Sound Off

06.28.12

The Supreme Court Ruling on Obamacare: 16 Experts Weigh in

It’s the end of liberty! It’s the beginning of freedom! Either way you slice it, the court’s ruling on Thursday was momentous.

I Knew It!
Donna Shalala: Health and Human Services Secretary (1993-2001) 
and University of Miami president

“I expected it. I actually told my students at the end of the semester that I thought the Supreme Court would uphold the individual mandate and the rest of the provisions because it was carefully drafted in consultation with constitutional lawyers. I also had some confidence that Chief Justice John Roberts would not play politics on this one. I think we’ll be able to say to Americans, the president will be able to say, this helps you, if you have insurance or if you don’t have insurance. For the first time we can explain the cost shifting. Those who have health insurance will no longer, as this is implemented, be paying for those who don’t have health insurance.

Every stakeholder wins in this decision. More importantly, we can now move on to some very important issues in health care, like the cost of health care, the efficiency of the system, getting rid of fraud in the system. I think it forces the Republicans to say if they’re going to get rid of this what they’re going to substitute for it. And it lets the president have his staff focus on the other issues in health care.”

Good for You, America
Jon Gruber: MIT professor and adviser on Romney and Obama health reform

“The decision by the Supreme Court to uphold the mandate by a 5-4 vote is a victory for the health and financial security of Americans. With the mandate in place we can move forward on the key insurance-reform provisions that ensure that America will no longer be a country where individuals can be excluded from health-insurance coverage because they are, have been, or will be ill. This decision allows the Affordable Care Act to move forward to provide insurance coverage to more than 30 million Americans, to control the costs and improve the quality of U.S. health care, and to lower the budget deficit. Congratulations to the tens of millions of uninsured Americans, the tens of millions more who face the risk of becoming uninsured, and the hundreds of millions who will ultimately benefit from a less expensive and higher quality health-care system.”

Oh Great, More Taxes
S.E.Cupp: New York Daily News columnist and
 MSNBC Host

“The Supreme Court just gave its imprimatur to a bill that only 26% of Americans wanted upheld, according to a recent Washington Post/ABC News poll. In addition to the 42% who wanted the entire law tossed out, a whopping 67% opposed the signature piece of President Obama's Affordable Care Act, the individual mandate. This is all perfectly within the court's purview, of course, and if anything, it's clear that the Supreme Court is not as easily influenced by politics or popular opinion as Democrats preemptively insisted it would be. But it's certainly a surprising verdict.

As for spin, it's inarguably great news for the president and his reelection campaign and bad news for Republicans and Mitt Romney, who will try to argue that this decision will only fire up the conservative base. It will, in the short term, but when Romney pivots off health care (which will happen sooner than later) it's hard to say whether this ruling alone will carry energetic support through November.

But the real meat of this decision, I think, has to do with the court's finding that the individual mandate is, in fact, a tax. Of course, that's the opposite of what Obama's been insisting for the past two years. In a 2009 interview with George Stephanopoulos, the president complained, ‘My critics say everything is a tax increase ... I absolutely reject that notion.’ Republicans can at least find some solace in the news that the Supreme Court just validated what they've been saying all along. The individual mandate is a $2.6 trillion tax hike.”

Tax, Shmax
I. Glenn Cohen: Harvard Law School professor and
 codirector of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

"This is a big win for the Obama administration. They would have preferred to have the act to be upheld as an exercise of the Commerce Clause or Necessary and Proper Clause congressional power rather than the Taxing Power, because that would have avoided arming the Romney campaign to say things like, "the president said it wasn't a tax, but he lied to you as the Supreme Court realized," and, "in the middle of this terrible economy, rather than focusing on jobs, the president pressed upon people a health-care tax." Still, even that political reality is much better for them than having the mandate or other parts of the bill struck down.

“On the Medicaid expansion issue, the court upheld it with a caveat. In my view, this small cutback on the president's power will not prove that consequential. The terms that Congress offered states to expand their Medicaid in the short term are good enough that most states will do so. A few states may have Republican governors who for political reasons will want to resist (to claim they are not being pushed around by the federal government, not squandering tax dollars, not socialists), and now they can do so without the threat of losing all Medicaid funding. Still, all in all, the president and his lawyers had a very good day."

‘A Breakthrough of Sunshine’
Rev. Al Sharpton:
 MSNBC Host

"The Supreme Court decision upholding President Obama's Affordable Care Act is a breakthrough of sunshine in a long dark night of right-wing assaults on the American middle and working class. After being bombarded with divisiveness and extremist politics it is refreshing that the courts took a step towards not interfering with the health care of American people that is sadly in jeopardy."

The Court Ignored the Constitution
Ilya Shapiro:
 Senior Fellow in Constitutional Studies
 at the Cato Institute

“Nobody expected this. I think anybody who was pre-gaming different versions of reactions yesterday—I don’t think those served anybody well today.

They sold this as a new type of regulation. Fundamentally, as Justice Kennedy said, structure means limits, and in rewriting the measure to interpret it as constitutional, the court ignored the fundamental precepts of how the Constitution protects our freedoms.

I saw that Mitt Romney has already come out saying that he would repeal Obamacare, and I think this will energize voters who don’t like the act, especially the individual mandate. I don’t think it will help Obama in the long term. It’s not a vindication of his vision. As the court says, he instituted a tax when he said he wouldn’t. He said this is not a tax and that this was a regulation and we’re all in the health-care market together.

[Republicans] are going to make a critique of the ruling that this is why you need to elect people who understand the limits of the Constitution. The Court went out on a limb and tried to devise its own legislation to make it try to fit into the Constitution.”

Obama Not Out of the Woods
Einer Elhauge: Harvard Law School
 professor and director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

“The Supreme Court decision upholding Obamacare as a tax is a triumph of substance over formalism. A major flaw in the challengers’ position all along was that, even if you bought their argument, Congress could impose precisely a mandate with precisely the same financial effects if it called the mandate a tax. It could also impose a broccoli mandate if it called it a broccoli tax. The challenger argument hinged on the claim that this functional identity did not matter because it was called a mandate rather than a tax. The court held—I think quite sensibly—that the issue turned on substance rather than linguistics.

The implications for Obama’s reelection campaign are positive but mixed. The fact that the court upheld Obamacare will help because it undermines the Republican claim that it is unconstitutional and moots the argument, which they were hoping to make, that Obama had erred by spending so much time on something that ended up having no effect. It also gives him a significant accomplishment to campaign on. On the other hand, the way the Court ruled gave the Republicans the talking point that Obamacare imposed a new tax.”

It’s Still the Economy, Stupid
Drew Altman:
 President, Henry J. Kaiser Foundation

“The Supreme Court’s decision on Obamacare is not likely to be a political game changer. The ruling may rev up the conservative base, who will continue to call for the law’s repeal. But a ruling from a conservative-leaning Supreme Court that the law is constitutional also legitimizes it, weakens critics’ arguments, and could move some independent voters in the president’s direction. Opinions on the law are dug in along partisan lines and have not changed since the law’s passage. The decision will reinforce views more than change them. The overwhelming issue in the election is the economy, not health care. This is not a health-reform election.

After the election, Washington will change the channel, focusing on the budget deficit and health care's big entitlement programs, Medicare and Medicaid. Debate will shift from Obamacare and expanding the role of the federal government, a debate that energizes the right, to cutting back the largest government programs, a debate that could energize the left. Medicare is likely to trump the ACA as health care's big issue in 2013.”

The GOP Won’t Take This Lying Down
Jim Dean: Chair, Democracy for America

“We are pleased that the individual mandate and most of the Affordable Care Act has been upheld by the Supreme Court. We fully expect the Republicans in Congress and their presidential nominee to double down their efforts on repealing the Affordable Care Act. What's worse is that Republicans will push their health-care plan of taxpayer supported vouchers and subsidies as a valid alternative to the ACA. It's not. The voucher plan is wrong for America and a vast majority of Americans believe it's the wrong direction for them. We are better than this. Democracy for America will work hard to make sure that the voters understand the choice between the candidates who have fought for health care for all Americans and those who fight for the voucher program.

The fall-out from the court's ruling on ACA is going to make the election choices in November far clearer. ACA continues to give millions of Americans access to health insurance, community health care, and at least a small measure of consumer pricing power when making health-care choices.”

A Win for Patients
Dr. Jeremy A. Lazarus
: President, American Medical Association


“This decision protects important improvements, such as ending coverage denials due to pre-existing conditions and lifetime caps on insurance, and allowing the 2.5 million young adults up to age 26 who gained coverage under the law to stay on their parents' health insurance policies. The expanded health care coverage upheld by the Supreme Court will allow patients to see their doctors earlier rather than waiting for treatment until they are sicker and care is more expensive. The decision upholds funding for important research on the effectiveness of drugs and treatments and protects expanded coverage for prevention and wellness care, which has already benefited about 54 million Americans.

The health-reform law upheld by the Supreme Court simplifies administrative burdens, including streamlining insurance claims, so physicians and their staff can spend more time with patients and less time on paperwork. It protects those in the Medicare ‘donut hole,’ including the 5.1 million Medicare patients who saved significantly on prescription drugs in 2010 and 2011. These important changes have been made while maintaining our American system with both private and public insurers.”

The Ball’s in Your Court
Jill Lepore:
 Harvard University
 professor and contributing writer at The New Yorker

“In a 5-4 opinion written by Chief Justice Roberts, the Supreme Court today ruled that ‘The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.  Such legislation is within Congress’s power to tax.’

In a centuries-long debate about the power of Congress to regulate the economy, this ruling treads a middle ground: upholding a landmark piece of legislation while rejecting the government’s argument that the individual mandate is covered by the Commerce Clause. (Ginsburg, in a concurring opinion, argued that the Commerce Clause does cover the individual mandate, while, in their dissent, four justices argued that it does not and disagreed, too, that it can be construed as a tax.) The majority opinion is remarkable for its restraint, which Roberts took pains to underscore. ‘Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments,’ the chief justice wrote. ‘Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.’ All of which is to say: this ball now returns to the court of electoral politics.”

A Huge Relief to Women
Terry O’Neill:
 President, National Organization for Women

“I think it’s a very good ruling. I think it’s a very good outcome. I think that the Affordable Care Act, its most important achievement is that it establishes in law that this country stands for the proposition that all of our people should have affordable comprehensive quality health care and that’s the principle that I think is established by the ACA. A lot of people will tell you that it’s an imperfect law and I’m one of them.
Our organization has for many, many years supported a single-payer system. We think that’s the most efficient, cost-effective way to deliver health care for everyone. And the ACA isn’t that.

I think that upholding this law is going to have the impact of people looking past the hyperbole of the folks who opposed the law and really looking at the law and looking at what they’re getting. Kids if they’re up to 26 and out of college are still allowed to stay on their parents’ plan, which is a huge relief to women.

I think it will translate into confidence that [Obama] did do the right thing. It was tough. It was a controversial bill. Many presidents have tried to get a comprehensive health- care law bill through. He did it. He pulled people together. He got the insurance companies on board. He did all this work, and it did in fact survive judicial scrutiny.

I think the president obviously looks very good on this. Frankly I think Minority Leader Pelosi looks amazing. She almost single-handedly was the one who pushed it across. And, may I say, she’s female. Also, the three female Justices were key to upholding this law.”

Only One Choice: Repeal
Robert Alt: Senior Legal Fellow and Deputy Director of the Center for Legal and Judicial Studies at The Heritage Foundation and Nina Owcharenko: Director of Heritage’s Center for Health Policy Studies.

“The Supreme Court’s decision to uphold Obamacare reflects a tragic misreading of the law, one which could cost us not just economically, but also in terms of liberty.

On the bright side, the Court recognized that there are limits to what Congress may do under the Commerce Clause. But this was the silver lining of a dark cloud. The Court fundamentally misread Obamacare, contorting to find another authority—the power to tax—for Congress to enact the law.

The effects of the decision will be felt far beyond Obamacare. By allowing government to require Americans to buy a product or service at the federal government’s direction, the Court has seriously damaged the principle of limited government. The decision could open the door to even more dictates from Washington. Anyone who doubts this need only read the Court’s suggestion that Congress could force Americans to buy energy efficient windows or pay a tax.

The American people don’t support Obamacare and fear its consequences more every day. Just this month a new poll conducted by The New York Times and CBS News showed that more than two thirds of Americans wanted to see the Supreme Court strike down Obamacare in whole or in part. Only 24 percent would keep the law in place.

Thankfully, the duty to defend the Constitution is not given solely to the Supreme Court. It is shared by Congress and the president. It is now Congress’ turn to do what’s right, both for the Constitution and policy reasons: repeal Obamacare.”

A Lose-Lose
Josh Archambault: Director of health care policy at Pioneer Institute, a Boston-based think tank, and editor of The Great Experiment: The States, The Feds, and Your Health Care.

“Today’s ruling does very little to close the book on health care reform. In fact, it opens a can of worms that will highlight the growing struggle between states and the federal government on implementation.

Politically, President Obama may get an initial bump in the polls, but the Administration has already lauded the cotton candy provisions from the law (like 26-year olds staying on their parent’s insurance and provisions related to pre-existing conditions). The challenge for them is many of the fish oil provisions, such as Medicare cuts, $500 billion in new taxes, and expensive subsidies yet to kick-in.  This will be a lose-lose situation for everyone.

This issue just got more complex, as I anticipate many Republican Governors to balk on implementation, and Congress will try to starve the law of funding. We have also not seen the last lawsuit on this matter. IPAB, anyone?

In essence, this decision was made by a single justice. It clearly highlights the need for real solutions that can gain broad consensus across the country.

Many unintended consequences arise when Washington tries to design a policy that meets the diverse needs of states such as Massachusetts and, say, New Mexico. Specific federal actions are needed to increase access to affordable health care, but the PPACA goes too far.”

It’s a Free-For-All
Ryan Ellis: Tax Policy Director, Americans for Tax Reform

“The Supreme Court’s decision today means that Obamacare is not only a law involving healthcare—it’s also a law intimately involved with tax policy.

Americans for Tax Reform has pointed out for years that this law contains no fewer than twenty new or higher taxes on families and small employers. This has always included the excise tax penalty for non-compliance with the individual mandate. So we were not surprised by that aspect of the Court’s ruling.

What is surprising is that the Court seems to be saying that Congress can mandate anything to anyone, and it’s constitutional—provided, of course, that there is a tax penalty for non-compliance. If that’s the case (and it seems to be based on a first read of the majority opinion), that means that Congress essentially has no checks on its regulatory compulsion authority.

It also means, however, that taxpayers have a simple way to prevent anything like the Obamacare mandate from being SCOTUS-compliantly imposed again—prevent new tax hikes. If the Taxpayer Protection Pledge which has been signed by nearly all Republican Congressmen and Senators is kept, there will be no tax increases. And a tax increase is the only path the Court left today to enact costly new mandates.

So the message is clear: no new taxes means no new mandates. Now it’s up to the American people to repeal the mandates and taxes we’ve been saddled with by Obamacare.”