At issue was National Federation of Independent Business, et al, Petitioners v. Kathleen Sebelius, Secretary of Health and Human Services, et al (NFIB v. Sebelius).
Voting 5 - 4 on Thursday, the Supreme Court upheld what should have been rejected. Pro-business High Court rulings aren't new.
Since the 19th century, what business wants matters most. Santa Clara County v. Southern Pacific Railway stands out. It granted corporations legal personhood.
Ever since, they've had people rights without responsibilities. Their limited liability status exempts them. As a result, they've profited hugely and continue winning favorable high and lower court rulings.
Another big one came on June 28. Health giants won. People lost. At issue was challenging Obama's Patient Protection Affordable Care Act (PPACA) - aka Obamacare.
From March 26 - 28, oral arguments on its constitutionality were heard. Contentious issues include:
- mandating all adults have health insurance or be taxed to compensate;
- PPACA's Medicaid expansion provisions;
- whether the Anti-Injunction Act bars courts from reviewing the individual mandate until it's effective in January 2014; and
- "severability:" namely, whether one issue can be struck down while leaving others intact.
Many PPACA provisions took effect. Key ones, including the individual mandate, begin January 2014.
Twenty-six states sued to overturn Obamacare. The Supreme Court heard the Florida case. It included the others as plaintiffs.
A record pro and con 136 amicus briefs ("friends of the court") were filed for Court consideration.
In 2010, Ralph Nader called Obamacare a boon to predatory giants. They profit hugely. Ordinary people lose. Nader called PPACA "a pay-or-die system that's the disgrace of the Western world."
Former CIGNA vice president Wendell Potter said Obamacare shifts costs to consumers, offers inadequate or unaffordable access, forces Americans to pay higher deductibles for less coverage, and ends up scamming them.
Physicians for a National Health Program (PNHP) headlined their press release " 'Health law upheld, but health needs still unmet:' national doctors group," saying:
- Modest PPACA benefits don't remedy "our health care crisis."
- Unresolved issues include:
- excluding a public option and universal coverage;
- millions left uninsured;
- many more underinsured;
- unaffordability for most people "because of high co-pays and gaps in coverage that leave patients vulnerable to financial ruin in the event of serious illness;" and
- rising predatory costs.
At issue is empowering private insurers. They "siphon off hundreds of billions of health care dollars for overhead, profit and the paperwork (they) demands from doctors and hospitals."
Bottom line priorities deny care by making it unaffordable for millions. They and other industry giants obstruct reform.
In contrast, universal coverage assures comprehensive affordable care. Predatory middlemen are excluded. Doing so saves $400 billion annually. Using it for care instead of profits covers everyone.
Comparable state plans failed. Residents were betrayed. So-called reforms "founder(ed) on the shoals of skyrocketing costs, even as the private insurers have continued to amass vast fortunes."
Medicare for all offers real reform. Everyone in. No one out. Healthcare is a universal right. Commodifying it has no place in free societies. It's always been that way in America.
Reform efforts never worked. Lobby power blocked them. In 1917, 15 states introduced a standard health insurance bill. Eight others established commissions to study the issue. Proposals were weak and confusing. They were dead on arrival.
In the 1930 and 1940s, government-sponsored health insurance resurfaced. The issue remained contentious. Industry giants again blocked change.
Post-war, employer-provided coverage increased. Retirees, the disabled, unemployed, and others were uninsured. After years of debate, Medicare and Medicare included them.
Nonetheless, efforts to cover everyone affordably failed. PPACA is the latest example. It's a rationing scheme to enrich insurers, drug companies and large hospital chains.
PNHP speaks for millions saying:
"What is truly unrealistic is believing that we can provide universal and affordable health care in a system dominated by private insurers and Big Pharma."
"The American people desperately need a universal health system that delivers comprehensive, equitable, compassionate and high-quality care, with free choice of provider and no financial barriers to access."
Convoluted arguments upheld PPACA's controversial individual mandate provision. It requires purchasing coverage from private insurers.
Ruling with the majority, Chief Justice John Roberts said:
"The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax."
"The federal government does have the power to impose a tax on those without health insurance."
"Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
He added that he and other majority justices abstained on judging whether passing PPACA was right or wrong.
"Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them," he said. "It is not our job to protect the people from the consequences of their political choices."
Anthony Kennedy disagreed. He called the law an affront to individual liberty and should have been entirely rejected.
"The values that should have determined our course today are caution, minimalism and the understanding that the federal government is one of limited powers," he said. "The court’s ruling undermines those values at every turn."
"The act requires the purchase of health insurance and punishes violation of that mandate with a penalty," he added.
"But what Congress called a ‘penalty,’ the court calls a tax. What Congress called a ‘requirement,’ the court calls an option....In short, the court imposes a tax when Congress deliberately rejected a tax."
At the same time, majority justices rejected the administration's main argument about congressional authorization to regulate interstate commerce.
The Commerce Clause doesn't give legislators the right to require people buy health insurance, they said.
It's "not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions," said Roberts.
In a separate opinion, Justice Ruth Bader Ginsburg called arguments against the Commerce Clause "stunningly retrogressive."
It represents pre-New Deal rulings "in which the Court routinely thwarted Congress' efforts to regulate the national economy in the interest of those who labor to sustain it."
In other words, the Court restricted congressional authority to pass social welfare laws. Doing so makes planned cuts easier.
The ruling also limited Medicaid's expansion. Seven justices said Congress exceeded its constitutional authority to coerce states to participate by threatening to cut off federal funds. They can opt out of Medicaid's expansion if they wish.
Doing so undermines efforts to cover individuals under age 65 with incomes of 133% above poverty or less. Around 11 million Medicaid recipients are affected. They already receive minimal care.
Experts say America's poorest are left in "no-man's land." They'll be uncovered by federal benefits and ineligible for subsidized insurance.
PPACA provides 100% of funds to expand Medicaid until 2016. Thereafter, it's 90%. Until now, federal funding required state participation. No longer. Millions will be harmed. Many will be left out entirely.
Medicaid expansion provided coverage for around 17 million Americans by 2019. States now can opt out at their discretion.
Matt Solo, executive director of the National Association of Medicaid Directors said states have a major decision to make.
"There is a real debate here where states are going to have to weigh leaving huge amounts of federal dollars on the table versus accepting potential exposure in the future. Before, you just had to just hold your nose and do it," he said.
He's not sure what states will do. He called the Court decision "a total surprise." It will greatly impact PPACA's future, he believes.
According to Professor Sara Rosenbaum:
"The practical effect....will make the Medicaid expansions go more slowly."
Future court decisions may have to distinguish between new programs or additions to existing ones. Budget strapped states seek new ways to cut costs. This ruling adds leverage. It lets them do it on the backs of residents most needing help.
Professor Adam Winkler said:
"It will be interesting to see what happens in the 26 states that challenged Obamacare. Will they go through with their threats of not expanding their own Medicaid coverage? Or will the promise of federal money persuade them to expand coverage?"
Opting in assures full federal coverage for three years. At the same time, Congress plans major Medicare, Medicaid, Social Security, disability, education, and other social benefits cuts post-election.
Both parties agree. It's part of an earlier struck "grand bargain" no matter which party controls the White House and/or Congress.
Regardless of how the High Court ruled, expect bipartisan congressional support to inflict the most harm. Social America is fast eroding. Party leaders plan ending it entirely.
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|Allen L. Jasson|
|William A. Cook|