Election Fallout and Why State Initiatives to Exempt Residents from Health Care Law are Not Just Symbolic

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As the election results filter in and America finds itself trying on some level to read tea leaves, analysts and pollsters are hard at work trying to get a sense of why things fell out the way they did. Most pertinent to this blog, of course, is just what kind of role the health care law played in these elections. The Wall Street Journal’s Health Blog writes:

Official exit polls put health care as the second-most important issue driving votes, with 19% of those surveyed by Edison Research (for media organizations) saying it was their key issue, Politico reports. That paled, however, to the 62% who said the economy was most important.

Time Magazine’s Swampland Blog has a quick and effective breakdown of the health reform impact on a number of candidates. Entitled “Mixed Results on the Health  Reform Referendum,” you can find that here.

I have, however, issue with one aspect of the Time piece. It states:

Voters in Arizona, Colorado and Oklahoma also had a chance to weigh in on symbolic ballot initiatives to amend their state constitutions to exempts residents from portions of the Affordable Care Act. These are symbolic because federal law trumps state law — the point of the initiatives is basically to send a message of opposition. Oklahoma voters resoundingly approved their measure. (Missouri voters acted similarly in August.) It’s still early, but Colorado voters look like they are more split, with 55% of voter voting against the measure with 24% of precincts reporting. In Arizona, even fewer votes have been tallied — the count stands at 56% approving the measure with 14% of precincts reporting. (emphasis added).

I do not discount that these initiatives have symbolic value, but as I’ve noted before on this blog, such initiatives are not wholly symbolic. When the AMA’s Amed News wrote a similar story regarding the similar Missouri initiative, I noted that a federal judge in Virginia found standing in a challenge against the health care law based upon just such an initiative. I wrote:

Generalities aside, as is best in this regard, it strikes me that the Missouri initiative may have more than just symbolic value. Importantly, in the recent federal court decision regarding Virginia’s suit against the individual mandate, the judge in that case found standing for the state of Virginia–an exceedingly important, though procedural, ruling. It is exceedingly important because without standing the case could simply not go forward. The judge in the case found standing for Virginia’s 10th Amendment claim largely based upon a law passed subsequent by the state of Virginia. Regarding that matter I wrote:

In deciding the standing issue, Judge Hudson, according to Professor Jack Balkin, made much of the “Virginia Health Care Freedom Act– which asserts that no Virgina citizen may be forced to purchase health care insurance; that this law conflicts with the federal Affordable Care Act, and therefore Virginia has standing to challenge the act under the 10th amendment.”

Virginia’s Act was passed subsequent to the federal law in question; other states challenging the individual mandate do not, at present, have such a law to rely on. As Professor Balkin points out, however, the Virginia Act being deemed sufficient to buttress standing in a States’ rights Tenth Amendment claim is interesting– to say the least. It begs the question.

In more than just symbolic terms, Missouri may have just answered that question–at least in terms of 10^th Amendment standing–if, of course, its federal district court sees the matter in the same way as did Judge Hudson. Certainly not guaranteed– the Missouri Federal Court is not bound by the Federal Court of Virginia– but nonetheless, Missourian’s just laid claim to an argument that has won elsewhere.

Arizona, Colorado and Oklahoma may have just done the same.

Parsing “Populism” in Resistance to Reform

Today the NYT leads with a story on a growing resistance to the individual mandate to purchase health insurance. The mandate is a key part of virtually all the reform bills now being discussed. A “growing group of lawmakers are pressing for state constitutional amendments that [they believe] would outlaw” the mandate in their states. Law professors have a dim view of the effort:

“States can no more nullify a federal law like this than they could nullify the civil rights laws by adopting constitutional amendments,” said Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law.

Mark A. Hall, a law professor at Wake Forest who has studied the constitutionality of mandates that people buy health insurance, said, “There is no way this challenge will succeed in court,” adding that the state measures seemed more “sort of an act of defiance, a form of civil disobedience if you will.”

Even Randy E. Barnett, a Georgetown Law professor who has written about what he views as legitimate constitutional questions about health insurance mandates, seemed doubtful. “While using federal power to force individuals to buy private insurance raises serious constitutional questions, I just don’t see what these state resolutions add to the constitutional objections to this expansion of federal power,” Professor Barnett said.

What I find so depressing about the new Orval Faubuses of health care is their failure to address funding mechanisms for purchasing health that would make the mandates much less onerous. As I blogged earlier this summer, the House Tri-Committee Bill tries to shift the burden of paying for health care from the already strapped lower-middle class to wealthier citizens who have disproportionately benefited from globalization and other economic trends. At that post, attorney David S. Miller commented:

A mark-to-market tax on the publicly-traded securities of the highest-income and wealthiest individuals would achieve [even more progressivity]. This proposal would also raise significantly more revenue than the [proposed House] surtax, would not require any increase in tax rates, would affect far fewer taxpayers, and would be more in line with the consensus view that the tax base must be broadened. It would also level the playing field between wage and income earners (who are currently subject to tax at ordinary income rates on all or virtually all of their economic income) and with investors (who defer tax indefinitely on appreciation and, when taxed, pay it at reduced long-term capital gains rates).

Unfortunately, the ballyhooed Baucus Bill appears to be far less redistributive than even the House Bill (which I have criticized for failing to distinguish between the merely well-off and the truly wealthy–a very important distinction in an era of fractal inequality). The new state resistance to a mandate should be seen as less a defense of the middle class than it is a sad example of classically self-defeating resistance to equitable distribution of social benefits and burdens.

Health reform financing must rely not merely on redistribution from the healthy to the sick, but also from the rich to the rest. A just society is committed to the universal destination of human goods-–especially those essential to the preservation of human life. Perhaps we will eventually reach a point at which taxation of those at the top to provide for the care of those at the bottom truly threatens the well-being of our economy. But when “the increase in incomes of the top 1 percent of Americans from 2003 to 2005 exceed[s] the total income of the poorest 20 percent of Americans,” we’re a long way from that point on the Laffer Curve.