TIM JOST INTERVIEWS ANDY KOPPELMAN ABOUT KOPPELMAN’S NEW BOOK, THE TOUGH LUCK CONSTITUTION (Oxford University Press 2013).
Q. (Tim Jost) Your book explains, for the general reader, what was at stake in the health care fight and what the Supreme Court did. Why should the general reader care? All this is old news.
A. (Andy Koppleman) If you’re sitting on a hill, and a large boulder rolls past you, it’s a good idea to look uphill to see if any more boulders are coming. The history matters because it shows that there are real dangers.
Last spring, the Supreme Court came within one vote of taking health insurance away from more than 30 million people. Chief Justice John Roberts declined to join the four judges who wanted to do that, but he embraced all their principles. Those principles are nasty. All five judges think that universal health care would be unconstitutional. All are suspicious of a law that asks the healthy and rich to support medical care for the sick and poor. All of them are still on the Supreme Court. They continue to exercise political power over the rest of us. Americans need to understand what happened.
Q. So what do you tell us that we don’t already know from the news stories?
A. My book explains why Obama decided to include the unpopular provision requiring everyone to have insurance. I also show that the Republicans, who originally proposed that idea, turned against it just because they wanted to deny Obama a victory. Most importantly, I show where they got the idea that the mandate was somehow a violation of an important liberty.
Q. Why did the constitutional case take the form it did?
A. The Republicans’ objection to the Act was a combination of politics and substance. Some of them honestly thought it was bad policy. But you can’t challenge a law in court because you don’t like the policy. You need to make a constitutional objection. The constitutional objection was invented, in sketchy form, just as the bill neared passage and almost instantly became Republican Party orthodoxy. It relied on an extreme libertarian philosophy, which holds that, if you get sick and can’t pay for it, that’s your tough luck. The challengers’ arguments would have struck down the Act even if the alternative was a huge population of uninsured. The dark heart of the case against the ACA is the notion that the law’s trivial burden on individuals was an outrageous invasion of liberty, even when the alternative was a regime in which millions were needlessly denied decent medical care.
Q. What about the legal arguments?
A. These are less complex than many people think. Insurance is part of commerce among the several states. Congress can regulate it. Therefore, Congress can prohibit health insurers from discriminating on the basis of preexisting conditions. Under the Necessary and Proper Clause, it gets to decide what means it may employ to make that regulation effective. I explain how the challengers tried, and failed, to get around this simple argument.
Q. Much of your book deals with the history of these constitutional provisions that formed the basis for the ACA litigation. Why should we care about this history?
There are two reasons. One is that, in interpreting any law, it is helpful to know the reasons why the law was passed. The second is that the framers of the Constitution were very bright people, and their insights are useful in addressing today’s problems.
The Constitution was adopted specifically in order to give Congress power adequate to address the nation’s problems. That is its fundamental and overriding purpose. The health care issue is one that the states had tried and failed to address: only Massachusetts did it, and its circumstances were very unusual. A situation in which neither the states nor the federal government could solve the country’s problems was what we had under the Articles of Confederation. It is precisely what the Constitution was intended to prevent.
Q. What are the boulders that you suggest may still be coming down the hill?
A. The real moral force behind the challenge to the ACA wasn’t any technical legal argument. It was most clearly stated at the oral argument, by Justice Antonin Scalia. The counsel for the United States argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Scalia responded: “Well, don’t obligate yourself to that.”
Q. Does Justice Scalia really think that there’s no obligation to care for sick people? Why was he saying this?
A. The answer has to do with the structure of constitutional law. If you want to trash the ACA –- and Scalia did –- you have to assert constitutional limits that would exist even if there were no other way to deliver medical care to everyone.
This is why so many people (including, in the end, a near-majority of the Court) who were not Tough Luck Libertarians at all, who would find that philosophy repellent, nonetheless found themselves saying Tough Luck Libertarian things, and making claims based on a Tough Luck Constitution –- a constitution in which there is no realistic path to universal health care. That Constitution won’t be attractive unless Tough Luck Libertarianism is right that it is acceptable to deny people the medical care they need. The challengers to the ACA talked a lot about slippery slopes – at the bottom of this one was a law requiring you to buy broccoli – but there’s a slope in the other direction as well. Once you decide that it’s acceptable to hold your nose and make this kind of argument, it will be easier next time.
Q. The NFIB case which the Supreme Court decided was only one of dozens of cases that have been brought challenging the Affordable Care Act. One of those cases brought by Liberty University challenged that provision of the ACA requiring large employers to offer health insurance to their employees or pay a tax penalty. Liberty University lost that case in the Fourth Circuit Court of Appeals, but the Supreme Court remanded it for reconsideration. Is there any possibility the courts will find that Congress lacks the power to require large employers to offer health insurance? Would Tough Luck Libertarianism go this far?
A. It’s hard to see how. The employer mandate is described as a tax in the statute. The individual mandate isn’t, but the Court upheld it as a tax. Chief Justice Roberts also objected to the mandate because you don’t have to do anything to be subject to it. To be subject to the employer mandate, you have to decide to employ people. Congress has had the power to regulate economic transactions for nearly a century. Even the Roberts Court isn’t going to change that.
Q. Several states are refusing to implement the insurance market reforms imposed by the ACA and one state is considering legislation that would prohibit the licensure of an insurance plan that would participate in an ACA exchange. Does the Supreme Court’s decision give any hope to states that are still refusing to assist in implementing the ACA?
A. If states won’t participate in the health exchanges, then the Federal government can and will do it for them. That has already been happening. It has been well settled for years that state laws designed to disrupt the operation of a federal law are unconstitutional.
The one part of the Court’s decision that empowers the states to stay out of the federal scheme is Chief Justice Roberts’s decision that states could refuse to provide Medicaid to their poorest citizens. The Court ruled that the states could turn down the Medicaid expansion while continuing to participate in the old Medicaid program. One might have expected that no state would turn down such a good deal: the federal government will pick up 100% of the costs until 2016, with its contribution gradually declining to 90% in 2020 and thereafter. And there is added pressure to take the money, because previous forms of federal aid were cut off. Hospital associations agreed to accept cuts to their reimbursement rates, expecting that this would be more than made up by money from patients newly insured through Medicaid. States refusing the money would not only be hurting their own working poor. They’d be rejecting a huge infusion of cash into their economies, creating many, many jobs –- good jobs, for doctors and well-paid medical technicians. That money has a powerful multiplier effect, creating jobs outside the health sector as well.
Many Republican governors have now turned down the money, but that number is shrinking. Gov. Rick Scott of Florida, for instance, recently changed his mind. The big question mark is Texas. One in four Texans is uninsured. The ACA would insure almost two million of them. The expansion would give Texas an additional $52.5 billion from 2014-2019, which is more than half of the state’s annual budget. Gov. Rick Perry has insisted that he won’t take the money. If you are a hospital executive in Texas, you probably have a fiduciary duty to do all you can to defeat Rick Perry. Meanwhile, the Court has succeeded in hurting millions of people. Four days before Perry announced his decision, the federal Agency for Healthcare Research and Quality ranked Texas as having the worst health care in the nation. This is the Court’s notion of “liberty.”
Timothy S. Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a co-author of the casebook, Health Law, used widely throughout the United States in teaching health law, and of a treatise and hornbook by the same name. His other publications are simply to numerous to list.
Andrew Koppelman is John Paul Stevens Professor of Law, Northwestern University. He has written extensively about the legal debate surrounding the Affordable Care Act for Salon. His latest book, The Tough Luck Constitution and the Assault on Healthcare Reform, will be published by Oxford University Press on March 22, 2013 and available online and through bookstores everywhere.
“Andrew Koppelman has magnificently captured the current legal, political and policy-related lay of the land in Washington. His insightful analysis here should be mandatory reading for anyone concerned about the future of health care in America.”
–Tom Daschle, former Senate Majority Leader
Filed under: Health Law, Health Reform, Medicaid
Professor Jacobi writes:
GOVERNOR CHRISTIE’S decision to expand Medicaid coverage to more residents will improve the health of many low-income New Jerseyans, and save the lives of some. In addition, the expansion dovetails with other reform efforts in the state, furthering implementation of innovative programs for the poor and vulnerable.
The governor’s announcement is great news for low-income individuals. The Rutgers Center for State Health Policy estimates that the expansion will lead to an enrollment increase of about 234,000 in NJ FamilyCare, which combines New Jersey’s Medicaid and Children’s Health Insurance Program.
The expansion addresses gaps in the current Medicaid system, under which many poor people were ineligible even if they had absolutely no income or assets.
The expansion will plug those gaps, allowing people to enroll so long as they are lawful residents with an income of no more than about $15,414 per year, which is about the gross income of a full-time minimum wage worker.
Health insurance coverage is important to personal health, and it is simply not true that all Americans have meaningful access to health care. As the Institute of Medicine of the National Academy of Sciences has found, people who have health insurance — including Medicaid — have better access to a regular source of health care. Those with no coverage, in contrast, are more likely to do without medically necessary care, particularly for chronic conditions, and to not fill prescriptions due to cost.
As a consequence, the uninsured are more likely to be in “fair” or “poor” health — and to die before their time. Medicaid expansion will keep people healthy and even save lives.
Read the full feature, “How Medicaid expansion will help New Jerseyans”
U.S. Supreme Court Health Reform Litigation, the Individual Mandate, Anti-Injunction Act, Commerce Clause and Even The Militia Act
Filed under: Health Law, Health Policy Community, Health Reform
We are literally only days away from the Supreme Court oral arguments in the ACA litigation (or the Health Reform case as it is popularly known) and as such, we thought it would be of some help to publish again some of our past posts on aspects of the law now being challenged. In addition to being published here at HRW, many of the pieces below found further life elsewhere, the Washington Post, NY Times, The Record, The Health Care Blog, Health Law Prof Blog, Concurring Opinions, the aca litigation blog, to name a few. Some originated elsewhere and found a home here. Either way, they’re here in one place for your enjoyment as we all hold our breaths and get ready to attempt to count robed votes by virtue of questions posed in the arguments to come.
aca litigation blog (All the briefs, docs, lawyers, helpful updates, analysis, etc. in one easy place. Prof Joondeph and Brandon Douglass are to be commended for this splendid effort — yeomen’s work and finely done. The aca litigation blog is automatically fed into our sidebar and we were pleased to offer a few of Professor Joondeph’s posts in full here at HRW, and very much look forward to posting more. If you haven’t checked it out yet, you absolutely should.)
Professor Tim Greaney, St. Louis University School of Law
Michael Ricciardelli, J.D.
Election Fallout and Why State Initiatives to Exempt Residents from Health Care Law are Not Just Symbolic
Recent news about House GOP efforts to push through a bill nicknamed the “Repealing the Job-Killing Health Care Law Act” that would scale back healthcare reform has reminded me of a passage from Shakespeare’s Romeo and Juliet:
“What’s Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What’s in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call’d.”
So Juliet Capulet reasons through her love for Romeo Montague, who comes from a rival family, and suggests the two set aside their family names and rivalries for the sake of their love. Okay, so the situation here isn’t quite the same and I daren’t suggest that certain political characters set aside their rivalries for the sake of the American people’s health and well-being (although, heaven forbid, it might be in our best interest!). Yet the discussion of names — in terms of how the people associated with them can bring us together or tear us apart, branding, and even media spin — seems appropriate for our current political and social climates. Starting with the Protected Patient Affordable… wait, errr… Obamacare… no, wait, got it, the Patient Protection and Affordable Care Act, also known as the “Affordable Care Act.”
In “Why The Affordable Care Act Needs A Better Name: ‘Americare’” (Health Affairs, August 2010), William Sage, vice provost for health affairs at UT-Austin, makes the most sensible suggestion of rebranding the healthcare law so it “become[s] something that beneficiaries would not only accept, but would also defend.” Professor Sage proffers “Americare” as a name that:
would assert a collective interest in health system value and efficiency. It would build courage to do more than tinker at the margins with new payment methods, organizational structures, and professional skills. Most important, a shared identity would signal our decision to rein in special interests and begin a social conversation about redesigning health care delivery to produce the most cost-effective results.
Promoting a new name that fosters a collective identity — and, furthermore, that is catchy and inspiring — is not only sensible, but obvious (consider the “No Child Left Behind Act” — the policy may have its critics, but the name sure is catchy and who would argue in favor of leaving a child behind?). So obvious, in fact, that I don’t know how the healthcare reform proponents missed the boat (Professor Sage considers three reasons why), because their opponents not only caught the boat, but started steering it right at them: “Obamacare” (which, even if you believe it’s a friendly term (and I don’t), still focuses on the individual – the President – rather than the collective health of the American people), ”death panels,” and the “Repealing the Job-Killing Health Care Law Act.”
The AP recently reported on some statistics forecasting healthcare-related job losses that are wildly circulating around our nation’s capital. The nonpartisan Congressional Budget Office (CBO) projected that the current healthcare law “will reduce the amount of labor used in the economy by a small amount –roughly half a percent– primarily by reducing the amount of labor that workers choose to supply” because people won’t be trapped in a job just to get the health benefits. A recent report by House GOP leaders has cited the CBO projections and has interpreted them to mean some 650,000 jobs could potentially be in jeopardy.
Yet far from cutting the number of available jobs, the current law enables people to voluntarily leave the workforce (by retiring earlier) or continue to work in less demanding jobs. AP reporters found that:
the law’s penalties on employers who don’t provide health insurance might cause some companies to hire fewer low-wage workers, or to hire more part-timers instead of full-time employees…. But the main consequence would still be from more people choosing not to work.
So what has the CBO (actually) said about the “Repealing the Job-Killing Health Care Law Act” (before more numbers start wildly circulating)? In a letter to Speaker of the House John Boehner, the CBO analyzed, among other things, the bill’s potential impact on federal budget, discretionary spending, and the number of insured. With respect to the effects on the number of insured, the letter states that under the bill:
about 32 million fewer nonelderly people would have health insurance in 2019, leaving a total of about 54 million nonelderly people uninsured. The share of legal nonelderly residents with insurance coverage in 2019 would be about 83 percent, compared with a projected share of 94 percent under current law (and 83 percent currently).
That projected difference of 32 million in the number of uninsured people in 2019 reflects a number of differences relative to circumstances under current law. Approximately 24 million people who would otherwise purchase their own coverage through insurance exchanges would not do so, and Medicaid and the Children’s Health Insurance Program would have roughly 16 million fewer enrollees. Partly offsetting those reductions would be net increases, relative to the number projected under current law, of about 5 million people purchasing individual coverage directly from insurers and about 3 million people obtaining coverage through their employer.
Even if the Senate doesn’t approve the bill, CNN reports that healthcare law opponents, such as House Majority Leader Eric Cantor (R-VA), promise to, at the very least, defund and delay healthcare reform provisions. Either way, healthcare law proponents must rethink their campaign to maintain (or rally, depending on how things go) support among the American people… starting with an inspiring, new name.
(My thanks to my dad for emailing me the AP article that inspired this post and to Kate Greenwood for directing my attention to Professor Sage’s article).