View from Washington: Day in Court

The Supreme Court, the Affordable Care Law, and Constitutional Federalism

John Adams referred to the Constitution as “the greatest single effort of national deliberation that the world has ever seen.” George Washington wrote to the Marquis de Lafayette that “It (the Constitution) appears to me, then, little short of a miracle.” Since Marberry vs. Madison, we the people have agreed to let the U.S. Supreme Court be the final arbiter of many great and weighty issues in dispute before our country. None more so than the upcoming examination of the conflicting lower court decisions regarding the Patient Protection Affordable Care Act, or as some call it Obamacare.

Some have argued that the Affordable Care Act, enacted in March 2010, represents the most massive transfer of power to the Executive branch of government that has ever occurred, or even been contemplated. Furthermore some argue, this law as enacted will affect major portions of the Constitution of the United States – these portions effectively destroyed – and the balance of power between the branches of government will have been unalterably shifted.

Therefore, the pending March 2012 U.S. Supreme Courts consideration of the constitutionality of the Affordable Care Act will be about many aspects of the still controversial law. My hope is that some fundamental questions will be addressed. Does Congress have the authority to legislate in most of the areas touched upon by the Affordable Care Act to begin with? Is there some limit on Congress’s power to regulate behavior in the name of regulating commerce? Does Congress have unfettered powers to place conditions on states receiving federal money? Where exactly in the U.S. Constitution is that illusive wording which provides a right to health care? Where is any authority granted to the members of Congress to regulate health care?

Most people will be focused during the 5 ½ hours of oral arguments the Supreme Court has set on one of the most volatile issues of the law, the individual mandate. This is the provision of the President’s signature legislative achievement which would regulate interstate commerce by punishing the “inactivity” of not buying health insurance.

Under the law if you decide not to have healthcare insurance, or if you have private insurance that is not deemed “acceptable” to the Executive branch of government, there will be a tax imposed on you. Believably, it is called a “tax” instead of a “fine” because of the intent to avoid application of the due process clause of the 5th Amendment to the Constitution. However, that doesn’t work for many legal experts since there is nothing in the law that allows you to contest or appeal the imposition of the tax. It is definitely depriving someone of property without the “due process of law.”

There are other issues waiting for the Supreme Court to be enlightened on by the Obama Administration and the opponents of the Affordable Care Act. The 9th Amendment to the Constitution provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people.” Under my reading of the Health Reform Law, neither the people nor the states are going to have any rights or powers in many areas that once were clearly under their control.

States’ concerns
One of the greatest concerns for states about the upcoming hearing before the Supreme Court deals with the enormous expansion of Medicaid under the Affordable Care Act. In 1965, Medicaid was initially designed as a federal/state “partnership” to provide healthcare services to the poor. Since then the program has grown, some say mutated, into 40 percent of all federal money going to states representing 7 percent of all federal spending. By 2020 the United States will be spending over $430 billion on Medicaid at a projected growth rate of 7.9 percent a year.

What states will be arguing about Medicaid before the Supreme Court will be the Affordable Care Acts’ requirement that states cover all persons with incomes up to 138 percent of the federal poverty level. In fairness, the Act does require the Federal government to cover most of the increased costs until 2016. By the end of this decade, states will be required to shoulder at least 10 percent of the costs of the expansion. With Medicaid, the current largest expenditure for most states, governors are justifiably worried about how they will come up with funding to meet the new requirements. Most importantly though is the nature of the Feds relation to state Medicaid expansions. The Obama Administration argues that getting the states to cooperate with the new law, is a matter of federal “coercion” not “compulsion.” However, if a state seeks to restrict pre-Act eligibility requirements for Medicaid recipients, all of their federal Medicaid funds could be denied. Sounds pretty compulsive to me!

States don’t want to deny poor people access to medical care. Also in reality, states cannot leave the Medicaid program given the importance of federal dollars. Which is more, if a state were to drop out, federal taxes collected in that state would simply go to support Medicaid spending in some other state? Is this situation fiscal bullying of the states? You bet it is. Back to that word “partnership” – maybe if the states felt that they had more control in the relationship to address what will inevitably be additional cutbacks in federal spending on Medicaid, they would be more willing to take a leap of faith. Based on a regrettable federal track record, this is not the case. That is why states will be arguing mightily before the Supreme Court this March.

Abraham Lincoln said in his first Inaugural Address – “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court …. The people will have ceased to be their own rulers, having to that extent practically resigned their Government, into the hands of that eminent tribunal.”

The Affordable Care Acts’ individual mandate and the federal compulsion of states related to Medicaid really are about the same issue. Is there any limit to the power of federal government to regulate interstate commerce? If the answer is no, then more than health care will be changed in the United States. Such a decision would profoundly alter federalism, one of the pillars upon which our constitution is based.