The Real Affordable Care Act Battle: Constitutionalists vs. Confederates
When the Justices hand down their ruling, it will be a decisive moment in a debate stretching back to the Articles of Confederation and the nation's founding.
By Tom Perriello Jun 27 2012, 8:01 AM ET
When I was growing up in central Virginia, corner stores typically sold hats emblazoned with the Stars and Bars declaring "Lee Surrendered but I Didn't." I never imagined that five men in black robes might hand Confederates a victory through the Supreme Court that they could not win at the original Constitutional Convention nor later on the battlefields of the Civil War.
Yet we may be at that juncture today. As our country anxiously awaits the Supreme Court's verdict on health-care reform, the media has reduced the case to the narrow terms of a political horserace. This characterization ignores the enormous significance of this case -- a shift from the modern fight between liberal and conservative Constitutionalists back to an older and more nationally divisive debate between Constitutionalists and Confederates.
From the Articles of Confederation to the Constitution of the Confederate States of America to the Lochner-era Supreme Court, confederationists have long believed in a United States consisting of states loosely united by a small, weak central government, and they have fought for more than 230 years to prevent, undermine, and erode the Constitution. While the term "Confederate" rightly conjures up America's sin of slavery and the racially charged movements for states' rights and state nullification, the present-day confederationists include conservative libertarians and corporatists who support a central government too weak to regulate or tax commerce.
This vision of a tiny, powerless central government has always been at odds with the U.S. Constitution, a document our nation's founders wrote explicitly to reject and replace the Articles of Confederation. George Washington once wrote that the weakness of the Articles, which lacked the Constitution's power to tax and spend for the general welfare, almost cost us the Revolutionary War. Disconnected and self-interested, the states struggled to harness the unity and cooperation necessary to defeat a world superpower.
The Founders addressed this by writing a Constitution that empowered America to "legislate in all cases for the general interests of the Union." Since the Constitution's creation, American leaders have enjoyed the power necessary to solve national problems, whether those problems were a Depression in the 1930s, a system of racial apartheid in the 1960s, or a costly and inadequate healthcare system in 2010.
But the Confederate legacy also lives on. As Elizabeth Wydra of the Constitutional Accountability Center notes [ http://www.huffingtonpost.com/elizabeth-b-wydra/as-new-congress-embraces_b_804351.html ], "The Tea Party's version of the Constitution has far more in common with the failed Articles of Confederation ... than with our actual, enduring U.S. Constitution." The Articles famously lacked our Constitution's commerce power. Similarly, the Confederate Constitution stripped the federal government's authority [ http://mises.org/freemarket_detail.aspx?control=353 ] to "provide for the ... general welfare," from provisions relating to taxation and eviscerated the interstate commerce clause. These limitations would have likely doomed not only the Affordable Care Act, but also major federal programs such as Medicare and Social Security.
For decades after the Civil War, big corporations saw the value of a confederationist vision of a weak central government. They aligned with confederationists in the early 20th century to create a Supreme Court that struck down [ http://en.wikipedia.org/wiki/Lochner_era ] minimum-wage laws, child-labor laws, and laws protecting workers' right to unionize. In the 1930s, confederationist justices struck down law after law intended to rescue America from the Great Depression. The Confederate Constitution's call for weak national regulations and racial oppression echoed again in the 1950s and 1960s. Alabama Governor and U.S. presidential candidate George Wallace famously based his anti-desegregation platform on the principle of states' rights, and after the Supreme Court's momentous ruling in Brown v. Board of Education, states throughout the South claimed they could simply ignore the order to integrate schools. When Congress enacted a ban on whites-only lunch counters, segregationists claimed the ban exceeded the federal government's authority. They lost, unanimously, in the Supreme Court.
Yet today's Supreme Court is moving toward the confederationist framework of protecting corporate interests. From its decision authorizing corporations to spend unlimited political money in the Citizens United case to its assaults on equal pay for women and job security for older workers, the Court's five conservatives have left no doubt about their willingness to obviate the commerce and general-welfare clauses of the Constitution to protect powerful corporate interests. It is worth noting that, throughout the last century, when the corporatist strand has conflicted with the state's-rights position -- from Lochner[ http://www.lawnix.com/cases/lochner-new-york.html ] (in which the Court infamously overturned New York's public health regulations in 1905) to the current Court's reversal just this week [ http://www.theatlantic.com/politics/archive/2012/06/supreme-court-again-smacks-down-campaign-finance-reformers/258936/ ] of Montana's anti-corruption campaign-finance law -- the corporatist side has won.
Respected conservative constitutionalists have all but begged the Supreme Court to stay loyal to the document. Judge Laurence Silberman, a Reagan appointee who received the Presidential Medal of Freedom from President George W. Bush, warned [ http://thehill.com/blogs/healthwatch/legal-challenges/218007-supreme-court-weighs-the-fate-of-obamas-landmark-healthcare-law ] that the case against the Affordable Care Act has no basis "in either the text of the Constitution or Supreme Court precedent." Judge J. Harvie Wilkinson III, a runner-up for the Supreme Court nomination that eventually went to Chief Justice John Roberts, warned that striking down health reform [ http://www.nytimes.com/2012/03/12/opinion/cry-the-beloved-constitution.html ] "is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off."
During his confirmation hearing, Chief Justice Roberts claimed the mantle of these conservative constitutionalists, as an umpire calling balls and strikes. But if he and the other four conservative justices overturn the Affordable Care Act, they will effectively be taking the umpire off the field. In historical context, this amounts not to a reinterpretation of the Constitution but rather its rejection. If the law is upheld, the real victory is not for President Obama but for that most durable of governing documents, the U.S. Constitution.
As Health Care Decision Looms, Even Insurance Issues Are Bigger in Texas
Patients wait in line to get checked in at Houston's Ben Taub General Hospital. Photo by Aaron M. Sprecher/AP Images for Kaiser Health News.
Dr. G. Bobby Kapur is associate chief of the emergency room at Ben Taub General Hospital in Houston. Aaron M. Sprecher/AP Images for Kaiser Health News.
By: Roni Caryn Rabin and Kaiser Health News June 27, 2012 at 2:58 PM EDT
HOUSTON | Last year, Luis Duran drove almost 200 miles to San Antonio to have a colonoscopy because he didn't want to wait six months for an opening at a county clinic.
A few days later, the doctor in San Antonio -- a friend of a friend who had performed the screening for free -- called to break the news that Duran, 51, had advanced colon cancer and needed immediate surgery.
"I kind of broke down," recalled Duran, a machine operator whose employer had terminated his health policy. "I said, 'Doctor, I don't have insurance, and I don't have much money, but I won't refuse to pay. Please help me.'"
They say everything is bigger in Texas, and the problem of the uninsured is no exception. The Houston metropolitan area has one of the highest rates of uninsured people in America, and a health safety net imploding under the demands of too many people and too few resources. Almost one in three residents -- more than a million people -- lack health insurance, and about 400 are turned away every day from the county hospital district's call center because they can't be accommodated at any of its 23 community or school-based centers.
Those seeking care at the public hospital's ER, meanwhile, arrive with blankets and coolers full of sandwiches and drinks in anticipation of waits that may go 24 hours or longer.
"If the Affordable Care Act is overturned, the rest of the country should take a good look at the situation in Texas, because this is what happens when you keep Medicaid enrollment as low as possible and don't undertake insurance reforms," said Elena M. Marks, a health policy scholar at Rice University's James Baker Institute for Public Policy and a former city health official.
Opponents of the federal health care law see the problem of the uninsured very differently. They object not just to the price tag of expanding coverage to millions more people, but to the whole philosophy behind it.
Texans are individualistic and value their freedoms and responsibilities, said Lucy Nashed, spokeswoman for Gov. Rick Perry, who notes Medicaid spending is a big part of Texas' budget.
"Individual responsibility is about making healthy choices and taking ownership of your lifestyle -- not just about buying health insurance," Nashed said. "And you can't legislate a healthy lifestyle."
Many Uninsured Have Jobs
With its fiscally conservative philosophy and cash-strapped state budget, Texas does not offer Medicaid coverage to childless adults unless they are pregnant, disabled or elderly. Parents of children covered by welfare are eligible for the state-federal health program only if they make no more than $188 a month for a family of three.
At the same time, the proportion of Texas workers with employer-sponsored insurance is almost 10 percentage points lower than the national average of 61 percent, in part because of the state's high concentration of jobs in the agricultural and service sectors, which often lack benefits.
"Seventy percent of the people we see here are employed," said Dr. G. Bobby Kapur, associate chief of the emergency room at Ben Taub General Hospital, part of the taxpayer-supported Harris County Hospital District.
"They're hourly wage earners, nannies, [people] working in lawn care services or dry cleaning or real estate, or people working two part-time jobs and neither will pay for health care," he said. "Many are small business owners who are well-educated and well-dressed."
The problem is not too few health care providers -- although there may be a shortage of primary care doctors willing to treat Medicaid patients. Houston's hospitals are world-renowned, drawing patients from all over the globe for its highly specialized care -- primarily to those who can pay.
But the hundreds of thousands who work for small businesses, tend the city's lawns, cook its food and care for its children often lack a regular source of primary care.
Overburdened Safety Net
Add in the unemployed and undocumented immigrants, and more than a million people depend on Houston's safety net providers for their care.
"The number of uninsured in the city is four times the 300,000 patients they serve," Marks said. "They can't possible meet the demand for services, no matter how efficient they are."
The publicly supported Harris County Hospital District schedules 1.5 million outpatient visits every year, and is building primary care clinics "as fast as we can," to alleviate the crush in emergency rooms, said President and CEO David Lopez.
But sick patients are often scheduled for appointments two months after they call. Sometimes, as in Duran's case, they must wait much longer.
"I called, but they said the first appointment I could get was August 14," said Humberto Vasquez, 36, who recently joined a stream of patients heading to Ben Taub General Hospital's ER.
Vasquez said he was worried about pain in his lower abdomen and back that had lasted for two weeks, wasn't responding to over-the-counter painkillers and seemed to be getting worse.
As he walked into the emergency room, Benjamin Vasquez (no relation) was leaving, his left arm set in a cast and $100 poorer. Benjamin, a part-time bakery chef and Bible college student, had broken his arm playing soccer Monday evening and spent 24 hours in the ER; he was still wearing his red Number 12 soccer jersey and shorts.
It was his second time there; he had his appendix removed there nine years ago, gradually paying off a reduced fee of several thousand dollars, he said.
Duran, the cancer patient, was leaving after an outpatient chemotherapy treatment that cost $8, a subsidized rate. A year ago, when he was told there would be a six-month wait for a colonoscopy, his daughter, who works in a physician's office in San Antonio, asked her boss if he knew someone who could do the screening for free.
He found someone, and after that doctor diagnosed cancer, rallied a team of surgeons to operate. Duran paid only the anesthesiologist and a negotiated hospital fee.
"If I had waited six months for a colonoscopy, I would have been dead," he said.
Daunting Challenges If Law Is Upheld
Even if the health law is upheld, its proponents admit it won't be a panacea. An estimated 600,000 Houston-area residents are projected to gain insurance coverage, and many are likely to continue having trouble accessing care.
"Our guess is that the number of Medicaid providers will not increase, and there will be long waiting times to be seen," said Lopez, the hospital district administrator.
Only a third of physicians who were accepting new patients this year were taking those with Medicaid, compared with 42 percent in 2010, according to the Texas Medical Association.
The process of determining eligibility for public coverage or federal tax credits could also be hampered by the state's delay in setting up an online insurance exchange where individuals and small businesses are supposed to purchase policies beginning in 2014.
Undocumented immigrants will also be ineligible for any help since they are barred from purchasing health coverage through the exchanges.
But proponents say things will be far worse if the Supreme Court invalidates the law and the number of uninsured keeps growing.
The situation is so bad that Charles Begley, director of the Houston Health Services Research Collaborative, believes that change is coming to Texas regardless of the court's ruling.
"There's a general realization from both right and left that our health care system is in crisis," Begley said. If none of it goes through, you're going to see ... [a] response like, 'Okay, we dodged that bullet from the federal government. Now let's try to do a better job ourselves.'"
The enduring popularity of Obamacare (at least what's in it)
By Steve Benen Mon Jun 25, 2012 3:05 PM EDT
I saw a familiar headline [ http://news.yahoo.com/most-americans-oppose-health-law-provisions-040810861.html ] over the weekend: "Most Americans oppose health law but like provisions." It's been the only consistent trend when it comes to polling on the Affordable Care Act: the public has been conditioned to reject "Obamacare," but Americans don't really know what's in it. When asked about the provisions of the law, however, they're quite popular.
I put together this chart based on the Reuters-Ipsos data Greg reported on. Note that while there are clear partisan differences on these key provisions of the law, a majority of self-identified Republicans, Democrats, and Independents support each of them.
In fairness, support for the individual mandate and Medicaid expansion isn't as broad. But that doesn't change the fact that most of the key elements of this remain quite popular, even if the overall law isn't (a 56% majority said they oppose the law).
We can debate why so many Americans disapprove of a law they don't understand, and whose fault it is that the public doesn't know what's in the law itself -- I can think of a few culprits [ http://maddowblog.msnbc.msn.com/_news/2012/06/21/12337287-why-health-reform-is-so-unpopular ] -- but when the political world talks about the unpopularity of Obamacare and its proponents' loss in the public-relations battle, remember that the debate is skewed. The right's p.r. success is a mile wide, but an inch deep -- Americans of every stripe still support what it's in the law, even if they don't realize these popular provisions are part of the larger whole.
If policymakers took the component parts of the Affordable Care Act and called it something else, there can be little doubt that the package would poll a lot better.
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