The Nightmare Scenario: Supreme Court Guts Public Healthcare and Guarantees the Private Insurance Monopoly
March 30, 2012
At the U.S. Supreme Court this week, most of the attention has focused on whether the new federal healthcare reform can require every American to have a health plan. But as the hearings ended on Wednesday, another prospect came into view that could satisfy the conservative justices' obvious displeasure with the law and it is far more chilling—striking down the expansion of state-run Medicaid programs.
Should the conservatives remove the individual mandate from their bullseye and replace it with Medicaid, it would give right-wing ideologues and the private sector a historic political victory at the expense of a slice of society the GOP has no qualms about beating up: low-income people, particularly women; communities of color; and other underrepresented people.
“It probably would require the court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years,” wrote Lyle Denniston for ScotusBlog. “But the temptation was very much in evidence in the final round of the court’s hearings this week on the Affordable Care Act. If that happens, it probably would be done by a 5-4 vote.”
That scenario is more than troubling: wiping out the government’s largest expansion of healthcare for low-income people since the 1960s while enshrining a private sector monopoly on future healthcare delivery. If Denniston’s instincts are correct (he has been covering the court for 54 years) it would be an explosive invitation to political class warfare with implications stretching far beyond the public health sphere.
“We’re going to say to the federal government, the bigger the problem, the less your powers are,” Justice Sonia Sotomayor replied to the attorney arguing that the Medicaid expansion was coercive and should be voided. “Because once you [Congress] give that much money, you can’t structure the program the way you want.’
The Affordable Care Act essentially relies on using the money from requiring every American to have health coverage to bring people into either the government-provided health system or to offer more options via the private insurance market. The deal the White House struck was to expand both private and public healthcare coverage.
What would stop the conservative justices from chopping off the public sector leg of the Affordable Care Act, especially if that leg represented the historically largest expansion of the government’s social safety net since Medicaid was enacted as part of Lyndon Johnson’s "War on Poverty" in 1965?
Not very much, it appears. Legal scholars and bloggers have been pointing out that there are many precedents the court could cite if it wanted to preserve the coverage mandate, or ignore the claims of 26 red states that Congress was coercing them to expand Medicaid. The state-run health program now cares for 70 million low-income people, one in three children, and assists with long-term care, according to the Kaiser Family Foundation.
The Roberts court ignored a century of precedent in its 2010 Citizens United ruling when it allowed direct corporate contributions to independent political committees. The American Prospect’s Paul Waldman sees the conservative justices’ belligerence as an extension of how the Republicans in Congress and governors' mansions now behave, ignoring political norms and abusing their office and the courts for ideological goals.
What was undeniably clear from the three days of hearings was the court’s conservatives are angling to strike some blow against the healthcare law -- the question is where. And should the conservative justices target Medicaid expansion, it would be giving the anti-government right and corporate Republicans a tremendous victory at the expense of Americans the GOP does not hesitate to marginalize.
These are the same segments of society targeted by the GOP’s tough new voter ID laws. They don’t want poorer people, presumed to be Democrats, to vote. And the 26 red states challenging the Affordable Care Act don’t want them to get health plans, even if it lowers everybody else’s private insurance costs. In short, they don’t want government to work, even if most of the people to be covered by expanded Medicaid live in their states, according to Kaiser's experts.
There is no serious constitutional argument against Medicaid expansion, as the federal government under the reform law was paying 100 percent of the cost in 2014 and had planned to lower that share to 90 percent in 2020. However, there are political fights about how cash-strapped states should pay for their share of this reform—as well as running other public obligations such as public schools and courts—without raising revenues or new taxes.
Gutting the Medicaid expansion would be far more consequential than just pandering to the right’s "no-new-taxes" pantheon, however. If the court rules against the expansion, it opens the door to ruling against other federal oversight issues that will come before it, such as a pending case on whether the Justice Department can reject racially biased changes in voting rights laws under the Voting Rights Act of 1965.
This is exactly what right-wingers want. Conservatives like George Will have been pining for the Supreme Court to resurrect the so-called Lochner era from a century ago when it rolled back progressive workplace and labor laws—a trend that did not stop until the court, under fire, agreed to support Franklin Delano Roosevelt’s New Deal.
Striking the Medicaid expansion and leaving the coverage mandate would shrink the public health sector while enshrining a new private sector healthcare monopoly. It would move the country further away from anything resembling the way healthcare is delivered in every other industrialized nation and set a precedent that Congress cannot do anything big to address big social problems without "coercing" states to be part of the solution.
Moreover, it would diminish Congress’ power to legislate while expanding the court’s conservative grip on the nation’s political affairs. That is what Justice Sotomayor referred to when she said, “the bigger the [national] problem, the less your [Congress] powers are.”
Let’s hope that Denniston’s reading of the conservative justices is wrong. But he has been covering the court since 1948. And unlike the Obama administration, which has put forth a brave face saying it expects the law to stand, this emeritus journalist is looking at the sweep of history and sees the pendulum swinging.