WWS Experts Weigh in About the ACA Supreme Court Decision

Below is an article from the Woodrow Wilson School of Public and International Affairs at Princeton, which discusses key questions of the Affordable Care Act with Princeton faculty, including Future of Children Senior Editor Janet Currie.

Keith Wailoo, Townsend Martin Professor of History and Public Affairs Woodrow Wilson School of Public and International Affairs

ACA: Lessons from the Road Taken

“The Supreme Court’s ruling on the Affordable Care Act (ACA) is surely a health care milestone, but it is also a remarkable civics lesson about the political and legal complexities involved in making policy on such a grand scale.

“The tortuous path of the health care law illustrates why major initiatives like this happen so infrequently. First, there was the brief window created by Barack Obama’s election and the unexpected Democratic take-over of both houses of Congress with a filibuster-proof majority in the Senate. The possibilities for reform were nearly snatched away many times, most notably after the death of Senator Kennedy. Even after the President and Congressional Democrats took the daring risk of resuscitating the law – knowing that it would cost them politically in the 2010 elections – the political and legal fate of the law seemed unclear. For years to come, the episode will illustrate risk-taking leadership, as well as the ugly horse-trading and imperfections of the legislative process.

“The second tortuous phase of the ACA – the legal debate – offers another lesson… about the thin line separating politics and ideology, on one hand, and constitutional reasoning on the other. Yes, the Supreme Court’s decision revolved around matters of legal interpretation: the Commerce Clause (the limits of the federal government’s power to regulate interstate commerce) and the federal government’s power to tax. But the ruling also highlighted the tensions between the so-called liberal wing of the court and conservative bloc.

“In the interplay of politics and law, the most important civics lesson to emerge from the court phase of the ACA was the tension between two conservative justices – Antonin Scalia and John Roberts.

“Scalia rarely favors expanding federal power, but this time he seemed to be swayed by the political milieu. He echoed the libertarian objections to the ACA mandate, noting that ‘everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.’ By contrast, Chief Justice Roberts tried hard to mark the line between politics and law. In his opinion, ‘Members of this Court are vested with the authority to interpret the law: we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.’ With these words, Roberts walked the high court back from the political precipice. Had he sided with the dissenters, commentators would have questioned the High Court’s partisan politicization – seeing them as nothing more than politicians in black robes – for decades to come. Robert’s ruling saved the court from this fate.

“Looking ahead, what can we expect as the legal dust settles?

“Calls for repeal will continue, but they will fade. The legal imperative to implement the law pushes elected officials beyond repeal. Governors, even those from the 26 states who argued against the law, must make tough policy decisions, getting into the weeds of coverage and setting up insurance exchanges. Some will continue to resist, at least until the November elections. All along the tortuous path, there has been an irony – the states whose citizens will benefit most from the law’s provisions are often those where the elected leaders are most whipped into frenzy over the laws unconstitutionality. How long that frenzy will last is difficult to say – surely it will dissipate, but perhaps not until after Election Day 2012.

“Of course, the most important effect of the Supreme Court decision – punctuating the nearly four-year fight – will be on the people’s health. Now that the political and the constitutional law phases have played out, we have an opportunity to refocus, finally, on health and health care. Perhaps Americans will shift to the underlying story of health care reform that started us down this path in the first place – the people with pre-existing conditions, the young adults without insurance, the small businesses looking for affordable ways into the health insurance market, and the many others for whom a new world of possibilities has just opened. When the dust of this sandstorm has settled, this will be the lasting story of the ACA. But after so many years of political and legal saturation, it may be a while before we can focus again on the people whose lives will be improved.”

Keith Wailoo is author of “The Troubled Dream of Genetic Medicine,” “Dying in the City of the Blues: Sickle Cell Anemia,” the “Politics of Race and Health; How Cancer Crossed the Color Line,” and other studies on the history and politics of health care in America. He is co-editor of “Three Shots at Prevention: The HPV Vaccine and the Politics of Medicine’s Simple Solutions.” At Princeton, he teaches courses on history and health policy; on race, drugs, and drug policy; and (in the fall 2012 with Princeton University President Shirley M. Tilghman) Modern Genetics and Public Policy.

Uwe Reinhardt, James Madison Professor of Political Economy and professor of economics and public affairs, who is recognized as one of nation’s leading authorities on health care economics:

“It may seem that the Supreme Court’s decision to uphold the Affordable Care Act of 2010 hinged on semantics: whether the letter sequence ‘p e n a l t y’ is in the nature of punishment for a misdemeanor or a tax. In fact, from an actuarial perspective, one might construe the penalty as a crude approximation to the actuarial average cost uninsured, individuals as a group might visit on hospitals in the form of unpaid bills. Therefore the revenue from penalties should be paid hospitals through disproportionate share moneys.

“In fact, however, the Supreme Court decision is the outcome of just one more skirmish in a decade’s long fight over the question: to what extent must healthier and more fortunate Americans be their poorer and sicker brothers’ and sisters’ keepers in health care?

“The supporters of the ACA deserve a moment of joy over the Courts decision, but for them it is just a short ‘R and R,’ as soldiers call it. The next big battle will be fought in the upcoming presidential and congressional elections. It will be fierce and tenacious, supported by huge sums of money on both sides.

“Should Governor Romney win the White House and bring with that victory a Republican Congress, attempts will be made to repeal the entire Act, although that probably would not survive a filibuster by Democrats. But portions of the bill – especially the subsidies and Medicaid expansion – might be gutted through a budget reconciliation vote.

“In the end, though, the bluster that ‘I (or we) will repeal the entire ACA’ always evokes in me the image of a dog chasing a car. What will the dog do when the car stops?

“In this case, what alternatives to coping with the large number of uninsured and poor Americans who cannot pay out of pocket for health care do the opponents of the ACA have in mind?

“An answer to that question will be even more interesting that the Supreme Courts historic decision.

“So, stay tuned.”

Janet Currie, professor of economics and public policy; director, Center for Health and Wellbeing (CHW). The Center runs a program in U.S. Health Policy:

“This historic ruling removes the uncertainty about the constitutionality of the Affordable Care Act. The next test will come in November. In the meantime states have much to do setting up health care exchanges and preparing to expand their Medicaid programs. The ruling did allow states to opt out of the Medicaid expansion, but to do so would leave billions of federal dollars ‘on the table’ and would leave poor adults few options for health insurance coverage. There is likely to be great pressure on states to implement the Medicaid expansion from their own hospitals and medical providers.

“All we have learned from previous expansions of public health insurance programs to the previously uninsured suggest that it will make people happier and healthier — the recent expansion of Oregon’s Medicaid program also reduced the probability that people faced medical debt. But higher numbers of people with health insurance coverage generally means more medical spending rather than less.

‘Bending the cost curve’ is the next policy frontier, and this requires understanding the drivers of medical spending and variations in medical spending that are unrelated to health outcomes.”

Adel Mahmoud, Senior Policy Analyst Lecturer with the rank of Professor, Woodrow Wilson School and Molecular Biology

“The Supreme Court decision may open the way for the United States to join the rest of the world in offering ALL of its citizens a system that guarantees some form of healthcare coverage. I hope it adds strength to the Administration and those who care to focus on what matters for the future of the country without the diversionary tactics of politics as usual. The road ahead is still treacherous and needs thoughtful involvement of a lot of those planning or implementing one of the most complicated healthcare systems in the world. It is one step forward!”

Heather Howard, lecturer in public affairs at the Woodrow Wilson School and director of the State Health Reform Assistance Network*

“Today the Supreme Court affirmed the constitutionality of the Affordable Care Act, which would extend health insurance coverage to 32 million Americans. In a divided opinion, a majority of the court found that the individual mandate would be unconstitutional under the Commerce Clause, but surprisingly Chief Justice Roberts joined the liberal members to uphold it under Congress’ taxing authority. The court also affirmed the constitutionality of the Medicaid expansion, but in an interesting wrinkle held that Congress cannot withhold a state’s entire Medicaid funding if the state refuses to adopt the ACA expansion.

“The focus will now turn to state implementation, as states build health insurance exchanges, institute new insurance reforms to strengthen private insurance markets and ensure the availability of affordable insurance products, and prepare for the Medicaid expansion. Some states may still wait until after the election to start moving, while others are likely to build on planning work to date, jumpstarting their implementation work in an effort to meet the aggressive timelines in the ACA. While states appear now to have flexibility to reject the Medicaid expansion, there will be tremendous pressure from consumers, hospitals and other providers to take advantage of full federal funding in the initial years and to avoid gaps in coverage for lower-income Americans.”

*The State Health Reform Assistance Network is focused on setting up insurance exchanges, instituting insurance market reforms, expanding Medicaid to newly eligible populations, and streamlining eligibility and enrollment systems. Funded by The Robert Wood Johnson Foundation, it is providing states with essential resources to implement key health insurance coverage provisions of the Affordable Care Act.

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