. The dissenters are apparently really angry, and someone confirmed this and provided other information about the internal politics of the Court in a leak to CBS reporter Jan Crawford.

One question that has lawyers scratching their heads is what exactly the Court held about the Commerce Clause. The dissenters did not sign on to Chief Justice Roberts' opinion on this subject and neither did the four liberals. The four liberal justices, though, apparently agreed that the "Court" held that the mandate could not be justified by the Commerce Clause, even though they did not agree with this. From their point of view, what was important is that they did agree with the Chief Justice that the so-called mandate was justified by Congress's taxing power under the Constitution. The controlling opinion on the Commerce Clause, therefore, is that of the Chief Justice alone. What weight does that have as a precedent?

In fact, this may not matter that much, since lower courts are unlikely to get a case with anything like the fact pattern of the ACA case anytime soon, if ever. How the Court builds on this Commerce Clause decision and whether it does depends more on the future makeup of the Court than on the precedential value of this case.

Many observers seem to think that the Republican governors who say that they will reject the Medicaid expansion in the ACA, as they are more able to do as a result of the Supreme Court decision, are playing Republican politics and hedging their bets by hoping for a Romney win and ACA repeal. Assuming that the ACA is not repealed, most observers believe that the money that comes with the federal government offer is too great to refuse and that hospitals will be lobbying furiously in state capitals for their states to take the money. Otherwise, the hospitals will have to eat the costs of more uninsured patients showing up in emergency rooms. Moreover, the hospitals will feel some urgency about this since the ACA reduces the Disproportionate Share Hospital Payments for hospitals that provide more services than the average to low income patients who are uninsured or currently covered by Medicaid or the Children Health Insurance Program ("CHIP"). This is probably correct, but my guess is that some states will not sign up right away, which will be to their economic detriment.

The ACA relies heavily on the expansion of Medicaid to reduce the number of people without any kind of health insurance. Medicaid, unlike Medicare, is a joint program of the federal and state governments. Currently, some states are much more generous than other states, and, of course, the experience of those eligible for Medicaid in dealing with state bureaucracies varies depending on the state. The expansion of Medicaid is designed to bring some uniformity across the country regarding eligibility, but this may be thwarted for a while because of the Supreme Court decision and the internal politics of the Republican Party.

Medicaid and Chip are very large programs. John E. McDonough writes in his book, Inside National Health Reform (University of California Press, 2011): "Medicaid and CHIP are the nation's key public health insurance programs for about sixty million low- and lower-income Americans. While the programs cover approximately 15 percent of the U.S. population, Medicaid and CHIP cover more than 40 percent of lower-income Americans, 24 percent of African Americans, 23 percent of Hispanics, 53 percent of low-income children, and 41 percent of all U.S. births – as well as 20 percent of Americans living with severe disabilities, 44 percent of persons living with HIV/AIDS, and 65 percent of nursing home residents." (p. 142) Medicaid and CHIP cover more people than Medicare.

According to McDonough, the number of people covered by Medicaid and CHIP will increase to 82.2 million by 2019 if the ACA "is implemented as written." (p. 141) Of course, the Supreme Court has changed Title II of the ACA, which deals with Medicaid, and there are likely to be legislative changes before 2019 in any case. I am not convinced that the expansion of Medicaid is the best way to cover the poor, partly because the current Medicaid program has problems and partly because some states are not enthusiastic or very good at running health insurance programs for the poor, but it is certainly better than nothing. My hope is that, regardless of what the Supreme Court did, we will improve the provision of medical services for the poor in the coming years.

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