When the Supreme Court does decide a question, there are always dissenting opinions, sometimes very divisive ones. Historians think the Dred Scott Decision of 1857 was a significant factor leading to the Civil War, after the court ruled people of African descent were not citizens. Many evangelicals believe the Roe v. Wade Decision of 1973 legalizing abortion on demand led to divine judgment on our nation. The Kelo case of 2005, which green lighted the use of eminent domain powers for the purpose of increasing tax revenue, was so repulsive to so many Americans that 42 states enacted laws to inhibit the practice within their borders.
Last week's questions focused on whether the federal government has constitutional authority to require individuals to purchase health insurance, and whether it can require state governments to accept new guidelines that would allow a sizeable increase in the number of low-income people who will qualify for taxpayer-funded health insurance under Medicaid.
Is it constitutional for the federal government to require an individual to purchase a commercial product? Justice Anthony Kennedy, seen as the swing vote on the question, asked the government's attorney if he didn't have a "heavy burden of justification to show authorization under the Constitution to do so."
That is the key question in that part of the hearings. If the government does have that authority, what's next?
Part of that question hinges on the penalty (tax) for not purchasing insurance, and whether the Court can decide the question before anyone has been penalized (taxed) for non-compliance. Under the law, no one would be penalized until 2015.The Court could simply kick the can down the road and leave the question of the individual mandate unsettled until someone challenges being penalized.
As the law stands the Medicaid mandate will require each state to open the program to anyone in a household with earnings of 133 percent of the poverty threshold or less, beginning in 2014, or else lose all of the federal funding the state now receives for the Medicaid program – that varies from 50-80 percent of each state's Medicaid budget. State participation in Medicaid is said to be voluntary, but with strings attached — and no state is likely to either abandon the program or attempt to fund it on its own.
In Alabama, according to the State Comptroller's 2010 Comprehensive Annual Financial Report (the latest year available), 33 percent of the state's spending was for health, compared to 34 percent for education. Out of that 33 percent, 82 percent went for the state's Medicaid program. That's 27 percent of the state's total budget for that fiscal year — most of it funded with federal dollars.
Under the new law, not only would that amount grow, but federal funding for the newly qualified beneficiaries would decline over time, forcing the states to increase funding to make up the difference.
The question is whether the federal government can force the states to accept the broader qualifications for Medicaid.
Laws usually include severability clauses, so that if one part of the law is found unconstitutional, the rest of the law will stand. Somehow, in the 2,700 pages of this bill, no severability clause was included.
The Court may have to decide to either let the entire law stand or declare the whole thing unconstitutional.
We won't know until June what the Court decides.
And if the Republican nominee wins the general election in November, it could be a moot point, anyway, with the rhetoric of repealing Obamacare high on the GOP agenda.
What we haven't heard from the GOP is a better solution to dealing with increasing financial pressure on middle and lower income families with regard to the cost of health insurance or anything else except taxes — and lowering taxes helps the rich more than anyone else.
Like any law, this one has its flaws, and its rush to passage before anyone had time to study it was an insult to the American people and a violation Candidate Obama's promise for more open government.
This law isn't perfect, but it is at least an attempt to find a solution to the problems of availability, portability and affordability of health insurance in our nation — something we didn't see from the Republicans when they held the White House, the Senate and the House for six years under President George W. Bush.
President Obama has been called a socialist for this proposal — the same thing the American Medical Association called President Harry Truman in 1945, when he proposed federal action to improve health care services throughout the nation. There's been plenty of time to come up with a better plan.
Simply getting rid of this law is not a plan.
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