Important changes are usually hard-fought, not just in the Congress but also in the courts.
It’s hard to believe now, but Social Security was once challenged as unconstitutional. So were child-labor laws. So was unemployment compensation.
Someday we will look back at this month’s litigation about the Affordable Care Act with as much incredulity as we now have toward those suits.
Let me make one point clearly: The ACA is plainly constitutional. If it were not for the politicization of the litigation, it wouldn’t even be a close call.
The individual responsibility requirement (aka the mandate) is a regulation of interstate commerce. Inasmuch as health care is 15 percent of the economy (and on its way up), one would be hard-pressed to find a more substantial exercise of the Commerce Clause. And because everyone will, sooner or later, use this sector of the economy, it is unlikely that one could find a more fundamental sector to regulate.
Even its former-advocates-now-opponents (remember the mandate originated as a conservative, market-based idea popular with industry and economists) would have to concede that such a coverage requirement is a “necessary and proper” route to the very basic goals of eliminating pre-existing condition exclusions and ending annual and lifetime caps on coverage.
The challenge to the constitutionality of the Medicaid expansion is equally, if not more, implausible. The basic claim is that, even though participation in the Medicaid program has been and will remain voluntary for states, Medicaid is too good a federal deal for them to refuse. Therefore, by being too generous in its offer, the federal government is “coercing” the states.
Law, history, spending and the Constitution all argue against such an outcome.
The law is clear. States have never been required to participate in Medicaid. Although it was enacted in 1965, the last state, Arizona, did not join until more than 15 years later. As recently as last year, some states, most notably Texas, were public in their consideration of leaving the program. The fact that they have not done so doesn’t mean they cannot do so.
The history is equally clear. Congress has incrementally expanded the minimum requirements repeatedly over the years, from the initial coverage of children and people who are “aged, blind or disabled” to the patient protections of nursing home reform. None of those expansions has been considered “coercive.” They were implemented by every state as another condition of receiving billions in federal funds. The ACA takes the next logical step in this process, expanding the program to all poor people, regardless of their category or status. If this step is somehow going too far, then all the previous expansions and conditions are in jeopardy also.
If anything, the spending argument is even clearer. Medicaid has always required state matching payments. Sometimes there have been enhanced matches for specific purposes, but in general states have been expected to pay between a fifth and a half of the costs, even as the program was enlarged and improved.
But the expansion of the ACA comes with an initial payment of 100 percent of all costs for most states by the federal government. Over time, the federal payment glides down to 90 percent for all states, but it is still hard to see how this 10 percent cost to the states is more “coercive” than previous 50 percent matches.
Finally, the constitutional argument is basic and indisputable. When the federal government spends money, it can attach conditions to it. This exercise of the spending power is the basis for a wide range of laws from civil rights protections to highway funds.
If the Supreme Court were to say that the ACA Medicaid expansions are somehow too much, then a century of legislation is up for grabs. No court — whether looking at health care reform or any other exercise of the spending power — has ever nullified a law on this basis.
There is a sound jurisprudential reason for courts not to intrude in this way. Any decision to do so would place the judicial branch in the middle of the legislative process. Even the plaintiffs in the ACA case cannot articulate a standard for what conditions are acceptable and what goes too far. This is exactly the kind of decision that the framers gave to the legislative branch because we are accountable to the electorate on a regular basis. Courts are the wrong venue for arguing out such decisions.
As virtually everyone agrees, the ACA litigation that will be argued this month will be momentously important. But it’s not because the arguments against the statute are so convincing. They are not. It is because the stakes are so high and the changes are so important.
Rep. Henry Waxman (D-Calif.) is ranking member of the Energy and Commerce Committee.