11:01pm

Sun March 25, 2012
Shots - Health Blog

4 Questions That Could Make Or Break The Health Care Law

It's the hottest ticket in Washington, D.C. Even the flossiest lawyers in town can't get a seat. Senators, congressmen, Cabinet and White House officials are all vying for a place.

At the U.S. Supreme Court, people have been lining up for days, waiting to hear this week's historic oral arguments on President Obama's health care law. The arguments will last for six hours over a three-day period, the longest argument in more than 40 years.

The court has boiled the arguments down into four questions. The first and threshold question is Monday, when the justices must decide whether an 1867 law called the Tax Anti-Injunction Act prevents the court from even considering this bill right now.

The theory of the law is that the U.S. could not have an effective tax system if every time somebody thought a tax provision was unconstitutional, he could just refuse to pay until a court makes a ruling. Thus, the Anti-Injunction Act requires people to pay the tax and then challenge it.

Under the health care law, the penalty for not having health insurance, which is paid to the IRS, doesn't kick in until 2015, so the argument is that there is no case because nobody has paid the penalty or suffered any financial injury yet.

Assuming the Supreme Court rules that there can be an immediate challenge to the law, the big issue, the central controversy, is the so-called individual mandate.

It requires everyone to have health insurance, in order to spread the risk and pay for the things everyone wants in this bill — namely, affordable coverage for everyone, with no discrimination based on previous medical conditions, and a requirement that insurance companies generally charge people in the same age groups the same rates.

Those challenging the law argue that this is the first time the federal government has required people to buy something they may not want, and that the government simply doesn't have that much power. The government counters that everyone consumes health care and that the only question is when.

There is no way to plan when somebody gets sick or gets hit by a bus, the government argues, and therefore the people who get medical care without insurance coverage are forcing everybody else — taxpayers and those who do have insurance — to pick up the tab.

If the mandate is struck down, the third question asks whether all of the other provisions in the law should fall, or, if not, which parts of it can remain standing. Even the government concedes that the way the insurance business works, if everybody doesn't buy in, the insurance companies can't possibly afford to cover people with pre-existing health conditions at the same price as healthy people.

Thus, even the administration concedes that if the mandate is found to be unconstitutional, the pre-existing conditions provision, which is the most popular piece of the law, would have to go, too.The opponents of the law go further, contending that all the provisions of the act are so inextricably intertwined, that it would all have to be invalidated.

The final question asks whether the Medicaid expansion in the health care law unconstitutionally coerces states into participating in the program. Medicaid is a joint federal-state program in which the states pay up to 50 percent of the costs to care for the poor and disabled. States can opt out, but so far, none has done so.

The Medicaid expansion under the Obama health care law would cover many more poor people — not just children, pregnant women, the disabled and the like. The federal government is paying all the costs of the expansion for the first three years, but then the states will pay up to 10 percent by the end of the decade. The catch is that the states can't opt out of the expansion only — it is take it or leave it for the whole program.

The states contend that such a condition is unconstitutional coercion, but so far, no court has bought that argument.

In addition to the legal arguments, there are also a number of political issues. When President Obama was running for office, he originally opposed having a mandate in his health care plan and criticized the one in Hillary Clinton's.

As president, he was eventually convinced that it was the only way to fund a workable plan for nearly universal coverage. That, in turn, was the only way to begin to get a handle on health care spending because it was impossible to ratchet down spending without everyone in the pool.

The political problem has been with the messaging. Many people still don't understand that in 2014, they aren't going to have to drop the employer coverage they have now and go out and buy a new policy. Additionally, a lot of people think it's just wrong for the government to require a person to buy a commercial product.

The irony is that opposition to the law mainly comes from Republicans, and the individual mandate idea was originally conceived by Republicans in the 1990s.

No matter what the court does, it's going to have an impact on the November elections. If the court strikes down any or all of the law, it will be negating Obama's top domestic achievement and will hardly make him look like a strong leader. If the court upholds the law, however, it will energize the Republican and Tea Party members even more for the November election.

Given everything at stake in the case, it's impossible to make an accurate prediction on how the court will decide. The court's four more liberal members all have pretty clear track records supporting broad congressional authority to regulate a major part of the national economy, and health care represents about one-sixth of the U.S. economy.

But to win, the government will have to convince one of the conservative justices. Justice Antonin Scalia, one of the court's most conservative members, has written approvingly of the federal government's need to regulate broadly in a national market, but he has also said Congress cannot use any means it wants to achieve its goals.

Justice Anthony Kennedy, usually the swing vote in a 5-4 decision, has a soft spot in his heart for federalism, by which he means the limits of federal power and respect for state sovereignty. Many court observers have not written off Justice Samuel Alito, either.

And finally, there is considerable speculation that Chief Justice John Roberts, acting in his institutional leadership position, would be a sixth vote to uphold the law if there are five votes supporting it.

After the arguments this week, it might be easier to get a better fix on which way the wind is blowing.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

DAVID GREENE, HOST:

This is MORNING EDITION from NPR News. Good morning, I'm David Greene.

Well, this is it. At the Supreme Court, people have been lining up for days for a chance to hear this week's historic oral arguments that could decide the fate of President Obama's landmark health care law. The arguments getting underway this morning will last for six hours over a three-day period. The High Court hasn't devoted that much time to arguments in a single case in more than 40 years.

Joining us in the studio, not for six hours, are NPR legal affairs correspondent Nina Totenberg, and NPR health policy correspondent Julie Rovner; really, the best team in the business on this story.

Good morning, to you both.

JULIE ROVNER, BYLINE: Good morning.

NINA TOTENBERG, BYLINE: Good morning.

GREENE: So we're going to take a look at what's going to happen in the next few days from the issues, to the pitfalls, to the politics. So let's start with you, Nina. How is this all going to unfold the next few days at the court?

TOTENBERG: The court has boiled this down into four questions. The first, and threshold question is today, and, frankly, it's the most boring and arcane.

(SOUNDBITE OF LAUGHTER)

GREENE: Well, you're going to make it anything but for us.

TOTENBERG: Yeah, we hope so. The question is whether the 1867 law, called the Tax Anti-Injunction Act, prevents the court from even considering this bill right now.

GREENE: OK. Well, tell us about that old law.

TOTENBERG: Well, basically, the theory of that law is that we couldn't have an effective tax system if every time someone thought a tax provision is unconstitutional, they could just refuse to pay until a court rules. So the law requires you to pay the tax and then challenge it. But under the health care law, the penalty for not having health insurance, which is paid to the IRS, doesn't kick in until 2015. So the argument is that since nobody's been hurt yet, nobody has had to pay the tax, there's no case.

Of course, the central controversy is the so-called individual mandate.

GREENE: Individual mandate, I mean that's a term we've heard so much - I mean during the debate over this law once it was passed. And let me go to you, Julie. Just remind us what this individual mandate means.

ROVNER: The idea behind individual mandate is to basically get almost everybody to have health insurance coverage. If you have health insurance from your employer, in most cases that will satisfy the individual mandate. If you don't have health insurance, you're going to be required to buy it. And if you don't have enough money, there will be very generous subsidies.

But for everybody to have insurance, that will allow another requirement for insurers to sell to people with preexisting health conditions, which is a very, very popular part of this law.

GREENE: Well, getting everyone covered, I mean that's such an important premise of this law. And I'm wondering, Nina, what the legal debate is over that.

TOTENBERG: Well, those challenging the law say this is the first time that the federal government has required people to buy a commercial product that they may now want, and the government simply doesn't have that much power. The government counters that everyone is a health care consumer; that there is no way to plan when you get sick or get hit by a bus. And that if you don't have insurance coverage, you're essentially a freeloader, with everyone else - the taxpayers and those who do have insurance - picking up the tab.

GREENE: Before we get to the other questions that the court is going to be covering, Julie, let's just talk about the politics of individual mandate. I mean, it's been coming up on the campaign trail this election year quite a bit.

ROVNER: Originally this was a Republican idea. Back in the early 1990s when Democrats were pushing the idea of an employer mandate, requiring employers to provide everybody with health insurance coverage. It was Hillary Clinton, in the 2008 campaign, who wanted an individual mandate. And candidate Obama was worried that there would be a backlash to this.

But he was later prevailed upon to realize that this was basically the best way to get everybody into the insurance pool, and make it easier to then start to bring down health care costs.

GREENE: So, Julie, just remind us. Why was candidate Obama sort of reluctant at first to sign on to this idea of an individual mandate?

ROVNER: I think candidate Obama was worried about the very backlash that we are seeing now. People did not want to be required to buy something that they may not want. But I think a lot of people also don't understand that with that comes this also very popular thing, which is making sure that an insurance companies have to sell to people with preexisting conditions.

But, of course, unless you have those healthy people in the insurance pool, then people can wait until they get sick to buy coverage, which would make premiums prohibitively expensive. So those two things have to go hand-in-hand.

GREENE: All right, Nina, let's get to the third and fourth questions that the court will be taking this week.

TOTENBERG: Well, the third question asks whether the Medicaid expansion, provided for under the law, unconstitutionally coerces states into participating in the program. So, Medicaid is a joint federal-state program in which the states pay, in some cases, up to 50 percent of the costs to care for poor and disabled people. And they can opt out. But, or course, so far, none of the states have done that.

The Medicaid expansion under the Obama health care law covers many more people. The federal government pays all the costs for the first three years, with the states paying up to 10 per cent by the end of the decade. The catch is that the states can still opt out. But they can't opt out of just that part. It's really a take it or leave it situation. And the states contend that is unconstitutional coercion. So far, no court has bought that argument.

And finally, the last question, is whether if the mandate is struck down, all the other provisions of the law fall. And if not, which parts of it remains standing?

GREENE: Well, if the court decides to strike down the idea of individual mandate, what does that mean for the rest of the law, Julie?

ROVNER: Well, the administration is arguing that there are things that are inextricably linked to the individual mandate. One of them, as we've said, is this question of whether insurance companies have to cover people with preexisting conditions. If the mandate goes, and therefore people don't have to buy insurance, then people could wait until their sick to get coverage. That would drive insurance premiums way high, 'cause only the sick people would have insurance.

GREENE: You wouldn't have healthy people covered.

ROVNER: Exactly.

TOTENBERG: There's no money.

ROVNER: You wouldn't have enough healthy people covered to spread the risk, and so therefore, the insurers would have a real problem on their hands. So basically, what they're saying is that if the mandates goes, so therefore the requirement for preexisting condition coverage would have to go with it.

GREENE: Well, Nina, this is a big test for the court, led by John Roberts. How do you see this all playing out inside the courtroom?

(SOUNDBITE OF LAUGHTER)

TOTENBERG: Well, I don't make predictions. Presumably, the courts four more liberal members all have a pretty clear track record supporting broad congressional authority to regulate a major part of the national economy, and health care represents about a sixth of the U.S. economy and they'll vote to uphold it. But to win, the government will have to get one of the conservative justices in addition.

And here are the votes arguably in play: Justice Scalia, one of the court's most conservative justices has written approvingly of the federal government's need to regulate broadly in a national market, but he's also said that the federal government can't use any means that it wants to achieve those goals.

Justice Kennedy usually the swing vote in a five-to-four decision has a soft spot in his heart for federalism, by which he means the limits of federal power and respect for state power. And some people think that Justice Alito is also in play.

Finally, the chief justice, John Roberts, is potentially a get for those supporting the law. Once we hear the arguments I think we might get a better fix on which way the wind is blowing.

GREENE: Nina, I mean this is such a politically-charged case, especially during an election year. I mean, do you remember a case that's comparable in any time in recent memory?

TOTENBERG: Well, the only thing similar I could say was Bush vs. Gore, but I would have to say that that was much more politically charged. After all, the fate of the presidential election hung in the balance, and that's really quite different from that.

GREENE: There'll certainly be an impact on this presidential election, if not hanging in the balance. I mean, Julie, talk about the political backdrop and how this has an effect on the campaign.

ROVNER: You know, if the court upholds the law, then it's going to really energize the opponents of the laws, the Republicans who'd like to see it repealed. And then they'll know that the only way they can get it repealed is to elect a Republican president and a Republican Congress. On the other hand, if they strike down the mandate, then you have the president, you know, losing the central part of his biggest domestic achievement.

So either way it's going to be a challenge for President Obama going into the, you know, the major part of the presidential election.

GREENE: That's NPR's health policy correspondent Julie Rovner. Thanks so much, Julie.

ROVNER: Thank you.

TOTENBERG: And NPR's legal affairs correspondent Nina Totenberg. Good to be with you.

Thank you. Transcript provided by NPR, Copyright National Public Radio.