Health care: After ruling, what's next?

Jul. 4, 2012 07:43 PM
The Republic | azcentral.com

Marjorie Baldwin, an economist and a health-care expert at Arizona State University, answered questions from readers last week about the Supreme Court's ruling on the Affordable Care Act.

Following is a transcript of that online session, edited for space and clarity.

Question: Now that the Supreme Court has ruled in favor, is it possible to get it overturned or changed? Is it a done deal forever?

Answer: Now the debate moves to the political arena. Gov. Romney has pledged to overturn the law if he is elected; obviously President Obama would keep it.

The people have a clear choice. Chief Justice Roberts said as much in his ruling: " ... we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them."

Q: Is there any danger of our health-care plans no longer letting us insure our young adult children not in college full time?

A: The Affordable Care Act mandates that insurers allow parents to cover young adults on their parents' health-insurance plans up to age 26. That was effective in 2010 and remains intact.

Q: So as someone who has health care through their employer, does this decision affect me, assuming I continue to get insurance through my employer?

A: Make no mistake, the Affordable Care Act, and the fact the Supreme Court has upheld it, will affect us all. The act greatly expands access to health insurance, which is clearly a good thing. But when people have health-insurance coverage, they consume more health-care services, which will drive up the costs of health care, and health insurance, for everyone. You can expect the costs of health care to increase even more rapidly than without the law.

Q: Can the state of Arizona opt out of the plan?

A: The Supreme Court ruling made it possible for Arizona to opt out of the expansion of its Medicaid program without losing all its Medicaid funding. But the state cannot opt out of other provisions of the law. For example, states must form an insurance exchange where small employers and individuals not covered by employer plans can purchase health insurance.

Q: What is going to keep the health-insurance companies from raising their premiums so high that the lower- and average-income individual will not be able to comply with the mandate?

A: The health-insurance market is competitive. If an insurer raises its premiums so that it is making exorbitant profits, other companies can undercut its premiums and take its business away. But in addition to market forces, the Affordable Care Act requires that 80 to 85 percent of an insurers' revenues go to providing quality health services to the people it insures. Administrative costs and profits are limited to 15 to 20 percent.

Q: How will services for those on Medicare be affected?

A: The act has several provisions that will effectively reduce the payments health providers receive for providing care to Medicare patients. This may cause some providers to stop seeing Medicare patients (because the payments do not cover their costs), so some Medicare patients may have a more difficult time finding a doctor. On the other hand, the act has provisions that will encourage hospitals to reduce re-admissions and reduce the number of infections acquired in the hospital. These provisions are designed to improve the quality of care for all patients.

Q: So, does this mean I can get cheap insurance for my minor child?

A: If you are having difficulty finding affordable insurance for your child now, it may become easier and more affordable through the State Health Insurance Exchange. Federal funding to help states establish the exchange is available now through 2015.

Q: Exactly how are they going to ensure that everybody abides by the law? How will they regulate this?

A: The Department of Health and Human Services has responsibility for writing the regulations that determine precisely how the law will be implemented. Enforcement is divided among a number of agencies; for example, the Internal Revenue Service will enforce the individual mandate.

Q: What is the likelihood that many states like Arizona will opt out of expanding Medicaid and thereby increase costs at the federal level? Is there a good enough incentive for states like Arizona to expand?

A: The federal government will finance 100 percent of the costs of expanding a state's Medicaid coverage from 2014 to 2016, gradually reducing to 90 percent in 2020 and subsequent years. This sounds like a strong incentive, but a state may incur administrative costs in expanding coverage that are not reimbursed, and the federal government could reduce the rate of cost sharing at any time, leaving the states to cover a greater share of the expanded coverage. Some states may be reluctant to assume that risk.

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More nuanced view of Roberts after health care law

WASHINGTON (AP) — Chief Justice John Roberts could have taken down the entire, massive health care law that his fellow Republicans deride as "Obamacare." He could have prevented the Supreme Court decision that largely disabled the most disputed aspects of Arizona's crackdown on illegal immigrants.

He didn't do either, and in the process surprised (or dismayed) longtime court observers of every political stripe.

Those two outcomes in the finals days of his seventh year on the court offer some clues for reassessing what kind of chief justice Roberts is and intends to be. Is he no longer the rock-ribbed conservative loved by supporters and jeered by opponents? Has he become a pragmatic leader mindful of the court's place in history? Is he more canny, but still solidly conservative?

The measure of a justice is best taken after decades of service, rather than a few years. At age 57, Roberts could lead the court for another quarter-century.

But at the very least, the end of the Roberts Court's most consequential term already is leading to revised, and in some cases more nuanced, appraisals of his leadership.

Erwin Chemerinsky, a liberal scholar who is dean of the law school at the University of California at Irvine, announced that the era of the Roberts Court had begun. "He authored the opinion in the most important case in his seven years on the court, and did so against what was expected," Chemerinsky said.

In truth, Roberts' vote to uphold President Barack Obama's health care law was not so much a surprise.

He long had been counted among the possible votes to uphold the law. But it was widely assumed that if Roberts ultimately voted for it, so too would Anthony Kennedy, most often the decisive vote in closely fought cases. It was only the second time in his tenure that Roberts provided the deciding vote for the side favored by the court's liberals.

Up until now, it had been the Kennedy Court, Chemerinsky said, "This year, it was the Roberts Court."

Had Roberts gone the other way, the court would have wiped away the entire health care overhaul, which is the outcome embraced by dissenting Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Kennedy.

Instead, he said the individual insurance requirement at the heart of the law could be upheld as a tax. At the same time, he rejected administration arguments that the mandate was justified by the Constitution's clause giving Congress power over interstate commerce, which has been the authority for most federal programs since the New Deal.

Some legal scholars suggest Roberts produced an essentially conservative opinion with a liberal outcome.

Neal Katyal, the former acting solicitor general who argued the Obama administration's side in the health care cases in several appeals courts, said that Roberts' majority opinion opened the door to potentially important changes in the law that could restrict federal power as it has been understood since the New Deal.

Ilya Somin, a George Mason University law professor, said on the Volokh Conspiracy legal blog that the health care case "gives supporters of limits on federal power some useful ammunition, despite also dealing us a painful defeat."

In addition, Roberts' ruling has helped refocus the public debate over the law and gave Republican opponents ammunition for calling it a big tax increase they would try to repeal.

Just three days earlier, Roberts, joined by Kennedy this time, sided with three liberal justices in the Arizona immigration case. Justice Elena Kagan, one of the court's liberals, did not take part because of her previous involvement as solicitor general, when she was the Obama administration's top Supreme Court lawyer.

Roberts joined in every word of Kennedy's majority opinion that struck down three contentious provisions of the law, but allowed one to go forward — the requirement that police check the immigration status of people they stop for other reasons.

Roberts could have sided with the conservatives who favored allowing other provisions to take effect, but that would have left the court divided 4-4, a distasteful outcome because it amounts to a waste of the justices' time.

What's more, Roberts might have reasoned that Kagan probably would side with the other liberal justices and Kennedy in some future immigration case over similar state laws that she could take part in. Such a case down the road probably would produce an outcome similar to what the court achieved last week in the Arizona case. But if Roberts stuck with the conservative justices, that scenario would have deprived him of a chance to try to influence the majority opinion.

Yet as the court followed its usual practice of issuing a torrent of opinions just days before the justices scatter for the summer, Roberts did not exactly abandon his frequent allies on the right.

He wrote a sharp dissent from Kagan's majority opinion barring mandatory sentences of life without possibility of parole for people younger than 18. The chief justice and the other conservatives rebuffed pleas from supporters of campaign spending limits and from liberal justices to take a fresh look at the 2-year-old Citizens United decision, perhaps the most politically unpopular decision of Roberts' tenure.

The court struck down Montana's limits on corporate campaign spending because the majority, including Roberts, said the state law conflicted with the Citizens United decision.

Montana Attorney General Steve Bullock called the court just "another political body." Liberal groups bemoaned the loss of a chance to carve out state exceptions to the Citizens United ruling that unleashed a tidal wave of big money contributions during this election year.

Roberts has called for consensus in judicial decisions since he arrived at the court in September 2005. He has advocated judicial modesty, though his critics insist he himself cast that aspiration aside in Citizens United and other high-profile cases involving abortion rights, race and gun rights.

Other predictions of furious discord among the ideologically divided justices in big cases were sometimes proved wrong. The justices avoided a major confrontation over the landmark civil-rights-era Voting Rights Act in an 8-1 decision that resolved the case without reaching disputed constitutional issues.

When the court heard a dispute over congressional redistricting maps in Texas that essentially pitted Republicans against Latinos and African-Americans who argued for greater representation, the court seemed headed for its typical conservative-liberal split. Instead, 11 days after hearing arguments, the court returned a consensus, unsigned opinion that gave both sides some of what they wanted.

Paul Clement, who argued the health care, immigration and redistricting cases, said the Texas case was a remarkable accomplishment for Roberts. "It was not foreordained as a unanimous decision. One has to assume it was largely due to the leadership of the chief justice," Clement said.

So what does the future hold?

The court already has agreed to hear a challenge to the University of Texas' affirmative action program. A new case involving the Voting Rights Act and challenges to restrictions on gay marriage are close behind.

Roberts has voiced serious reservations about racial preferences in government programs. In 2007, he declared in ruling against public school system programs to promote integration that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Ben Wittes, a legal scholar at the Brookings Institution think tank in Washington, cautioned against grand re-evaluations of Roberts because of the health care case.

"Roberts is, to be sure, no shrinking violet about ideologically divided opinions when, in his view, the law compels them, but he apparently has a more flexible view than do his conservative colleagues concerning the difference for constitutional purposes between a penalty and a tax," Wittes said. "In other words, don't be too surprised if Roberts next terms looks like a conservative again. He actually did not stray very far from where the other four conservatives ended up in this case — just over a consequential line."

Roberts repeated his desire to have the court adhere to judicial modesty Thursday at the start of his health care opinion.

"We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions," he wrote.

Thursday's dissenters accused Roberts of "vast judicial overreaching." Several years ago, Justice Stephen Breyer said of Roberts and the other conservatives at the end of an especially contentious term with an unusually high number of 5-4 decisions that "never have so few done so much" in so little time.

Roberts has been mocked for comparing a justice to a baseball umpire calling balls and strikes.

But umpires often take it as a compliment when both teams are griping about their rulings.

___

Online:

Supreme Court interactive: http://hosted.ap.org/interactives/2012/supreme-court

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What happens after the Supreme Court rules on health care?

This week, we had six leading legal experts debating the Supreme Court’s upcoming health care ruling. So what did the group say about the next steps after the court rules?

balkinbarnett Jack Balkin and Randy Barnett

For now, the consensus in the media is that the Supreme Court will issue a decision on the Affordable Care Act on Monday, June 25, the last day before its recess. (The actual ruling has been known by the court internally but not made public.)

Our session on Wednesday at the National Constitution Center included Jack Balkin of Yale Law School and Randy Barnett of Georgetown University Law Center, moderator John Hockenberry, and expert guests Stephanos Bibas (University of Pennsylvania Law School), Jamal Greene (Columbia Law School), Ilya Shapiro (Cato Institute) and Neil Siegel (Duke University School of Law). The event was presented by the Center’s Peter Jennings Project and The Constitutional Sources Project (ConSource).

Much of the discussion among the experts was on the merits of the case as it was presented in late March to the nine justices.

Full Video Replay:

Health Care Reform’?s Big Test: Commerce and the Constitution from National Constitution Center and National Constitution Center on FORA.tv

But the issue came up of what happens after June 25 (or another earlier day) when the court rules? The discussion yielded a lot of interesting points that extended beyond legal arguments.

Barnett of Georgetown Law said if the court rejects the Affordable Care Act and the controversial individual mandate to buy insurance, then it will have drawn a line about the growth of congressional power.

“If the mandate is struck down, it will be a very important case,” Barnett said. “The court will continue to draw a line beyond which Congress cannot go and that will be very, very important. But where they are going to draw that line is where the line existed in 2009 before this bill was passed.”

Audio: Barnett on Drawing a Line on Congressional Power

Barnett added if the court decides the entire ACA is constitutional, it would essentially give Congress unchecked powers in some cases.

Shapiro of the Cato Institute also said if the court rejects the ACA, it will take America back to the status quo on health care before President Obama and Congress passed the ACA.

Both Barnett and Shapiro thought the court’s ruling would be narrow and not applicable to other cases.

Greene of Columbia Law said if the court struck down the ACA, it would one of the most significant decisions since the Missouri Compromise and the Dred Scott case.

Balkin of Yale Law said the decision will have no effect, in the long run, on the public’s respect for the Supreme Court.

Audio: Why The Supreme Court Retains Respect

“It will have absolutely no effect on the court’s legitimacy,” Balkin said. “The military is the most admired and respected institution in American life, and the Supreme Court is next.”

Bibas of University of Pennsylvania Law said whatever the court rules against the ACA, it’s not a radical departure from recent acts to expand or contain the power of Congress. “Ours is a government of limited powers,” he said. “It’s not a radically new departure.”

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He also said the long-term benefit from the health care case is a public dialogue that is needed.

Audio: Health Care Will Spark a Broader Debate

Bibas said, “That conversation is going to be continued and many more chapters are going to be written by the Congress and the president before its ever comes back to the court. Rather than being pessimistic about all the negative possibilities that come out of it, why shouldn’t we be fundamentally optimistic about spurring a debate that maybe was long past due?”

Siegel of Duke University School of Law said the court’s ruling could affect other laws, depending on how the justices craft their opinion.

No one expected health care to fade away as an issue.

Barnett said if the law is struck down, health care will be at the center of the general election and the next Congress.

“If this gets struck down, there are going to be common sense health reforms that do not try to take over and rework and re-engineer one-sixth of the economy, which this monstrosity did,” he said.

Hockenberry couldn’t get a group opinion on the decision. Balkin said he had previously predicted the court would uphold the law by a 6-3 vote, but his predictions were “always wrong.” Barnett said he was sticking by a decision to not making any predictions, while the remaining four experts were split.

Audio: The Group’s Predictions

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WOODLAND HILLS, Calif. (AP) -- Health Net Inc.'s first-quarter loss narrowed compared to last year, but the managed care company slashed its 2012 earnings outlook for its continuing operations due to some unexpected costs, and its performance fell far short of analyst expectations.

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Health-care reform: Main issue after 2 years is, will it survive?

Two years to the day after President Obama signed it into law, the Affordable Care Act remains very much a work in progress.

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The White House says its health-care reforms have improved the lives of millions, though the legislation’s most important provisions have yet to take effect. Detractors – a category that includes every GOP presidential hopeful – scorn Mr. Obama’s health reforms as Treasury-busting infringements on American freedoms.

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