I’m Back

The past several months have been filled with family events, travel, presenting a paper at a conference, and a lot of reading. The Affordable Care Act and the Supreme Court decision upholding it got a lot of my attention.

Back in the early 1960s, I was a student teacher in a combined English/Social Studies 9th grade class, and I was asked to teach a unit on the Constitution. I thought nothing could be duller. But I was saved by the discovery of a small book that summarized leading U.S. Supreme Court cases. Copying some cases, and withholding the Court’s decisions, I gave them to the students and told them they were the justices—it was their job to decide the cases. It was the spring of 1962. We had a great time together discovering the logic and drama of the law.

By luck, an important voting rights case was argued that spring, Baker v. Carr, and many in the class were riveted by the news and commentary that came out almost daily. As an item of public interest, it was the Florida v. Department of Health and Human Services of its day. Although the topics of the two cases are very different, they share an important subtext: the struggle between urban and rural counties over control of state legislatures—and, by extension, the struggle over control of the federal government between states that are mostly rural and states dominated by large urban centers (e.g., South Carolina and New York).

In my view, the case against the Affordable Care Act (ACA) should never have been accepted for review by the federal courts, and certainly not by the U.S. Supreme Court. Where the individual mandate is concerned, the states simply lack standing. The mandate does not address the states—it addresses individuals as U.S. citizens—and therefore the states have no ground on which to claim that the mandate injures their sovereignty. Moreover, individuals who challenged the mandate offered only vague claims of injury to their “freedom” or “liberty”—nothing imminent or specific enough to warrant review by the U. S. Supreme Court.

As for the expansion of Medicaid, the states’ complaints are entirely disingenuous. It is a well established constitutional doctrine that Congress may require states to comply with federal program rules when programs are funded by federal grants. Moreover the terms offered by the ACA’s expansion of Medicaid are unprecedented in their generosity. The federal government’s share is 100% of the cost through 2016, phased down to 90% in 2020 and thereafter. The states’ complaints raise a political, not constitutional, issue—one to be resolved by the ballot box, not the courts. Predictably, the loudest complaints come from states in the grip of Republican tax-cutting ideology.

In future weeks, I will post more on Florida v. HHS as a political event. It was, after all, the result of a tightly orchestrated campaign of public disinformation (rationing! death panels! socialism!) and behind-the scenes maneuvering by Republican state legislators and attorneys general, with aid and direction from the right-wing American Legislative Exchange Council (ALEC)—a campaign deliberately aimed at frustrating President Obama and Congress’s good-faith attempt to deal with the rising cost and unequal availability of health care.


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