What to Listen for in the Health Care Arguments

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Mar. 25, 2012



> > Read the rest of our Monday stories or see the complete schedule of coverage in WGBH News Focus: Health Care on Trial

BOSTON — This week, WGBH News is broadcasting the entire Supreme Court oral arguments for the case against President Barack Obama's Affordable Care Act. Law professor Renée Landers will be commenting on the arguments on-air. She told WGBH News' Bob Seay that all ears will be on justices Anthony Kennedy and Antonin Scalia. One in particular could be put in an unusual position: that of supporting the president's agenda. 

Though he's known as a conservative, Scalia wrote a concurring opinion that authorized the exercise of federal power in a medical marijuana case. In that situation, he thought "the intrusion in individual economic activity was appropriate. There’s language in that opinion that’s very hard for him to walk away from because I think it's directly applicable to this case," Landers said. "These federalism issues sometimes take people out of their normal ideological leanings."

Along with determining the constitutionality of the "individual mandate" to purchase health insurance, the court has to decide whether Congress has the power to dictate a significant expansion in Medicaid eligibility that is also part of the bill.

And it's even possible, Landers said, that the court will decide it's too soon to decide "because the law hasn't fully gone into effect," she said. "The court wouldn't be saying necessarily that the statute in all respects is constitutional, but it will be saying we’re going to postpone the decision until some future time."

Read the complete conversation:

LANDERS: I think that there are probably four really strong votes to uphold the Affordable Care Act: the four liberal justices who were appointed by Democratic presidents. And then the other five members of the court, among them there are two or three who I think are likely to vote that at least parts of the law are unconstitutional because of their previous votes in other cases. And then there are two or three who I think are really on the fence. I think that Justice [Anthony] Kennedy and Justice [Antonin] Scalia, we’ll be working and listening for hints about how they might be leaning in this particular case.
 
SEAY: Interesting with Justice Scalia, I thought he’d be more conservative…
 
LANDERS: These federalism issues sometimes take people out of their normal ideological leanings, and Justice Scalia a few years ago wrote a concurring opinion in the medical marijuana case called González v. Raich, where he seemed to give this ringing endorsement of the exercise of federal power to give effect to a big regulatory scheme like regulating controlled substances, dangerous drugs and so on. He thought therefore the intrusion in individual economic activity was appropriate. There’s language in that opinion that’s very hard for him to walk away from because I think it's directly applicable to this case.
 
SEAY: So there’s plenty of suspense in this case! What about the timing of this consideration? Considering it is a presidential election year, you like to think that the Supreme Court doesn't want to insert itself politically into what's going on … but certainly it will by virtue of its decision.
 
LANDERS: It certainly will. The only way that it won't have that effect is if the court were to decide that it's premature to decide any of the substantive issues about the constitutionality of individual mandate or the constitutionality of the Medicaid expansion at this time because the law hasn't fully gone into effect. The court wouldn't be saying necessarily that the statute in all respects is constitutional, but it will be saying we’re going to postpone the decision until some future time.
 
SEAY: Now, the politics of this presidential campaign, especially within the Republican field, have placed the Massachusetts health care plan into the national spotlight. How, in fact, did the Massachusetts health care mandate inform what was included in the federal law?
 
LANDERS: The structure of the individual mandate with the tax penalty in the federal law is similar; it’s not identical to, but very similar to what we've done in Massachusetts.
 
SEAY: Well, was there ever a question about the constitutionality of the Massachusetts law here in the Commonwealth?
 
LANDERS: Well, you know, for different reasons. So this case that the court is hearing is about the extent of the federal government's power to regulate in this area. The states traditionally have regulated insurance, with one exception. There is a federal statute called ERISA, the Employee Retirement Income Security Act, which takes some insurance regulation out of the power of the states to regulate. And if there was a question about the legality of the Massachusetts law, it would have to do with that conflict with that federal statute. But so far that Massachusetts law’s not been challenged on that basis.
 
SEAY: To simplify what the issues are here, I guess the most common controversy that people have heard about is this individual mandate. That is the central issue?
 
LANDERS: I would say that that's the most significant issue in this case. People do still have a choice about whether to purchase insurance. Unfortunately, there’s an incentive not to make that choice because people who make that choice will pay a tax penalty if they have the income to afford available insurance products in their state.
 
SEAY: In the Affordable Care Act, there are exemptions for people who can't afford it. Does that kind of mitigate the government mandate issue?
 
LANDERS: Well, it does, and I think that's one of the things that the Massachusetts law recognized. You can’t require people to buy a product that there's not a reasonable expectation that they would be able to afford it, which is why the law has, the federal law and Massachusetts law, also have subsidies for lower-income people to enable them to purchase available insurance products on the market. Even with those subsidies there is recognition that some people may not be able to afford the insurance product because of their personal financial circumstances, and there are exemptions in the law for people who can make that showing.
 
SEAY: Now, we mentioned the individual mandate. What are the other issues that are going to be debated in this case?
 
LANDERS: One other issue is this question of does the court have jurisdiction? Is it too soon to review the case?
 
Second, the other major change that the law institutes is an expansion of the Medicaid program, which is the federal/state program that provides health insurance essentially to low-income populations. In the past, in order to be eligible for Medicaid, the person had to be an adult under the age of 65, essentially with dependent children. There were some other categories of people who could be covered but that was essentially the population covered. It cut a lot of people out, a lot of low-income people out, of the opportunity to have healthcare coverage for Medicaid. The Affordable Care Act now requires that all Medicaid programs cover all people under the age of 65 who don't have some other option and whose incomes are at or below 133 percent essentially of the poverty level. And so this is totally changing that.
 
So now an adult male who is 45 years old who works in a minimum-wage job, who does not earn income above the other level specified in the statute, that person will be eligible for Medicaid now and before that person would not have been. So it's a big expansion, and the states are objecting to this expansion — that they will have to reconfigure eligibility standards, all kinds of things about their Medicaid programs in order to continue to participate. But in fact, on this Medicaid expansion, the federal government until 2020 is going to pay for 100 percent or 90 percent of the cost of the expansion of covering that new population. So I think the state argument that it's intrusive is a very, very weak one.
 
And then the final issue in the case is if the court were to determine that the individual mandate, for example, is unconstitutional, could the rest of the statute stand even without those parts of the court has declared unconstitutional?



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