Obamacare Survives: Reax

Jun 28 2012 @ 7:40pm

The president's response:

Jared Bernstein wraps his head around the Medicaid ruling:

[B]ecause the law was written assuming that the uninsured poor would be covered by Medicaid, subsidies to purchase health insurance in the exchanges don’t kick in until higher income levels. The poor won’t have to pay the tax penalty formerly known as the mandate because of a hardship exemption in the law, but neither will they get the subsidy until their incomes go up enough. It’s a very weird reversal of the usual means-test for government benefits. Typically, as your income rises you become ineligible for benefits. Here, you become eligible.

Austin Frakt wonders how this will play out:

I agree with Bernstein and Aaron and Kevin Drum (all posts worth reading) that it is unlikely many states will actually refuse the money that comes with Medicaid expansion due to the pressure they’re likely to receive from providers. But it is possible some may try, and in particular they may do so to extract concessions from regulators. “Hey, let that waiver through and we’re on board.” It’d be an ugly game, threatening the affordability of coverage of low-income individuals, but that doesn’t mean some states won’t play it.

Judy Soloman thinks the Medicaid funds are a very good deal for the states. Pelosi unsurprisingly agrees:

Pelosi argued that it will be extremely difficult for conservative states to opt out once their residents see how other states are benefitting from the Medicaid expansion. “Once this bill is rolling and people experience benefits of it, it’s very hard for a state to say [no],” she said. States will also receive full federal funding for the first three years of the expansion before they have to take up more the expense, which Pelosi described as a major incentive to get them to participate.

Suderman, on the other hand, thinks the Medicaid ruling could allow states to effectively opt-out of Obamacare:

Overall, this dramatically expands the choices for state governments. Already they had the option to decline to set up health insurance exchanges as called for the by the law. In theory, the federal government would then step in to create an exchange, but it’s not at all clear that the federal government has the necessary funding or authority to get funding. If a state opts out of both exchange creation and the law’s Medicaid expansion, it will be able to avoid many of the law’s costs and consequences, and position itself largely beyond the reach of the law. Which may leave us with a fractured, quasi-federalist health care overhaul in which some states have exchanges and a beefed up, federally managed Medicaid program and other states avoid participation almost entirely.

Avik Roy argues that the Medicaid decision could explode the deficit:

[N]ow that states can opt out of the law’s Medicaid expansion, states that currently cover people above 100 percent of FPL with Medicaid now have a significant financial incentive to shrink Medicaid eligibility down to 100 percent of FPL, and let the federal government (read: taxpayers in other states) pay for the rest. This, again, will lead to substantially higher costs for the federal government, because exchange subsidies are much more generous than Medicaid is.

Douthat believes that Roberts' decision was political:

[T]o my admittedly non-expert eyes, Roberts’s attempt at a “reasonable construction” looks more like a re-construction, and his ruling reads as a decision made much, much more out of deference to the legislative and executive branches than out of a straightforward application of the Chief Justice’s views of the Constitution to the plain language of the statute.

He goes on to argue that "such deference is a defensible way for a restraint-minded Supreme Court Justice to approach his role in our republic." Will Wilkinson is mostly on the same page:

Mr Roberts genuinely thinks continuity, stability, public approval, and a posture of deference to the legislature are crucial to the healthy functioning of the judicial branch. The members of the court have more room to move, more freedom to interpret the constitution by their independent lights, when they are not the subject of an angry, divisive public debate that loudly calls into question the independence and legitimacy of their institution. Mr Roberts observed the livid reaction to Citizens United, as well as the liberal freak-out over the mere possibility of a ruling striking down Obamacare, and determined that prudent custodianship of the court called for a light, conciliatory touch. Indeed, my hunch (and none shall doubt my amazing intuition!) is that Mr Roberts may well have chosen to join his conservative colleagues had the court not lost so much public goodwill following the Citizens United decision

Fallows, while defending his coup remark, makes related points:

In making a majority to sustain the mandate / "tax," the Chief Justice gave his first substantial demonstration of loyalty-to-institution outweighing loyalty-to-cause. I am willing to believe that this has been his real intention all along; that he was increasingly concerned that his legacy might be a Court whose legitimacy ebbed as its partisan predictability rose; and that he finally found the way to express his true "institutionalist" nature. To gauge the importance of this move by the Chief Justice, consider the political and legal world we would know today if he had joined the other side to make a 5-4 majority for totally overthrowing the law, perhaps accompanied by a hyperpoliticized Scalia concurrence. I stand by my previous (much objected-to) contention that this would have aggravated a genuine legitimacy crisis for the Supreme Court.

And Randy Barnett, who spearheaded the argument against the mandate, claims partial victory: 

From then until today, most law professors have taught that the power of Congress to regulate the "national economy" is limited only by Congressional restraint, which means that the power is unlimited. … Today, the Supreme Court definitively rejected this position by holding that mandating economic activity is not the same as regulating it, and that some means Congress chooses to regulate commerce can be improper. Today, the Court reaffirmed the traditional view that there must be a judicially-enforceable limit on the powers of Congress. From now on, Congress will need to take the limits of its own power seriously, because it can be assured that the Court will be looking over its shoulder.

The Dish's live-blog of the ruling here.