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Posted at 5:09 PM ET, 01/31/2011

What happens if conservatives succeed in undermining the ACA?

By Ezra Klein

The legal theory currently in vogue in conservative circles holds that the Constitution's vision of "a central government with limited power" -- to use Judge Vinson's phrase -- permits the government to establish a single-payer health-care system that every American pays into through payroll taxes and that wipes out the private insurance industry but forbids the government from administering a regulated market in which individuals purchase private insurance plans and pay a penalty if they can afford coverage but choose to delay buying it until they're sick.

There's a chance conservatives will come to seriously regret this stratagem. I think it's vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process -- as that would sidestep both legal attacks and the supermajority requirement.

The resulting policy isn't too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy (which is how the House originally wanted to fund health-care reform). That won't get us quite to universal health care, but it'll get us pretty close. And it'll be a big step towards squeezing out private insurers, particularly if Medicaid and Medicare are given more power to control their costs.

By Ezra Klein  | January 31, 2011; 5:09 PM ET
Categories:  Health Reform  
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Comments

"The resulting policy isn't too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy"

Keep dreaming.

There's no way that gets through the Republican House. And there's no way we see a Speaker Pelosi again because Republicans are going to Gerrymander the county.

Posted by: krazen1211 | January 31, 2011 5:22 PM | Report abuse

At this point, Sovereign States have the option of withdrawing from Medicaid, thereby placing 100% of indigent care costs directly on the HHS dole: many states fiscally have no option other than departure from Medicaid. What does mass departure from Medicaid do to the CBO estimates of PPACA costs? What does it do to the federal budget?

Obviously, a bit of compromise -- the sort of compromise that Democrat John Kerry mentioned earlier this month -- is needed: despite pressure from the remaining Senate obstructionists, four patriotic Democrats must heed the will of The People and vote to repeal the PPACA so that a workable replacement can be developed and enacted... time is of the essence!

Today's cartoons are wonderful: see, for example, http://www.usnews.com/opinion/photos/healthcare-cartoons/77,
http://www.usnews.com/opinion/photos/healthcare-cartoons/69, and
http://www.usnews.com/opinion/photos/healthcare-cartoons/62. But does the President and the 111th Congress really want to be remembered as cartoon caricatures following the lead of now-censured Charles Rangel?

Posted by: rmgregory | January 31, 2011 5:26 PM | Report abuse


And all these costly, tortured legal arguments do exactly zero to reduce or cure disease. This is how we as a country spend our time, talent and treasure. And then we're surprised that other countries are gaining a edge on us.

Posted by: jack824 | January 31, 2011 5:40 PM | Report abuse

Because the modern GOP serves only the emotional, impulsive, and contradictory impulses of their base, I'm guessing they haven't through through the consequences of their challenging this law in court. People may not love this law, but they do love the idea of universal coverage and removing denials based on pre-existing conditions, neither of which are possible without some sort of mandate (unless their irrationality extends to the notion that Tort reform will somehow lead to universal coverage). The status quo is less popular than this law, and as essentially that what this law suit is asking for (return to the status quo), the Republicans are playing with real fire here.

Posted by: workmonkey | January 31, 2011 5:50 PM | Report abuse

I wonder if at some point people are going to learn about the subsidies in this bill?

I mean, if I were a family of four earning $40k and I found out that I was going to get $10,000 a year in subsidies...but not anymore...I might be a little ticked off...

The Republican party is very lucky that nobody uses the little calculator that the Kaiser Foundation put together. And that the Democrats are not telling anyone about the multi-thousand dollar subsidies for working families to buy insurance.

Posted by: theorajones1 | January 31, 2011 6:00 PM | Report abuse

"I mean, if I were a family of four earning $40k and I found out that I was going to get $10,000 a year in subsidies...but not anymore...I might be a little ticked off..."

At least liberals are honest that this is a blatant cash giveaway to buy votes.

Posted by: krazen1211 | January 31, 2011 6:06 PM | Report abuse

Yes, this is how it will happen, and that's why all liberals should be helping to "undermine the ACA". Those of us who are have the words of a guy named Barak Obama to rely on - even Judge Vinson noted Obama's opposition in 2008 to the mandate. Read this footnote on p. 76 of the decision, which even includes Obama's famous quote "if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house". He also notes the time Obama said "you can have a situation, which we are seeing right now in the state of Massachusetts, where people are being fined for not having purchased health care but choose to accept the fine because they still can't afford it, even with the subsidies. And they are then worse off. They then have no health care and are paying a fine above and beyond that."

Posted by: michaelh81 | January 31, 2011 6:15 PM | Report abuse

"Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy"

And how exactly would this type of plan become law?

Posted by: justin84 | January 31, 2011 6:21 PM | Report abuse

justin84: as Ezra said, all of that is easily doable in reconciliation.

Posted by: michaelh81 | January 31, 2011 6:30 PM | Report abuse

.

And the exemption to PPACA keeps rising:
To date, a total of 733 approved applicants have been granted the waiver nationally, totaling nearly 2.2 million enrollees.

.

Posted by: kstobbe1 | January 31, 2011 6:33 PM | Report abuse

"Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process -- as that would sidestep both legal attacks and the supermajority requirement."

I know it was a blow and all that, but you do remember that we had an election in November, right? Is this the best talking point Son of Jornolist can come up with?

Posted by: georgepurcell1 | January 31, 2011 6:44 PM | Report abuse

"justin84: as Ezra said, all of that is easily doable in reconciliation."

Hey genius, the filibuster is not your problem.

Posted by: krazen1211 | January 31, 2011 6:56 PM | Report abuse

krazen1211--majorities are always temporary. If the economy heals by 2012, Dems should gain seats.

2012 is before the mandate is even set to kick in. 2014 isn't too far past the beginning of the mandate anyway.

As an aside, in general, I don't think the middle class realizes that most of their taxes are to Social Security and Medicare.

Posted by: will12 | January 31, 2011 7:18 PM | Report abuse

"krazen1211--majorities are always temporary. If the economy heals by 2012, Dems should gain seats."


Not really. It's never historically happened, certainly not after a redistricting year.

Posted by: krazen1211 | January 31, 2011 7:20 PM | Report abuse

"Think something like opening Medicare to all Americans over age 45"

How would this work? I assume 45-64 isn't a very good risk pool and the buy in would be extremely expensive.

Posted by: SteveCA1 | January 31, 2011 7:26 PM | Report abuse

Hello folks, it takes another year or more likely 2 for the Supreme Court to rule on health care. There is a good chance the Dems take back the House in 2012 because it will be the 2008 electorate with 4 more years of young people and 4 less years of the elderly, plus it won't take long for the public to reject the draconian cuts and craziness of the GOP House. Then in 2013 the expanded Medicare bill gets introduced and passed by reconciliation.

Be careful what you wish for, GOPers.

Posted by: Mimikatz | January 31, 2011 7:43 PM | Report abuse

"Hello folks, it takes another year or more likely 2 for the Supreme Court to rule on health care. There is a good chance the Dems take back the House in 2012 because it will be the 2008 electorate with 4 more years of young people and 4 less years of the elderly, plus it won't take long for the public to reject the draconian cuts and craziness of the GOP House."

Yawn. Another leftist deeply ignorant of history.

That theory didn't work for Clinton in 1996, Reagan in 1984, or Nixon in 1972.

Posted by: krazen1211 | January 31, 2011 7:47 PM | Report abuse

And yet, those same Founding Fathers who envisioned such limited powers passed a law in 1798 requiring ship captains to dock sailors wages to pay for hospitals for sick and injured seamen.

http://blogs.forbes.com/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health-insurance-in-1798/

Posted by: curmudgeonlytroll | January 31, 2011 8:24 PM | Report abuse

I'd gladly trade the risk of a new "Medicare for all" policy for the removal of the specter of Congress having carte blanche to regulate any "economic decision" I make.

If Congress is forced to actually pay the political heat and fund new laws properly with taxes, then so be it. If you get the votes, fine. But then, so can taxes and programs be repealed as well.

Legal precedent on the other hand, lasts much much longer than any one policy or tax.

Posted by: vimrich | January 31, 2011 8:26 PM | Report abuse

The ACA was passed nearly a year ago, and already it has been repealed with MORE VOTES in the House than the number IT PASSED BY.

Mr. Klein, both the courts AND the people hate this law. It needs to be repealed. Do we have to wait another two years? I guess we do.

Posted by: EowynR | January 31, 2011 8:41 PM | Report abuse

Medicare is going broke and the program is a huge driver of our deficit. It's not going to be expanded. If anything, I'd expect the eligibility age to increase with time, much as it has for SS.

"And there's no way we see a Speaker Pelosi again because Republicans are going to Gerrymander the county."..Not going to happen. California now has an independent panel of citizens with responsibility for redrawing Congressional districts. Much as I'd like to see Ms Pelosi go, the process for redrawing her district will be much more impartial going forward than it has been historically.

Posted by: Beagle1 | January 31, 2011 8:49 PM | Report abuse

Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process -- as that would sidestep both legal attacks and the supermajority requirement.

______________


Ezra you should be FIRED for that statement


It is blantantly untrue

ANY reconciliation needs the approval of the HOUSE.


You are silly, and ridiculous - and if I was in charge of your newsroom you would be FIRED for being so stupid.

OH by the way, there are some Constitutional Amendments approaching 100 years old - does that mean they are no good anymore????

How about income taxes???


We don't have to pay after 100 years, right???


That would surely DEFUND Obama and the liberals.


.

Posted by: RainForestRising | January 31, 2011 10:29 PM | Report abuse

This precedent if successful opens the door for we the people to challenge all required insurances, starting out with the requirement by states for Car insurance. After that we can look into all other insurances that are required and use the precedent established to get them revoked based upon the ruling in Florida.

Let the courts prepare for the onslaught.

Posted by: stanrarchie | February 1, 2011 12:04 AM | Report abuse

Ok I am so tired of the liberal crying that the government can make you buy insurance because the states make you buy car insurance. The STATES DONT MAKE YOU BUY CAR INSURANCE. You have to have car insurance ONLY IF YOU DRIVE. If you dont own a car and dont drive you dont have to buy car insurance. Your living in a state doesnt mandate you have car insurance and there is no penalty (READ FEE OR EXTRA TAX) for not having it.

Posted by: bjeagle784 | February 1, 2011 1:08 AM | Report abuse

Ezra, I think you're being too optimistic. If the Repub judges gut the law, we're back to where we were, with virtually no chance of any type of health care reform. My son who is a type 1 diabetic will never be able to get an individual policy, and health care costs will continue to drag down our country. It's very depressing.

Posted by: mmpd | February 1, 2011 2:01 AM | Report abuse

RainForestRising is right. The 100-year statute of limitations is coming up on the 16th Amendment authorizing an income tax, which had been forbidden by the Constitution. Ninety-eight years and counting until Ezra says the law becomes totally useless at the century mark. John Roberts must have a direct line to li'l Ezra to get positive JournoList agitprop from burning John's nose hairs and singeing his locks. Oh yeah, direct election of Senators was approved in 1913, so we can go back to State Legislatures picking them at the 100-year mark in 2013---the GOP already controls over 30 legislatures in both houses, so I can't wait to get a 60-plus Republican senate back.

And kudos to Ezra for instituting the 100-year rule. Now we can get all that dead wood out of the way, including abolishing slavery. Only this time, we don't discriiminate against blacks---that would be racist...! Albino pygmies maybe, or perhaps light-skinned Latina females...

Posted by: djman1141 | February 1, 2011 2:17 AM | Report abuse

The best part about using reconciliation is that even if the law is only theoretically in effect for 5 years (to game the budget-balance rule), it will kill the entire private insurance market, leaving no option but to renew the legislation. Of course, it still has to pass the House.

Posted by: albamus | February 1, 2011 9:47 AM | Report abuse

I hope that Ezra is right, but I am not sure that a veto- and/or filibuster-proof majority of our legislators are sufficiently committed to universal coverage that they would go the single payer route. If we get single payer, it will only be years after health reform has been repealed, healthcare costs have really gone through the roof, and many people are uninsured.

Posted by: weiwentg | February 1, 2011 9:48 AM | Report abuse

From the day the ACA was passed, I have wondered why the bill included a federal mandate to purchase health insurance. The Congress could have used the time-honored and constitutionally-guaranteed method of requiring states to pass mandates in order to take part in the advantages of the law, with a stick to induce cooperation. For example, the law could have included a provision forbidding non-compliant states from receiving any federal medical funds other than Medicare and Medicaid. This provision would effectively kill medical research and teaching hospitals in these states, motivating powerful state interests to lobby for the mandate. States would have to replace federal spending on their own, or see their medical researchers move to other states. This method is how the federal government forced states to adopt 55-mph limits, by threatening federal highway funds. It removes the Constitutional issue. I remain dumbstruck that the law was written with such an obvious flaw in it. Can anyone explain this?

Posted by: AWLinNC | February 1, 2011 11:19 AM | Report abuse

Can someone answer a few questions for me. Who pays the medical bills for the uninsured right now (meaning before ObamaCare was passed)? Am I right in understanding that their costs are passed on to the paying customer?

Posted by: Mace68 | February 1, 2011 1:08 PM | Report abuse

Dear Ezra: I know the Constitution is really old and hard for you to understand even though you got that hard to get journalism degree, but remember what really smart Chuck Schumer said about the three branches of govt:House,Senate and President.He's wrong , about what the three branches are but not that the House and Senate will have something to do with legislating..And they will never agree to single payer so your threat is preposterous.

Posted by: clarice2 | February 1, 2011 3:03 PM | Report abuse

"Can someone answer a few questions for me. Who pays the medical bills for the uninsured right now (meaning before ObamaCare was passed)? Am I right in understanding that their costs are passed on to the paying customer?
Posted by: Mace68"

Yes, but not entirely. A Kaiser health study showed that the uninsured simply purchase less health care, and that of which they do purchase is paid 35% out of pocket and another 34% by existing government programs. Other sources, which regretfully aren't broken down, include a number of different sources which, yes, includes costs assumed by the medical providers and facilities that are passed on to the market.

However, cost shifting to the private market is hardly unprecedented. The private market pays a greater cost already due to the low payment rates, delays and administrative costs of government health programs.

It seems odd to suggest more of the latter can solve the former without somehow making the private market unsustainable or imposing additional uncompensated responsibilities upon providers and facilities.

Posted by: cprferry | February 1, 2011 3:38 PM | Report abuse

Bjeagle784 is exactly right and exactly wrong. It is correct that only those who own/drive cars are required to purchase automobile insurance. Those who “opt out” of automobile ownership/use are not subject to that requirement. However, this is not an indictment of the analogy to health insurance, instead it is precisely why the analogy holds true. It is neither particularly common nor especially advisable to “opt out” of clinical medical care (even Christian Scientist doctrine doesn’t actually forbid the employment of medical services). Moreover, as mace68 points out (or asks, actually), the costs incurred by those who have “opted” not to purchase health insurance, but who (shockingly) still find that they require medical care to…well…live, are paid by all of us. Even if cprferry is correct (and I see no reason to doubt the statistic s/he cited) that 35% of that cost is borne by the individual without insurance, it is hard to imagine a judicial world in which it is not woefully obvious that the decision not to purchase health insurance has a substantial impact on the interstate commerce organized around health and its care. Market cost-shifting aside, the legal question is whether or not the Congress may regulate economic “inactivity,” that is, the decision not to purchase a particular good or service.

This, as it turns out, is the crucial distinction around which the dominant challenge to the individual mandate of the ACA has taken shape. Conservative jurists, politicians, and talking heads of all shapes and sizes bemoan the unprecedented nature of extending the Commerce Clause to include the regulation of economic inactivity (so-called). Accepting for a moment the specious proposition that the (presumably rational, or at least economically overdetermined) decision not to purchase health insurance is somehow economic behavior of the inactive sort, the ACA’s individual mandate still falls well within Supreme Court precedent allowing the regulation of decisions not to purchase a particular good or service. Ben Adler over at Newsweek broke this down on December 15:

"In 1942 the court held in Wickard v. Filburn—the most relevant precedent for this case—that a farmer growing wheat for his own chickens, above a maximum of growth allowed per acre at the time, was subject to federal regulation under the commerce clause because the resulting extent to which a farmer does not buy wheat to feed his chickens on the market affects the national market price of wheat."

Opponents of the ACA, such as GW law professor Jonathan Turley (cited by Adler), among others, argue that "[t]his goes a step further than Wickard because it’s the omission of action that’s being defined as the interstate act," but that reasoning is flawed, as it was the decidedly intra-state decision to grow one's own wheat to feed one's own chickens that can be regulated because it logically produces one's inactivity in the inter-state commerce in wheat.

Posted by: fougamben | February 1, 2011 5:14 PM | Report abuse

Turley, and others, normally savvy splitters of the judicial hair, have this relationship backwards. Economic inactivity, or whatever one would like to call it (perhaps we can just settle on the ideologically-driven neologism “Obamacare”) is clearly within the purview of Commerce Clause regulation. After all, it is the consequences of the farmer’s inactivity in the inter-state wheat market that provides the justification for regulating that farmer’s cultivation of wheat. But the point, the imaginary interlocutor retorts, is that it is the economic activity of wheat-growing, and not the spectre of non-participation in the inter-state wheat markets, that is the direct target of federal regulation in Wickard. This is true. However, that cleanly inverts the holding of the decision in relation to the ACA controversy. Inactivity in relation to the inter-state market is the factor that justifies federal regulation under the Commerce Clause. Even if one contorts this precedent to support the claim that insurance inactivity somehow immunizes an individual from the consequences of that economic decision, the implications of this non-participation for inter-state medical commerce places the active decision-making of the inactive decision-maker (as if there were such a thing as an “inactive decision-maker”) well within the scope of regulations Necessary and Proper to the legitimate regulation of inter-state medical commerce. In other words, under Wicker, the rationale that allegedly shields the non-participating consumer from the reach of the Commerce Clause in the first instance certainly does not authorize that individual to evade those regulations Necessary and Proper to the implementation of the ACA, namely the individual mandate, in the last instance

BTW – This is the URL for the Adler article cited above: http://www.newsweek.com/2010/12/15/will-the-supreme-court-overturn-health-care-reform.html?obref=obnetwork

Posted by: fougamben | February 1, 2011 5:15 PM | Report abuse

Far be it from me to tell you how to write, but I'd like to point out A) your first sentence is kind of run-on, and B) perhaps not unconnected to that, it's a bit thick, and needs unpacking.

"conservative circles" hold "that the Constitution's vision of "a central government with limited power" ... permits the government to" wipe "out the private insurance industry"?

I'm lost.

Posted by: Charlieford | February 1, 2011 10:34 PM | Report abuse

Mr. Klein, you may not have noticed but the Democrats no longer have the vote to pass an expansion of Medicare, and won't have the opportunity to do so again for many year.

They blew their wad on ObamaCare, and if it is struck down, it will be another generational defeat for the dreams of Democrats.

Posted by: tjk1 | February 2, 2011 2:51 AM | Report abuse

Thanks cprferry, I appreciate your answer. Very interesting data. Not to sound draconian or unfeeling, but why don't medical providers simply refuse health care to those who can't afford it? Is there a law that requires them to provide the service even when payment is not forthcoming? I know a lot of folks are going to label me a nazi for even thinking this but I am hard pressed to see what the public benefit is. Why not just turn these folks away? And to go even farther, why not do away with all government subsidized health care programs. Would not doing so lower overall health care costs (since the demand for care would decrease) and thus make health care more affordable for everyone?

Posted by: Mace68 | February 2, 2011 12:45 PM | Report abuse

At some point the American people who have been battered, abused and used by GOP/Corporate/right-wing/neo-con control,(except for FOX viewers, who just don't get it) might revolt as they have in Egypt (etc.)..desperate people perform desperate acts...........

Posted by: susannelsen | February 2, 2011 5:42 PM | Report abuse

At some point the American people who have been battered, abused and used by GOP/Corporate/right-wing/neo-con control,(except for FOX viewers, who just don't get it) might revolt as they have in Egypt (etc.)..desperate people perform desperate acts...........

Posted by: susannelsen | February 2, 2011 5:42 PM | Report abuse

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