“THE federal health-care law is dead,” exulted John Van Hollen, Wisconsin’s attorney-general. It was killed off, in his view, on January 31st, when a judge in Florida found one of its main provisions unconstitutional and threw the whole law out. In fact, its injuries may not be as terminal as Mr Van Hollen implies. Judges in other courts have upheld it, the federal government has vowed to appeal the Florida ruling, and Congress may yet amend the law anyway. But the sweeping judgment will disrupt the implementation of the health reforms that are the main achievement of Barack Obama’s presidency. That in turn will keep the subject, which has dominated American political life for the past two years and contributed to the Democrats’ dire showing in November’s election, in the public eye—much to the Republicans’ delight.
The ruling marks the federal courts’ fourth tilt at the health-care law. Two other judges, in Michigan and Virginia, have given it their blessing; a third, also in Virginia, faulted the same provision as the one in Florida—the “individual mandate”, which obliges everyone to obtain health insurance—but voided only that part, leaving the rest intact. Roger Vinson, the judge in Florida, went much further. Not only is the individual mandate unconstitutional, he reasons, but it is also too integral a part of the law to be excised, so the whole 2000-page tome must be scrapped. Moreover he said that his ruling should have immediate effect, thereby relieving the 26 states that had joined the lawsuit of their obligation to implement the law.
Some of those states, including Wisconsin, have already indicated that they will stop work on the law. Florida has written to the Department of Health and Human Services (HHS), which oversees the law, to say it no longer needs a $1m grant to help set up the necessary bureaucracy. Others, such as Georgia, have suggested that they will continue to follow the law until its constitutionality is settled once and for all. In any case, the states’ main responsibilities under the law—to set up exchanges where residents can buy insurance and to expand health-care provision for the poor—do not begin until 2014.
There is one area where the ruling could have an immediate effect, however. The law bars states from tightening their eligibility requirements for Medicaid, the health-care scheme for the poor that they administer on behalf of the federal government. Several states that were party to the lawsuit complain that they are so hard up that they have no choice but to trim their Medicaid rolls. One, Arizona, has already asked the HHS for a special waiver to drop coverage for 280,000 people. Should it and other such states decide that the health-care law no longer has any force, they could start to jettison Medicaid patients without permission.
The government could try to rein in wayward states by seeking a stay on the ruling while an appeal is heard. Few observers imagine the relevant appeals court, in Atlanta, would withhold one. Whether the court, one of the most conservative in the country, will look kindly on the expansive vision of government embodied in the health-care law, however, is much less certain. Whatever the outcome, the case, along with the many other legal challenges to Obamacare, seems certain to wind up in the Supreme Court. But that will take at least a year, perhaps more.
Frank Pasquale, a professor of health-care regulation at Seton Hall University’s law school, sees scope to challenge Mr Vinson’s findings. The judge was unusually florid in his arguments. He made colourful references to libertarian websites, broccoli and the government’s takeover of GM. There was lots of discussion of the intentions of the Founding Fathers, and relatively little reliance on boring old legal precedent. One of the precedents Mr Vinson did dwell on, from 1935, has since been widely discredited, Mr Pasquale points out. In general, he argues, even the more conservative members of the Supreme Court have taken a more generous view of the federal government’s power to regulate commerce in recent years.
But political prejudice already seems to be impinging on the lower courts’ consideration of the health-care law: the two judges who have given it the nod were both appointed by Democrats, whereas the two who have found fault with it were both appointed by Republicans. The Supreme Court split on partisan lines over the disputed presidential election of 2000, and might well do so again. In that case, health-care reform faces a much more uncertain future: five of the nine justices are Republican appointees, although one—Anthony Kennedy—is of an independent bent. His, many observers reckon, will be the deciding vote.
The Obama administration, for its part, seems in no hurry for the Supreme Court to consider the law, presumably in the hope that it might gain broader public acceptance by the time it does. In the meantime, the Republicans in Congress are making hay. One of the first acts of the new Republican majority in the House of Representatives was to repeal the reforms. A similar drive by the Republican minority in the Senate failed on February 2nd.
The Democrats in the Senate are not rejecting all changes to the law, however. Those at risk of losing their seats in next year’s election are striking centrist poses by proposing tweaks. Debbie Stabenow of Michigan, for example, put forward an amendment that would reduce the paperwork involved for small businesses, which passed even as repeal failed. Others are suggesting that states be allowed to opt out, or looking for fixes in case the Supreme Court rejects the individual mandate. Health-care reform, or at least the debate about it, could not be more alive.
from PRINT EDITION | United States