Notes on a Theory…

Thoughts on politics, law, & social science

Posts Tagged ‘ACA

A Government of Enumerated Powers….Sometimes

with one comment

On Thursday, every single member of the Court agreed that the Constitution is one of enumerated powers, as the justices split three ways in ruling on the American Care Act, a comprehensive health insurance reform bill: upholding the mandate, but as a tax under the power to tax and spend and not a penalty under the commerce clause, striking down the provision authorizing the Secretary of Health and Human Services* to penalize states that failed to participate in the expansion of Medicaid , but allowing the Medicaid expansion and the Secretary’s authority to stop funding for the expansion.  Chief Justice Roberts’ opinion (pdf) waxes poetically about the centrality of the principle that the Constitution only allowed for enumerated powers at the federal level.

The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid. That is, rather than granting general authority to perform all the conceiv­able functions of government, the Constitution lists, or enumerates, the Federal Government’s powers.

While not all the opinions were as explicit about this, they all rested on this idea.

This contrasted quite strongly with the position taken by all nine justices in Arizona v. United  States  (pdf) that the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration despite disagreeing over whether Arizona’s punitive immigration law was preempted by federal law.  This is from the majority opinion (which Roberts joined)

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982);see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)). [my bold]

The odd thing is that both positions were consistent with past decisions. When it comes to foreign affairs, the Court has, at least since United States v. Curtiss-Wright Export Corp. (1936) if not the Chinese Exclusion Cases in the 1880s. When it comes to domestic affairs, the enumerated powers principle has held sway. One could make an argument that the Constitution only was meant to be a system of enumerated powers with regard to domestic affairs (Curtiss-Wright does just that, although I’d say it’s not persuasive in the least). But typically, the two claims are made without such qualifications.  And of course, the lines between domestic and foreign affairs are fairly blurry (for example, with powers relating to ‘national security’ largely unmoored from any limits at all yet applying to American citizens existing well within the interior).

All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk.  Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.

*Seriously, what are ‘human services’?

Written by David Kaib

July 2, 2012 at 5:01 pm

The Impact of Limits of Medicaid Expansion

with 3 comments

As I noted earlier, the big question at the moment is what the potential impact of the limits the Court imposed on the ACA’s Medicaid expansion, which extends to all adults earning less than 133 percent of the poverty level.

David Cole, who I respect a great deal, has thing to say in The Nation

It seems unlikely that states will turn down those funds. Under the ACA, the federal government initially covers 100 percent of all new Medicaid costs, and while the federal contribution  diminishes over time, it never falls below 90 percent of the program’s cost, so any  rational  state will likely take the money and expand its coverage.

I don’t see what that last statement has to do with anything. If your goal is to ensure insecurity, to provide punishment to those at or near the bottom, then the fact that the federal government will mostly pay for achieving a goal you don’t share is irrelevant.  Since breaking the budget to justify further cuts to things like health care, education and public employee pay & benefits is a standard strategy among Republicans in the states right now, this seems to have the logic exactly backwards. This statement is not an outlier, but it seems to reflect an all too common mistake–assuming that conservatives and progressives share the same goals but disagree on means.  I’d suggest reading Cory Robin‘s most recent book to fully understand how mistaken that is. (Robin has some great posts which include excerpts from the book that discuss Justice Scalia that are very timely).

My concern  is articulated well in a post entitled Beyond the mandate: Court’s ruling on another ACA provision could have sweeping implications by Ned Resnikoff:

As Lean Forward reported earlier, George Washington University law professor Jonathan Turley believes that the Medicaid decision could spell disaster for health care reform:

“This creates a ripple effect,” Turley said on MSNBC. “A majority of states oppose this law. If they had an ability to opt out, they would. I don’t see how the health care law could survive if the pool is reduced by that amount. You need to force young people to buy health insurance since they’re not going to get sick as often and (having them in the pool) makes it more affordable.”

Note the issue here isn’t just these individuals, but the impact leaving them out could have on everyone else.

Like I said, this history isn’t written yet.  Whether it’s implementing the law, or expanding it in the future, what happens will be a result of politics,of agitation.  If only one side mobilizes, they have the advantage.

Written by David Kaib

June 28, 2012 at 5:14 pm

Anxiously Waiting the ACA Ruling

leave a comment »

One of the things I’ve been emphasizing lately is how the overwhelming focus on formal decisions, in both political science and non-academic political discourse, distracts us from much of what’s going on.  That’s certainly true with the much anticipated ACA ruling from the Supreme Court.

As a general rule, there is an inverse relationship between the amount of attention something gets and the amount of leverage regular people have over it.  The presidential election is an obvious example, but this decision may be the best example.  We don’t have much leverage over the Court, but we certainly don’t have any at the moment. The Court has already made its decision. We’re simply waiting for them to announce it.

Whatever happened, knowing the result within the first few seconds doesn’t change anything. And what’s more, we won’t know what’s going to happen even when the decision gets announced and we have time to digest it (no doubt there will be all sorts of misinformation initially). Without suggesting that the decision is inconsequential, it’s important to understand that it’s impact depends entire on how people react.  Decisions are not self-executing.

Here’s what we know: the right has been mobilized on this since long before the ACA was written.  They didn’t accept defeat when it passed, they just kept on fighting. The law requires states, the executive branch, insurance companies, and Congress to do things ot implement it. Some of these have already happened, some have not.  This process isn’t scheduled to be completed until after the end of the next presidential term.

The left, on the other hand, wasn’t mobilized for the most part. It was divided over what to push for.  The White House pressured those who sought to pressure recalcitrant legislators to stop doing so.  When the process moved to the states, a few states saw pushes to implement it in strong ways.  But in many places that didn’t happen. The strategy from elite Democrats was to craft an agreement in Washington DC, not to engage the public, which meant operating from a position of weakness.

So ask yourself: win, lose or draw, what’s the plan?  There is talk about pushing single payer if the Court strikes the ACA down, but how? How many Democrats in office would support that?  And it the Court upholds it, it doesn’t mean the law is safe.

No matter what, the outcomes won’t be decided only by the judges. It depends on how those off the Court react. Everyone is anxiously awaiting the ruling.  But are they ready for what is to follow?

Written by David Kaib

June 28, 2012 at 12:03 am

Posted in Uncategorized

Tagged with , ,

Follow

Get every new post delivered to your Inbox.

Join 3,485 other followers

%d bloggers like this: