The Bad Part Of The Supreme Court’s ObamaCare Ruling And How Republicans May Use It To Screw The Needy

In my post on the health care law ruling yesterday I mentioned I would save for another day what I meant by this:

judging by this decision, I see only two consistent “liberals” on this court, Ginsburg and Sotomayor.

What I meant was their just refusal to join the other seven justices—including the usually sensible Steven Breyer and the ideologically suspect Obama appointee, Elena Kagan*—in ruling unconstitutional (it’s complicated, so see here) any attempt by the feds to terminate existing Medicaid money to states (almost all Republican-controlled states, of course) who might refuse to go along with the ACA’s expansion of Medicaid, an expansion that would enable millions of needy folks to get health insurance.

But, as usual, the needy just don’t have quite enough friends in powerful places.

For those who don’t know, Medicaid, created along with Medicare in 1965, is a federal-state effort designed to provide medical and health benefits to poorer folks, including children, who would otherwise go without all but emergency health care at hospitals. It is funded by both state and federal sources, the funding formula based on per capita income in the various states, with no state going without at least 50% federal funding (the average the feds pay is 57 percent).

The ability to withdraw all Medicaid funding, not just that associated with the expansion, was seen as a big stick in getting reluctant (red) states to do the right thing.  And the Supreme Court—again, including two justices appointed by Democrats—held that the federal government cannot coerce states or penalize them in such a manner, even if it is to do the right thing. Paul Clement, who argued the case for the bad guys, characterized this part of the decision as “really quite significant.”

Yes, it is. Here’s how USA Today summarized it:

The court struck down a portion of the law that would have forced states to accept a major expansion of Medicaid to all Americans earning up to $30,733 for a family of four or risk losing all federal funds under the program.

Roberts called that part of the Affordable Care Act “a gun to the head” by threatening as much as 10% of states’ budgets.

By removing the “gun to the head,” the Court has made it voluntary for the states to  provide expanded health insurance for its neediest citizens, to folks with incomes at 133 percent of the national poverty line.

And even though the federal government is picking up nearly all of the tab for the expansion, inevitably there will be Republican opposition, since that political party is long on hatred for Obama and short on love for the neediest among us.

Don’t believe me? How about this headline and story from the AP:

Top Mo. Republicans oppose Medicaid expansion

JEFFERSON CITY, Mo. (AP) – Top Missouri Republicans say they have no intention of expanding Medicaid eligibility as a result of the Supreme Court’s ruling on the federal health care law.

The story relates that Missouri House Majority Leader Tim Jones will not consider the expansion, and the stripper-lovin’ Lt. Gov. Peter Kinder falsely called it a “break-the-bank provision.”  Obviously, these unkind gentlemen don’t give a damn about the Missourians who would be helped, including doctors who treat patients who can’t pay, nor do they appear to give a damn about Missouri hospitals, most of whom have to absorb themselves or pass on to others the cost of uninsured patients they are required by law to treat.

Reportedly, the White House believes that all of the states will go for the expansion, since they all participate in Medicaid now with considerably less federal funding help than the new law provides.  But as a student of bullheaded Tea Party extremism, I can tell you that I suspect more than a few red states will opt out of providing more health services to those folks—many of whom are ongoing victims of Republican economics—who can’t afford them otherwise.


* I had my doubts about Kagan’s appointment two years ago; I was for Diane Wood as Obama’s pick to replace John Paul Stevens.

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  1. ansonburlingame

     /  June 29, 2012

    Well a 7-2 majority on the Medicade issue alone is a pretty significant majority. Are you calling that a politization of the Court?

    But of course there is a democratic way to resolve the issue. Congress could simply repeal the law for Medicade and replace it with a totally new law containing the benefits you call for. Now would you like to try to democratically use that approach?

    The simple fact of the matter related to Medicade is that the law, without the new ACA provisions, is too expensive for many states, not just “red” ones. Some states are even now considering abandoning any participation in Medicade for that reason alone, much less paying for MORE HC for the poor with ACA before the Court ruled it was unconstitutional to “bait and switch” the states into compliance with ACA.

    It is very constitutional for any government to provide HC funding for various groups of people. If that was not the case Medicare would have not passed constitutional muster. So Congress or state governments can vote to provide all the HC in the world that they decide to provide. BUT those various legislatures MUST find a way to pay for such HC as well, democratically.

    But on to a different point in the Court ruling, a point that you, Duane have not yet addressed. It is now UNCONSTITUTiONAL, based on the majority opinion to use the commerce clause to force citizens to purchase “stuff”, “stuff” they previously and individually decided not to purchase. Chief Justice Roberts I am sure made that “deal” with liberals on the Court in order to keep ACA standing in its entirety.

    Ginsberg and Sotomayor AGREED with the majority opinion, in its entirety and that is now the “law of the land” unless a future Court reverses that decision.

    Now go read Ginsbers “dissent” to her own “assent” to the majority opinon. I know that sounds convoluted and most of the readers herein will just get “confused” over such a view. But you Duane are smart enough to get the point I hope.

    The whole legal issue over ACA was the use of the commerce clause to justify paying for a new program. Congress did not have the political guts to call it a tax and they snookered Americans into that view to gain enough support to pass ACA. Well Chief Justice Roberts pulled that rug out from under such falacious reasoning.

    You Congress, refused to call a tax a tax. So I will do it for you and let your law stand based on MY reasoning, reasoning unaffected by political labels.

    Now Dems are confronted with a legal opinion, a constitutional legal opinion, that has created probably the most expensive and regressive tax every before loaded onto the backs of young and poor Amerericans.

    And in Nov 2012 those and other Americans will have the chance to democratically resolve that issue. To me that is a much better path to resolution of ACA, a democratic path, not a legal one up to only 9 Americans.

    I have long opposed ACA as you well know. Well now I get to really vote on that burning issue, as do you and all other voting Americans. However that vote turns out in 2012, I for sure will also accept that vote. If ACA stands after Nov 2012, well let it stand and we can all move on to other pressing matters, like how to not let the country go bankrupt!



  2. Duane,

    To me, the issue of healthcare, especially medicaid, presents another topic of concern: States Rights. I have not taken the time to read SCOTUS’s opinions on the ACA, much less read the bill itself, but what I see and hear is more federal unfunded mandates being dumped on state and local governments. Now, with states going broke all over the place, the odds of them expanding Medicaid is probably zero to none. The moral issues notwithstanding, neither the feds nor the states will want to be adding more IOU’s to an already overflowing pile of debt.

    We have been working under the delusion that the 10th amendment is still operative– “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That was adopted in 1791, along with the other constitutional protections of the Bill of Rights. But the 10th amendment became mortally wounded at Appomattox Courthouse in April of 1865. And it’s been bleeding out ever since.

    Beginning in the Great Depression and continuing up to the present day, the federal government has expanded way beyond what the Founders ever imagined. I’m quite sure that Madison, Hamilton, Washington, Jefferson, et al, would be totally flummoxed by what this nation has become over the last 200+ years. So, maybe it’s time to make the changes that better fit our current political philosophy, while at the same time, streamlining the government and thereby save a ton of money in the process.

    We are, in the bright light of day, a highly centralized, vertically integrated, plutocracy. As unpleasant as that may be to realize or accept, in the words of Uncle Remus, “It’s the truth, it’s actual, everything is satisfactual, Zip-a-dee-doo-dah, zip-a-dee-ay.”

    So, let’s get rid of the states and create about 10 federal regions based on population size. Just think of the savings that would be realized by eliminating all those states and their bureaucracies. Of course, there wouldn’t be any more Oklahoma-Texas football games. But, hell, what the hell. Anything for progress.



    • @ Herb,

      I agree with your assessment:

      We are, in the bright light of day, a highly centralized, vertically integrated, plutocracy.

      Both ideas are interesting: To get rid of the states or to restore full functions to the states while minimizing the role of the federal government. As you say, football interests aren’t going to let the former happen and we’re too far down the road for the latter, but someone ought to run computer simulations on those scenarios just for kicks. Maybe SIM City games already have – I hear they’re pretty good.


    • Herb,

      Obviously I am not a big fan of robust states’ rights, since our experiment with a strong federalism didn’t work too well for, say, black folks.

      Let me quote again the Tenth Amendment:

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      The problem with many states’ rights nuts is that they don’t understand that the first clause, “The powers not delegated to the United States by the Constitution,” has been interpreted indirectly via other rulings by the Supreme Court, rulings which severely limit the rights of states to, say, treat blacks as third-class citizens.  So, as I think Robert Bork pointed out a long time ago, the Tenth Amendment is rather hollow.

      Related to that, I disagree with your crystal ball, which you use to conclude that you are “quite sure” that Madison, Hamilton, Washington, and Jefferson “would be totally flummoxed by what this nation has become.” On the contrary, they might say,

      Goddammit! We did a helluva job! We knew the Constitution would stand up and Produce the world’s largest, most efficient Economy, along with ObamaCare and universal Health insurance!

      In any case, I don’t completely disagree with your assessment that ours is,

      a highly centralized, vertically integrated, plutocracy.

      I hesitate to go all the way with you because I think we have one more election to prove that thesis at least partially wrong. And don’t misunderstand me, even the election of Obama won’t prove it wrong. If Obama gets elected and the House and Senate are controlled by Republicans, and the state legislatures and governorships grow redder, it will confirm the thesis. Via Citizens United, the plutocracy will have essentially consolidated its power, even if it has to put up with Obama for another four years.

      As for your federal regions idea, I don’t oppose it, as long as I am allowed to relocate and given 40 acres and a mule somewhere in a blue state, preferably Hawaii.



  3. ansonburlingame

     /  July 1, 2012


    In writing, “….get rid of the states or to restore full functions to the states while minimizing the role of the federal government.” I think you summarized the basic argument between the Tea Party and the “left”.

    There can be little if any doubt what the Framers had in mind along those lines and they wrote the Constitution to give the federal government very limited powers and all other powers (within much broader limits) left to the States.

    Over time that “balance” between federal power and state authority has been erroded, significantly and it all started in our national reaction to the Great Depression. Since then more and more power has been delivered into federal hands.

    And guess what? The Supreme Court played a huge roll in allowing that to happend particularly with the “Warren Court”. There was eventually a natural political reaction to that approach to American government. The Renquist and now Roberts Courts have made some, but not a lot, of progress in at least LIMITING new powers to the federal government.

    But neither of those “conservative” majorities on the Court have done much of anything to reverse that which was already set in place by Court decisions.

    I doubt that even you or Duane would argue how the Framers tried to divide the power, Constitutionally, between States and the Federal government. However both of you want more federal power, it seems, and to hell with how individual States may decide what to do.

    For sure a way to achieve that is a wholesale rewrite of the Constitution to make really fundamental changes to Article One, Section Eight and other “allocation of powers” sections as well within the Constitution. But you know you would never achieve a 3/4 of the States voting FOR such a change to the Constituion.

    So by and large both sides demand the Court to make the changes desired by one side or the other related to abortion, HC, immigration, and probably a host of other lesser issues as well.

    Chief Justice Roberts went out on a huge limb to bend over as far as possible to allow Congress to legislate, constitutionally. Based on his reasoning in the opinion, I accept that call by the Chief Justice. HC IS a political issue and should remain as such, not a legal or constitutional issue.

    Let the people decide how to both provide HC but as well and most importantly, how to pay for such as well. ACA takes it right out of the pockets of at least 50 million young and poorer Americans to pay for some improvement in HC.

    My guess is those 50 million Americans “hate” that approach to paying for ACA. Personally, as the law now stands, you and I will not be affected. But if I had to cough up another few thousands of dollars each year with ACA, well, how would you feel about that on your now “fixed” income?

    At some point, probably after Nov 2012, Dems will be trying hard to change ACA to shift that cost burdent to the “rich” to pay for ACA or whatever comes next from progressives. I would do so if I was in support of ACA.

    The trick for the GOP however is to now repeal ACA BUT leave the “good” things entact. Frankly, I have no idea how to pull that one off, financially. But that is for future political debate.



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