It’s not over, ‘til it’s over

While that Yogism applies uniquely to baseball, it has it’s applications in health policy as I’ll explain.  Unless you‘ve been stranded on a desert island for the past 6 months, you know that the Supreme Court has spoken on the constitutionality of ObamaCare.  In a creative rewriting of the act, Justice Roberts cast the deciding vote in a 5-4 decision that the Affordable Care Act is constitutional.  It’s not because the forced purchase of health insurance is justifiable under the Commerce Clause.  It’s because the penalty for not complying with the regulation is a tax and Congress has the constitutional authority to levy taxes. 

It’s also clear that the Republican effort to “repeal and replace” the legislation is all but dead in the water since Mitt Romney failed miserably to provide the electorate with a good reason to unseat President Obama and give him the job.  So we just need to accept the fact that ObamaCare is the “law of the land” and get about the business of successfully implementing its provisions. 

Oh, but wait.  What did Yogi say?  It turns out that the Supreme Court did more than pass on the constitutionality of the law, they, in effect, took a flawed piece of legislation and made it functionally unworkable.  And in so doing, have opened the way for new constitutional challenges. 

An important element of the law expected to expand coverage to millions of low-income Americans is the expansion of Medicaid to cover families with incomes below 138% of the federal poverty level (or about $31,800 for a family of four).  The way the law was written states that failed to comply would lose all federal Medicaid funding (amounting to 25% of average state budget).  But the Court didn’t interpret the law that way.  The ruling stated that Congress could not force states to comply with the Medicaid expansion by threatening to defund the existing program.  With the new flexibility 7 states have already announced that they will not expand eligibility.  An equal number will likely follow, creating a serious constitutional problem. 

The Constitution requires that taxes be “uniform throughout the United States” (Article I, Section 8).  This provision keeps states from forming alliances to shift the tax burden to other states.  The result of the Court’s rewriting of the new law is citizens with incomes above the federal poverty level, but eligible for expanded Medicaid are taxed differently depending on where they live.  In expansion states they simply comply with the individual coverage mandate by signing up for Medicaid.  The identical citizen living in a non-expansion state cannot. 

By rewriting the law turning the mandate into a tax, the Court has opened up a challenge to the law on based on the fact that the tax is not uniformly applied across states.  The challenge will not come until someone is actually required to pay the tax.  So for now we wait, until April 16, 2014, that is.

ObamaCare was poorly written from the beginning.  A patchwork quilt constructed from a wish list of liberal policies waiting for a Democrat super-majority in the Congress.  That super-majority only lasted about 5 months from the seating of Al Franken (D, MN) in the summer of 2009 to the to the special election of Scott Brown (R, MA) in January of 2010.  But that was enough time for Democrats to pass this sweeping domestic legislation (without a single Republican voting with the majority).  And we will live with the consequences of that moment in history for quite some time. 

The opinions expressed in this blog post are mine alone, and do not reflect the opinions of Baylor University.   Baylor is not responsible for the accuracy of any of the information provided in this post.

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