Magazine article Foreign Affairs

Obamacare and the Court: Handing Health Policy Back to the People

Magazine article Foreign Affairs

Obamacare and the Court: Handing Health Policy Back to the People

Article excerpt

In the weeks and months before the U.S. Supreme Court delivered its ruling on the constitutionality of the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius, some pundits dubbed the lawsuit "the case of the century." Whatever the Court decided, commentators and activists on both sides of the aisle thought that it would resolve the fate of President Barack Obama's health-care reforms. The ruling would reverberate throughout the worlds of law and politics.

Instead, the Court surprised everyone. A five-member majority led by Chief Justice John Roberts upheld the ACA on grounds that few Court watchers had anticipated. The case may well find its way into the annals of the law. But in the end, Roberts' opinion removed the Court from the debate about health care and put the conversation back in the realm of politics.

BUYING THE BROCCOLI ARGUMENT

The debate over health care began when Obama promised to make health insurance affordable for all. To succeed, he needed to cut a deal with the health-care companies, which had long opposed such reform. In return for an expansion of the pool of insurance subscribers to cover their costs, the insurance companies agreed to neither deny coverage to those with preexisting conditions nor impose higher rates on them. To achieve this compromise, the Obama administration devised what would become known as the individual mandate: the government would require Americans to either purchase health insurance or pay a set amount to the U.S. Treasury. Republicans, opposed to such an expansion of government, fiercely resisted the bill in Congress and, once it passed, promised a full-scale campaign to overturn it. Within weeks of the bill's passage, Republican attorneys general in 26 states had launched a series of legal challenges to the legislation.

In court, opponents of the ACA presented two primary claims. First, they argued that the individual mandate exceeded the bounds of the commerce clause, the power given to Congress by the Constitution to regulate interstate commerce. The states also targeted the legality of the ACA's extension of Medicaid, a move that would cover many who were previously uninsured and deny existing Medicaid funding to states that did not comply.

Initially, few in the mainstream legal community took either claim seriously. And with good reason: neither had strong support in existing judicial precedent or practice. Since the New Deal, the Supreme Court has given Congress vast authority to regulate commerce. In 1942, the Court unanimously held in Wickard v. Filburn that Congress could forbid a farmer from growing wheat on his farm for his own consumption. Congress had set out to stabilize wheat prices, and if all farmers began growing their own wheat instead of buying it, the justices reasoned, then demand would drop and so would prices. The Court thus recognized that even the most local economic decisions could affect integrated interstate markets, and it empowered Congress to regulate them.

Given the logic of Wickard v. Filburn, the ACA seemed well within the bounds of Congress' powers. Under the existing law prior to the ACA, those who could not afford medical care ended up receiving it at emergency rooms for free. The costs were then passed onto everyone else in the form of higher insurance premiums. According to a study by the Henry J. Kaiser Family Foundation, in 2008, federal and state governments paid $43 billion to health-care providers to cover the uninsured. Many experts agreed that skyrocketing health-care costs were damaging the U.S. economy. Like the farmer's decision to opt out of the interstate market for wheat, the failure of millions to obtain health insurance was harming the interstate health-care market.

The ability of Congress to attach conditions to federal spending grants, such as Medicaid, seemed similarly invincible. As much as the Supreme Court has recognized the expansive power of Congress to regulate commerce, it has granted the legislative branch even more leeway to tax and spend on behalf of what the Constitution refers to as "the general welfare. …

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