ACA, Meet The Supremes

I haven't written much about politics, and even less on healthcare in a long while, and I wouldn't necessarily see a reason to start now, even with the Supreme Court arguments this week... but I think there's a few points that bear repeating. 

Which is to say: I feel like much of this "health care debate" is old news and the point's been made, but let's try again, just for giggles.

First, I tend to think the Supreme Court case is premature, but at this point, it was unavoidable. Once three Appellate Divisions had ruled, 2-1 in favor of it, there was pretty much no way for the Supreme Court not to take up this case. That's why the Supreme Court exists, to resolve disputes among the different Circuits. Still, I think the Court will regret taking this up too soon and in an election year, when the decision can't help but be all politics, and little in the way of good law.

Second, even though I think the case should have been left aside, I think the arguments that came out this week were fascinating reminders of why we're having this dispute. As someone with a lot of understanding about the issues of healthcare and health insurance in America, I still tend to forget how few people can see the bigger picture, or have thought deeply about the system of insurance and payments that we have. That, I think, has been a big driver of the "mandate is unconstitutional" side, and a lot of their naivete was on display in the Court recordings. Paul Clement's attempts, for instance, to separate health insurance as a market from healthcare services was almost laughable (and for everyone so sure of the outcomes... it was also telling that the most skeptical voice on this separation was John Roberts). Why people buy health insurance, how people use health insurance, what healthcare costs for people who don't have it, what kind of care people without health insurance can get... these are basic questions for understanding the health care problems we have, and the displays of lack of comprehension of these topics within the Supreme Court debate was deeply revealing... and deeply depressing.

Third, I think it was pretty clear that the mandate is constitutional, if unpopular. Healthcare is, virtually by definition, interstate commerce. Even separated from health service, health insurance is interstate commerce (all that takes is one company that operates in more tha one state, buying health insurance for its workers). Devising a system where people show proof of insurance or pay a penalty is a "necessary and proper" function of the tax code. This isn't hard. There might be a narrow argument that the government can't "compel" economic activity... but compulsion seems like a vague, hard to define standard (if passports require a photo... why can the government compel you to get one?). 

Fourth, the mandate isn't nearly what its opponents try to make it out to be. No one is "forced" to do anything, or buy anything, under the regulation. It says, basically, either you have health insurance or you pay a fee. The fee is comparatively small (indeed, it may be small enough that it, too, creates a perverse incentive to not buy insurance until one is absolutely desperate). Most people already have health insurance - again, more than 85% of the population, most workers through their employers, and the elderly through Medicare, just for starters. Those percentages have probably shifted somewhat since the economic downturn, but the vast majority of Americans are, still, insured. That makes the fee a dead issue for almost everyone, and the point of the healthcare legislation is that, with the mandate and other incentives, business and insurers will work harder to make sure more workers are insured, and for others, there will be increased access to programs like Medicaid, or the new health insurance exchanges.

This is not a great, or an elegant, or a nearly perfect solution to our healthcare problems; the solutions do nothing about health care cost, and they codify our employment based system of insurance in ways that probably make things worse. But that brings us back to the yearlong debate about the ACA tyo begin with - yes, there are other solutions... but most of them require enormous leaps in our healthcare systems that we're just not prepared to make as a nation. Broadening the availability of insurance is a reasonable, workable workaround. And doing it probably buys some time to craft other solutions without leaving millions with few healthcare options.

Finally, to go back to the beginning, the real mistake here may be the first one the Court made: as they debated on the first day... this case probably should be punted until the penalty fee actually goes into effect (this is the argument over the "Anti-Injunction Act" which says that you can't sue the government over a tax the government hasn't yet collected). Until the government has to start collecting the fee, we won't know how many people have to pay it. And the better case against the fee is actually probably by people who have no way to get insurance... a prospect which is much more likely to be the case if the Federal government and the States can't work out differences over Medicaid, if the health exchanges don't come together successfully, or if eocnomic conditions get worse. Even Massachusetts had to reexamine the timing and structure of their mandate fee, and the avilability of low cost insurance, as it became clear that the fee made more sense for many uninsured people when affordable insurance was unavailable. That may well be a signpost for a similar outcome, on a much larger scale, when the penalty fee goes into effect.

I'm not trying to play Mary Sunshine here - of course the Sipreme Court's conservative majority could overturn the whole thing; proof that this is far more a political choice than anything about the laws involved, more a way to score points for conservatism generally. But conservatives have, really, still no answers for the various problems our healthcare systems create, only a "fend for yourselves" approach that's disastrous not just for some, but for most of us. The Affordable Care Act is unpopular... but more to the point, it is still not really understood. And that may be reason enough to do away with it. But it's not a good reason... just like this case, really, is not a good case.

Comments

[jinb]

random thoughts on

3) Buying a passport is a choice, and I am not penalized financially for not having one (which I don't, sadly)

2) wrong wrong wrong...health care does not equal health insurance...rinse lather repeat...they are different nouns; and the latter only exists because the government refuses to do what every other civilized western nation does: treat health care as a right...only here would health care not be a right but health insurance be a must...that's what's called Bizarro World

4) yes those numbers have shifted with much fewer employers covering their employees, and further your argument fails to take into consideration those affected who put off leaving a job, otherwise not suited to them, for fear of "the fee." Hardly a "dead issue" when one is considering a career switch until the government decides to guarantee the wage to pay for it.

and on Finally), though I think you are right that the Supremes will uphold ACA, I do find your argument about punting until the "tax is collected" interesting in that calling the penalty a "tax" seemed to be in question.

It's a bit laughable to me that you would find a ruling striking down ACA "political" but one upholding it..."not?"

You really do seem to be conflating health insurance with health care...one is necessary, the other an unnecessary evil.

[weboy]

3) You're penalized by not being allowed to travel freely between countries, except by paying for a passport. And a photo.

Beyond that, your "random" thoughts do strike me as, yes, random... and thus more nitpicking than coherent (the "call it a penalty or a tax" debate is especially ludicrous; call it your Aunt Sally, you still have the basics of health insurance or pay a fee). I'm not trying to conflate health care and health insurance, only to point out, however the conservative justices and the conservative lawyers try to separate the two, you can't, really, when talking about our current systems and how health care is paid for (or not paid for), in most cases. The point of the ACA is to try and "work around" the question of health care access by making more, cheaper, health insurance available so more people can get access to care. I don't think it's the greatest idea, or the most workable... but I think if the Supreme Court thinks that bad, wait until they see Single Payer proposals. I think any decision from this Court will be "political", but I think upholding it would actually take some of the "politics" out of the debate, since we then, at least, have some solid ground from where to begin a fresh debate. Eliminating all of the ACA (which I still think is unlikely) returns us to a place that's far less clearly defined, and back at square one, or worse, in terms of evaluating what health care problems we have and how to address them. The debate we had over ACA does not improve by having it again.

I can't leave aside, either, your disputing my point about who has insurance. Yes, higher unemployment has surely affected how many people have insurance, and people who are under employed and part time employed are affected as well. Smaller employers may not be providing insurance (though many try). Even with all that, you ignore my main point: all of that factored in, the vast majority of Americans have some sort of health insurance. And that, still, is why this anger over a penalty/fee/tax is for most people - you included - misplaced, when you won't even have to pay it. Until the fee/penalty/tax goes into effect, we won't really know how this plays out, and, as I said, if a substantial number of people can't get insurance - because the exchanges aren't up and running, or because Medicaid can't be fully expanded - there will be enormous pressure to put off collecting the fee, or to restructure it somehow. In other words, the penalty/fee/tax itself is a mechanism that will continue to put pressure on Congress to do better on health care. None of that makes me a fan or defender of the ACA... but I think we're kind of stuck with letting the ACA take effect and seeing where we are then, rather than hoping that the Supreme Court puts us back beyond Square One, having to start over again from scratch. Single Payer will not be the next result if that's what happens.

[jinb]

They were random only in the order in which they appeared LOL, but nice try at distraction with that nitpick.

What "fresh debate" are we going to have if the Supreme Court upholds ACA? From all accounts I've heard this was the "last chance at reforming health care for a generation."

The rest of your response lacks sufficient substance for reply.

[jinb]

Except that if you think the passport situation is analogous, you really are missing the point. I can choose NOT to travel between countries.

ACA mandates my purchase of a product for merely existing in America. What other industry enjoys that kind of favored status?

I'll save you some more bad guesses (along with passport): Driver's License (don't have to drive), Shelter (desirable but not mandated)

On the other hand, we all eventually die and there are costs related that continue to rise...where's the mandate to buy funeral insurance?