Notes on a Theory…

Thoughts on politics, law, & social science

Anxiously Looking for Answers About the ACA Ruling

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The Court has made it’s ruling. As best as I’ve been able to gather, here’s what happened: Chief Justice John Roberts joined the four Democrats (calling them liberals wouldn’t be very accurate) ruling 1) that the mandate is constitutional (although as a tax, not under the commerce clause, per the objection of three members of the majority including Roberts) and 2) Medicaid expansion is constitutional, as long as it’s not coercive, meaning that the federal government can offer conditional funding for it but cannot penalize states by taking away other funds for failing to adopt the expansion. This means that the battle continues in the states, where legislative battles will have to be fought to ensure the expansion takes place.

I wasn’t convinced that the mandate was necessary (David Dayen said it carried a weak, easily evaded penalty and Jon Walker argued that history showed that subsidies alone were sufficient), which made its inclusion despite the fact that Obama ran against it and it’s deep unpopularity very frustrating. Medicaid expansion was a key means for insurance access expansion.

I don’t know what the odds look like on this.  My initial thought are this.  As a program that targets the poor, Medicaid expansion isn’t terribly strong politically.  The Republicans seem committed to stopping implementation at all costs. And breaking budgets seems to be a conscious strategy, do being a cost saver might actually hurt it’s chances. On average, Republicans are more likely to control states that have a higher percentage of people who fall under Medicaid.  As I said before the ruling came down, the right has been mobilized on this issue and Democrats have not.

Aside from the states, there are things that must be done by the executive branch and Congress in order to fully implement the ACA, and some of these, if I recall correctly, must take place after the next presidential term, so they can’t be done by the Obama Administration regardless of the outcome of the election.  (In addition, there will be additional court challenges to specific  aspects of the law, but these again are mostly out of our hands in the short run.)

So I made no predictions about the “outcome” but the decision does vindicate what I did say-this is not over, and it will be a long slog. Thinking of this in terms of wins and losses, as an outcome instead of a process, will steer you wrong.

Written by David Kaib

June 28, 2012 at 12:54 pm

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