Q. What is your reaction to the Supreme Court’s health care ruling?
A. I’m very surprised by two things. One is that [Chief Justice John] Roberts joined the liberal wing of the court to uphold the individual mandate, and the other is that the court essentially saved the administration’s constitutional bacon by declaring the mandate legal under the taxing power — which was the administration’s third preferred justification for the individual mandate, behind the commerce clause and the necessary and proper clause. The administration did not want to use the word “tax” in the legislation and the court essentially said, “We’re overruling your language, calling it a tax, and therefore under Congress’ taxing power it’s constitutional.” That combination is just very unexpected.
Q. Why do you think Roberts took this approach?
A. This is a cautious ruling in which you see Roberts threading the needle … not throwing out the law, but wanting to display his displeasure at utilizing the commerce clause in this way. So he points that out by saying the commerce clause is not the basis here [of the ruling], it’s the taxing power.
I suppose conspiracy theorists, or just plain political realists, will call this a Trojan horse type of decision, in two senses: Political opponents of the law can now tar the law even more by saying this is a tax on the middle class, which Obama promised never to impose — which is not quite accurate, but you can imagine that that will be the kind of language we’ll hear from opponents. Also, it is a very narrow reading of the commerce clause, which might spell trouble in the future for the Voting Rights Act and Civil Rights Act.
Q. How do you think this will play out politically, between now and the election in November?
A. In some ways this becomes even more of a political football for the Republicans. But the Republicans in general, and [presumptive Republican presidential nominee] Mitt Romney in particular, are limited in the ways they can attack this, because as many people know, the idea for the individual mandate, in using private insurers as a means of expanding coverage to the uninsured, was hatched in conservative think tanks: It was the alternative offered by three Republican senators to the Clinton health care reform in 1993 and 1994, and of course [as governor] Romney signed the Massachusetts reform, which is the template for the ACA. So the Republicans will try to milk this for all it’s worth, but they have a little bit of difficulty in doing so.
Long term, barring a Republican repeal [in a future administration], this means that the ACA can be implemented. Many of the provisions that are already in place are very popular, primarily extending coverage to children on their parents’ health insurance until age 26. Other provisions are popular, such as not allowing the denial of insurance due to pre-existing medical conditions.
Implementation means that yet other provisions people don’t know about, but that have the potential to be popular, will now come to fruition. For example, one of the fears that many Americans have of the law is that people will be forced to buy insurance they cannot afford. What has been under the radar is that [the ACA has] a whole set of subsidies for insurance, on a sliding scale, that go up to 400 percent of the poverty level.
That means families with incomes up to $88,000 a year, for a family of four, can get subsidies to purchase health insurance on state health insurance exchanges. People don’t realize that. They will be able to shop around for a product with help from the government to buy these insurance plans.
Currently, if you try to buy private insurance on the individual market, you might get quoted a price of $1,000 a month to insure your family. Well, in Massachusetts, where we have one of these exchanges in place, we’re talking about a fraction of that, depending on your income level, in terms of premiums. When people start to realize that these subsidies make health insurance affordable, it will become yet another provision of this law that turns out to be quite popular.