|Posted by haimdatsawh on June 29, 2012 at 8:25 AM|
How health care law survived, and what's next
By Richard Wolf, Brad Heath and Chuck Raasch, USA TODAY
WASHINGTON — President Obama 's landmark health care law remains standing today because of one Supreme Court justice's unlikely vote and for one ironic reason with huge political implications: Its key provision is a tax.
By Saul Loeb, AFP/Getty Images
Supporters of President Obama's health care legislation celebrate outside the Supreme Court in Washington, D.C.
By Saul Loeb, AFP/Getty Images
Supporters of President Obama's health care legislation celebrate outside the Supreme Court in Washington, D.C.
In a splintered 5-4 decision with momentous consequences for the nation's health care system, balance of government power and politics, the high court handed Obama a stunning election-year victory. Chief Justice John Roberts and the court's four liberal-leaning justices held that the law's insurance mandate represents a tax on people who do not get health coverage — a tax the Constitution gives Congress the power to impose.
Ever since three historic days of oral arguments in March revealed broad skepticism among the court's conservative justices that requiring people to buy health insurance was constitutional, the mandate looked to be in jeopardy. Shortly after 10 a.m. on Thursday inside a hushed courtroom, however, Roberts gave the mandate, the law — perhaps even the president — a new lease on life.
INTERACTIVE: Health care by the numbers
"The Affordable Care Act 's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax," Roberts wrote. "Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
Using that logic, the chief justice saved what both sides call "Obamacare" — the most sweeping overhaul of the U.S. health care system since the creation of Medicare and Medicaid in 1965, one that presidents from Richard Nixon to Bill Clinton tried and failed to achieve.
Now it's full steam ahead for the law, which already has provided limited benefits for some seniors, young adults and people with pre-existing conditions. By January 2014, unless Congress intervenes, millions of Americans will have to obtain insurance or pay penalties, insurers will be banned from denying coverage based on pre-existing conditions, states will have to decide whether to expand Medicaid and create new insurance exchanges where people can shop for affordable coverage, and many small businesses will have to cover workers with the help of tax credits or pay penalties.
Videos from the Supreme Court ruling on the health care law.
With a 59-page stroke of his pen, Roberts — a George W. Bush nominee whose 2005 confirmation as chief justice was opposed by one Sen. Barack Obama — sided with the court's four liberal justices in upholding the most consequential and controversial piece of legislation enacted during Obama's presidency.
The law now "survives largely unscathed," said Justice Ruth Bader Ginsburg, who like most justices on the court was unhappy about some part of the decision. Four justices, in fact — just one short of a majority — would have struck down the entire law, jeopardizing provisions that are already benefiting young adults, seniors and others.
"The Affordable Care Act now must operate as the court has revised it, not as Congress designed it," lamented Justice Anthony Kennedy on behalf of himself and Justices Antonin Scalia, Clarence Thomas and Samuel Alito . He called it "a vast judicial overreaching."
Overreaching or not, it's certainly a rewrite. The majority's decision means that Medicaid will be expanded in many states, but with a ban on federal reprisals for states that choose otherwise. And it means most Americans must get health insurance — with some exceptions, based largely on income — but not because Congress has authority over interstate commerce, the government's main argument. The four liberal justices believed that, but Roberts said the Constitution doesn't give Congress power "to regulate what we do not do" or "to regulate the individual from cradle to grave."
How the justices voted
It was hard to tell Thursday which justices were on which side of the decisions on federal health care law without a score card. A look at how they voted:
Uphold the law under the Constitution’s taxing clause, 5-4
Yes: Chief Justice John Roberts, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan
No: Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, Samuel Alito
Strike down the law under the Constitution's commerce clause, 5-4
Yes: Roberts, Kennedy, Scalia, Thomas, Alito
No: Ginsburg, Breyer, Sotomayor, Kagan
Strike down federal reprisals on states over Medicaid expansion, 7-2
Yes: Roberts, Breyer, Kagan, Kennedy, Scalia, Thomas, Alito
No: Ginsburg, Sotomayor
Claim jurisdiction over the law despite Anti-Injunction Act, 9-0
Yes: All nine justices
Rather, Roberts lent his vote because, he said, Obama and his Democratic allies had enacted a new tax — one that the Congressional Budget Office has projected will raise $4 billion annually by 2017.
Never mind that Democrats avoided the word "tax" in writing the law, choosing to call the levy for failing to buy health insurance a "penalty" or "shared responsibility payment." And never mind that Obama ran for president in 2008 and is doing so again on the promise that he will not tax anyone with household income below $250,000.
"I think it's very clear that Chief Justice Roberts wanted to avoid the outcome of taking the whole law down," said former Florida attorney general Bill McCollum, who filed the first lawsuit on the day the law was enacted in 2010. He called the ruling "very contrived."
Obama was able to stand in the East Room of the White House shortly after noon and claim a sorely needed victory because the law, in 2016, will tax those who decline to buy insurance up to $2,085 per family or 2.5% of income, whichever is larger.
The president, who seemed to have one eye on November and the other on history, tried to defuse the political backlash that began minutes after the court majority's opinion was released.
"The highest court in the land has now spoken," Obama said. "We will continue to implement this law. And we'll work together to improve on it where we can. But what we won't do — what the country can't afford to do — is refight the political battles of two years ago."
That wasn't the way Republican challenger Mitt Romney was reading things just a few blocks from the court's marble chambers.
"Our mission is clear," the presumptive GOP presidential nominee said. "If we want to get rid of Obamacare, we're going to have to replace President Obama."
Limits on federal power
The decision shows once again that the high court is willing to weigh in on legislative issues and influence the political balance of power. Since its 5-4 decision affirming Bush's election as president over Al Gore in December 2000, the justices have tackled issues ranging from affirmative action to campaign finance with equal aplomb.
This case, however, stood out from the crowd — and the ruling was intoned before a crowd that included several members of Congress, spouses of justices and at least one former justice: 92-year-old John Paul Stevens .
"There's no modern precedent for the gravity of (the decision)," said Neal Katyal, who represented the Obama administration in court as acting solicitor general in 2010-11. "You'd have to look all the way back to the New Deal or Brown v. Board of Education in 1954 to find something similar, of comparable dimension."
The legal fallout from the decision and various dissenting and concurring opinions looms large, particularly because the ruling embraces potentially significant limits on the federal government's authority to regulate commerce and spend money.
Roberts joined the court's conservatives in finding that Congress' power to regulate commerce does not give lawmakers the authority to force people to buy insurance. And he joined six other justices in saying that Congress cannot use its checkbook to coerce states into going along with policies they don't like — the first time in more than a generation that the court had put any real limits on the federal government's power to spend money.
Those findings mean nothing for the future of the health care law, because its status as a tax made it constitutional. But lawyers on both sides of the case said they could change the contours of the federal government's authority for years to come.
Although lawyers who challenged the law said they were disappointed that they had not persuaded Roberts — and, by extension, the court — to find that the individual mandate was unconstitutional, many said they were encouraged by his reasoning. As recently as two years ago, many constitutional scholars had dismissed the constitutional objections to the health law as baseless; on Thursday, most of those objections commanded a majority of the justices.
"All of us, of course, are disappointed with the ultimate outcome today, but we cannot lose sight of what we've accomplished," said Pam Bondi , the attorney general in Florida, which led the 26-state challenge to the law. "We learned that there are enforceable limits on Congress' power under the commerce clause. We've always said that is very important."
Similarly, Paul Clement , the former Bush administration solicitor general who argued most of the challenge before the justices, said that "it would be hard to think of a case where more of the arguments we made were accepted by the court" in a lost cause. He said the court's 7-2 tilt for limiting the penalties states could face for opting out of a Medicaid expansion was "really quite significant."
Still, not all of the challengers shared that view.
"You can look for silver linings in the cloud, but it's still a cloud," said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws by crafting them as taxes instead of mandates.
The ruling won't mark the end of court action over the law — far from it. Already, religious groups challenging the law's inclusion of contraception among the services to be covered by insurers are vowing more lawsuits.
"People would be mistaken to think that upholding the constitutionality would mark the end of the litigation," said Sheila Burke, a Harvard University health professor who was former Senate Republican leader Bob Dole 's top aide.
States face difficult decisions
The decision is likely to grease the current state of gridlock in many states, particularly those controlled by Democratic proponents of the law.
"It provides a substantial push to accelerate implementation, at the state legislature level in particular," said Larry Levitt, a senior vice president at theKaiser Family Foundation , a health research organization.
The decision also gives states more wiggle room in how to implement the law by making Medicaid expansion voluntary. The court struck down a portion of the law that would have forced states to accept a major expansion of Medicaid to all Americans earning up to $30,733 for a family of four or risk losing all federal funds under the program.
Roberts called that part of the Affordable Care Act "a gun to the head" by threatening as much as 10% of states' budgets. But states also will be required to comply with the rest of the act, such as by setting up insurance exchanges; only 15 states have done so already.
A uniform pace of action in the states is unlikely. Some governors hailed the decision as an affirmation of changes they have made already. Others called it a misguided ruling and said they would comply only begrudgingly.
Michigan Gov. Rick Snyder , a Republican, said his state would create a health insurance exchange. But the law, he said, "misses the point on the most important reforms needed in our health care system": cost controls.
Clement, the states' lawyer, acknowledged that their victory in court on the Medicaid language might prove Pyrrhic. Because new federal Medicaid funds will "come from the federal tax revenues that are imposed on all 50 states," Clement said, "there's still going to be real practical incentive for them to take the new money."
Not all of them will, predicted David Merritt , a senior adviser at Leavitt Partners, a health consultancy headed by former Republican secretary of health and human services Michael Leavitt . While the federal government initially will pay for the Medicaid expansion, cash-strapped states eventually will have to kick in at least 10% of the cost.
"Long term, they're going to be on the hook," Merritt said. "They're not going to be on the hook for a lot, but any amount is huge when you're broke."
Next stop: Voting booths
In the wake of the decision, Republicans had one message: November has never been more important. Romney, GOP officials and strategists said the ruling only raised the stakes for the 2012 election and would provide the fuel needed to get their most enthusiastic supporters to the polls.
"What the court did not do on its last day in session I will do on my first day if elected president of the United States," Romney said in a four-minute statement at a building across from the U.S. Capitol . "I will act to repeal Obamacare."
His effort received an immediate fundraising boost. By late afternoon, spokeswoman Andrea Saul tweeted that the campaign had raised $2.5 million in the wake of the ruling. And in those hours, the National Republican Congressional Committee — the party's House campaign arm — issued a series of e-mails that said the health care law would become permanent unless many Democratic incumbents are "replaced" in the fall.
Republican strategists said the Supreme Court decision made sure the GOP's conservative base would be out in full force.
The conservative group Americans for Prosperity announced it would launch a $9 million television advertising blitz Friday in 16 states to highlight opposition to the law.
Within an hour of the decision, Majority Leader Eric Cantor, R-Va., said the House would vote on a repeal of the law July 11. Nothing new there: The House has voted 30 times already to repeal parts or all of the law, but the measures have gone nowhere in the Democratic-controlled Senate.
Senate Republican Leader Mitch McConnell said GOP efforts to push a repeal are just beginning: "There is only one way to truly fix Obamacare, only one way, and that is a full repeal."
Republicans' best chance to make changes in the law, however, lies in the budget process, because they can avoid the Senate's 60-vote threshold. That means everything with a dollar sign — Medicaid expansions, subsidies for the poor, Medicare savings, new taxes — can be attacked now and in future years.
Douglas Holtz-Eakin , an economist and former senior policy adviser for Sen. John McCain's 2008 presidential campaign, said Republicans' message should be "framed very carefully" in terms of the law's impact on jobs and the economy.
"If conservatives are to realize their hopes of repealing the Affordable Care Act, the electoral process is their only remaining recourse," said William Galston , aBrookings Institution analyst and an adviser in former president Bill Clinton's administration. "Once the dust settles, expect them to mobilize and work even harder for unified government under Republican control. And expect Mitt Romney to wave the bloody shirt all the more vigorously."
Indeed, in a presidential election year, the court's ruling will only be amplified between now and November.
"The Supreme Court has spoken," said Randy Barnett , the Georgetown University law professor who helped represent businesses challenging the health care law. "Now, the people will decide."
Contributing: Jackie Kucinich, Aamer Madhani and Kelly Kennedy
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