Supreme Court Update

On March 26th, 27th, and 28th the United States Supreme Court heard arguments on the most important case in decades – the challenge by 26 states, including Michigan, to the Affordable care Act – better known as “Obamacare.” MichUHCAN participated by submitting two amicus briefs on two of the four issues before the court. We did not want the court to think that Michiganders generally accepted the opinion of our Governor and Attorney General – both of whom we consider to be wrong on this issue.

We argued that if the Court finds the “mandate” unconstitutional the rest of Obamacare should not be stricken. Our second brief was about Medicaid and we argued that the Medicaid expansion was constitutional.

The four issues the court heard arguments about were;

  1. Whether the challenge to Obamacare is premature? The Attorneys General and the United States Government actually agreed on this issue telling the court they wanted the Supreme Court to decide the issues now and not to delay a decision. The court, in an unusual move, appointed an independent attorney to brief and argue that it is too early to decide because neither party would have argued that position.
  2. Whether Congress has the power to enact the ‘mandate’? This is a tricky issue because the opposition in the ‘street’ to Obamacare is really based on a selfish interpretation of ‘liberty.’ They don’t really care that much about violations of Congressional power under the Commerce Clause. They complain that they do not want to be made to do the responsible thing – buy health insurance. This is the issue that is most divisive.
  3. If the ‘mandate’ is not Constitutional, what happens to the rest of Obamacare? MichUHCAN argued that nothing should happen to the rest of the Act. It should all be upheld and implemented. This is the same position the Court of Appeals took on this issue. The Obama administration, however, has been arguing that if the ‘mandate’ fails two insurance protections also fail – the ban against discriminating against those with pre-existing conditions and ‘community rating.’ Community Rating means deciding premiums on the basis of a large group in order to hold down everyone’s cost of coverage. MichUHCAN argued that we did not want insurance reform ‘thrown under the bus.’ We want the whole act to be implemented.
  4. Whether the Medicaid expansion is unconstitutionally coercive on state governments? The states argue that expanding Medicaid to 138% of the Federal Poverty Level is coercive because they have to accept this expansion in order to maintain any Medicaid program at all. The Court of nAppeals found this argument was factually wrong and that turning down the expansion would not mean the end of present Medicaid programs. Besides, the Federal government pays for 100% of the expansion, except for administrative costs which are minimal, until 2016 and 90% after that.

It is hard to see how the Medicaid expansion could be declared unconstitutionally coercive on the theory that if the federal government gives a state too much money that’s coercive. It is also hard to see how, if the mandate is declared unconstitutional, provisions already in affect, and others that do not depend on the mandate, should also be declared null. It may also be that the mandate will not be declared unconstitutional. We won’t know until June what the court decides.

At the hearings the reports from people on the scene were that supporters of Obamacare outnumbered opponents by a factor of 2 to 1 or more. That is a strong message to the court. We need to keep sending those messages through events, letters to the editor and activism.

From MichUHCAN Newsletter (May/June 2012)

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