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Today’s decision: ‘We dodged a bullet’

Harold Pollack: President, Supreme Court, governmental bodies, millions of uninsured should breathe sigh of relief over decision

I have before me 193 pages of Supreme Court materials – the Roberts decision, along with other judges’ concurrences and dissents. Then there are the 1,841 tweets, 75 blog posts, and five screaming people on cable TV – few of whom seem to have carefully read the actual decision. I’ll try not to add to the cacophony. I do want to add some basic points.

1. We all dodged a bullet with this ruling.

Overturning the Affordable Care Act (ACA) would have deeply damaged President Obama’s reelection campaign. As Michael Tomasky noted this morning, a decision overturning the mandate would have been terrible for Obama’s political fortunes:

Part of readying myself for the opposite result included wondering how many times I could go without shooting the television as I watched Mitt Romney say words to this effect: “So now we know. The president, at a time when the economy was in the toilet, when unemployment was rising over 10 percent, devoted all his energy and all his political capital to a cause that we now know was a complete and total waste of the American people’s time.” Never mind the hypocrisy involved in the man who is the original political father of the mandate saying those words. It would have been a powerful argument to swing voters, and it would have hit Obama hard.

Overturning ACA would have created administrative chaos. Thousands of community health centers, state and local governments, and medical care organizations would have needed to unwind billions of dollars in pending contracts of all sorts.

Such a decision would have damaged the Supreme Court, too. Perhaps this was a key motivation for today’s decision. I confess that I had misjudged Justice Roberts. He showed himself, today, to be a conservative justice, but apparently not a crudely partisan or insurrectionist one. (Steven Teles tells this story well here.) Had Roberts spearheaded a 5-4 partisan decision to overturn the main domestic policy initiative of the Obama administration, this would have greatly damaged his own legacy.

And most important, overturning ACA would have snatched health insurance coverage away from 32 million people – many of whom would never have even known what was done to them. It would have removed health coverage from hundreds of thousands of people who have serious illnesses.

Thus, as I wrote in the New Republic this morning, it’s a huge relief that the court affirmed health reform.

2. It remains a disgrace that the case got this far.

Yet as I wrote there as well, this case has already done great damage, despite the benign ultimate legal result. As a matter of constitutional law, this case never made much sense. The fact that this dubious case ever reached the Supreme Court indicates how deeply our partisan polarization has penetrated the judiciary. The prolonged legal battle has slowed the implementation of state health insurance exchanges. It has confused the public. It’s wasted a lot of time and brainpower that both Republicans and Democrats might have better used to make the new law actually work. I’m relieved but hard-pressed to celebrate today’s decision.

3. It’s ‘put up or shut up’ time for many red states

Although the Court’s upholding of the mandate receives the most attention, this was not a complete liberal victory. The high court also imposed new limits on the federal government’s ability to withhold Medicaid funds as a bargaining chip to influence the states. The federal government can attach all sorts of strings to new programs tied to health reform. It cannot threaten to withdraw funds from a state’s traditional Medicaid program if that state refuses to implement the pillars of health reform.

No one quite understands the long-term implications here. Right now, though, states such as Texas or Arkansas must actually decide whether they actually want to expand Medicaid as envisioned under the new law. Noting the callousness displayed by some conservative governors towards uninsured or low-income residents of their own states, liberals worry that millions of people will be left uncovered. I am less worried. The federal government will pay essentially the entire tab for newly eligible Medicaid recipients under health reform.

States which choose not to expand Medicaid would leave tens of billions of dollars on the table to make a partisan point. I don’t see conservative politicians being able to say no this money, when thousands of hospitals, nursing homes, and medical providers in their state are desperate for these funds. Indeed today’s court ruling might puncture the hypocrisy of so many red-state politicians who angrily condemn the evils of activist government while quietly accepting huge federal subsidies financed by more-affluent blue states.

4. Wow, the 2012 election is important

Health reform survived on a 5-4 vote in the Supreme Court. President Romney and a Republican congressional majority might well repeal the new law, Nothing in today’s decision prevents them from doing so.

Then there is the court itself. Several contending justices – liberal and conservative – are well over 70 years old. Whoever wins in 2012 may well have the opportunity to appoint three new justices. So the future of health reform – and so much else – remains in the balance.

Harold Pollack is Helen Ross Professor of Social Service Administration, and Faculty Chair of the Center for Health Administration Studies at the University of Chicago. He has written about health policy for the Washington Post, New York Times, New Republic,  The Huffington Post and many other publications. His essay, “Lessons from an Emergency Room Nightmare,” was selected for The Best American Medical Writing, 2009. 

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