Chief Justice Roberts is the diabolical genius of free-market jurisprudence. Reformers have been sucker-punched. Any possibility of creating an equitable system for delivering medical care has been postponed for at least a generation.
Yet, liberals are rejoicing at yesterday’s Supreme Court ruling, in which Roberts left the three arch-conservatives (Thomas-Scalia-Alito) and Kennedy, to join the usually liberal wing (Brier-Ginsberg-Kagan-Sotomayor) in order to uphold the Affordable Care Act, the health care financing law of 2010. Paul Krugman says that the “real winners are ordinary Americans — people like you.”
The celebration is misguided. After yesterday’s ruling, there will be no national health system. There will be no single-payer nonprofit insurance plan. For the foreseeable future, diagnosis, treatment, and corporate profit will remain the inseparable triumvirate of medicine. Hardly party-worthy.
Sure, there are a few things worth cheering about. As Josh Levs set forth yesterday in a particularly cogent summary of the new law, insurers won’t be able to deny coverage to people with pre-existing conditions (young people immediately, everyone from 2014 on). Until you’re 26, you will be able to get health insurance from your parents’ insurance policy, especially useful now with unemployment so high among the young. Some of the “doughnut hole” in Medicare prescription drug reimbursements will be closed.
But Roberts’s brilliance was revealed in his handling of the vexatious issue of the mandate — the requirement that each non-indigent American purchase health insurance coverage or be fined by the Feds. The fine would begin at $285 per family or 1% of income, whichever is higher, in 2014 but climb to over $2000 or 2.5% by 2016. Instead of looking at the mandate and accompanying fine for noncompliance as a regulation, Roberts picked up on the fall-back argument adduced by Solicitor General Donald Verrilli, Jr. — he asserted that it’s really a tax. And, of course, Congress can levy taxes.
At Slate, Tom Scocca explains that Roberts used his majority opinion on this case to undercut Congress’s right to regulate commercial activity. For Scocca,
the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause… Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.
According to CDC’s summary of the latest Congressional Budget Office estimates, about 30 million uninsured Americans will gain coverage under the ACA in the next few years, leaving about 27 million without health insurance at all. That’s an estimate, because undocumented immigrants are untouched by the ACA. Ditto prisoners, who supposedly get health care in their institutions but, by all indications, often don’t.
And, the Roberts ruling opens the door to questions about the Federal government’s capacity to get the states to expand Medicaid coverage. Roberts and four justices say it’s limited. Four others say it doesn’t exist at all. As Charles Ornstein explains at ProPublica, that means that some states might simply refuse to expand Medicaid, which would undercut one of the aims of the ACA.
The final score is hardly a victory for “ordinary” Americans.
- We now have a Congress that may tell Americans to give money directly to private corporations, or pay a penalty to the Federal government. At least when Congress can claim that paying private corporations is in our best interest. In other words, now private insurance companies may collect taxes.
- We will have insurance companies that may continue to profit from Americans’ suffering.
- We will still have nearly 10% of the population without access even to primary care.
- We now have questions about whether Congress may impel the states to indemnify the sick poor. (Hardly cause for optimism, especially at a time when states are seeking ways to lighten budgetary obligations, for instance by reducing pension benefits for public employees.)
And the Roberts ruling accomplishes this victory for corporate power by upholding the law, not striking it down. That means that Congress won’t re-consider health care financing anytime soon. Which means that the single-payer system will rest in its grave for the time being.
Yesterday was no cause for celebration. It was a dark day for health care reform.
