The Challenges to Health Care Reform: A Dangerous New Chapter in an Old Story

December 19, 2011
Guest Post

By Sergio Eduardo Muñoz, Senior Policy Analyst, Health Policy Project, Office of Research, Advocacy, and Legislation, National Council of La Raza

For or against it, by now you’ve probably heard enough hyperbole about the Affordable Care Act (ACA) to start examining every new sound bite with a healthy dose of skepticism. Apologies in advance then: the Supreme Court’s rejection of health care reform really could be one of the biggest decisions in American history. For the usual reasons of course—the destabilizing of one-fifth of the national economy—but also for an under-reported and just as significant impact. An adverse decision could wreak havoc on long-standing and hard-fought legal protections for vulnerable minorities in this country. In its wake, a determination that health care reform is unconstitutional could roil and roll back half a century of progressive change. Which may be the point.

The numerous lawsuits filed against the ACA represent a strain of thinking that was around long before Congress suggested expanding health insurance to most Americans might be a good idea. The challenges to health care reform are only the most recent manifestation of a very old, very ingrained, and very vocal resistance to the federal government setting down benchmarks for states’ treatment of its citizens. Referred to most kindly as states’ rights enthusiasts, these advocates have consistently railed against progressive federal action—from anti-slavery laws through Reconstruction to the New Deal and beyond. The ACA is just their latest boogeyman, ripe for “nullification.” A constitutional theory, mind you, that was not only dodgy after the original 13 states were incorporated under a federal government, but really should have been settled after one of the last attempts to overthrow federal law ended at Appomattox.

These repeated failures, however, have never diminished this ideology’s very real threats and consequences for the most vulnerable among us. The idea that state law can somehow trump federal law is not only directly contrary to Constitutional text and legal precedent—if actually implemented it would demolish American government as we know it. It’s no exaggeration. Without the Supremacy Clause of the Constitution, that inconvenient part in Article VI, which constantly dampens states’ rights advocates, not only safety nets like health care reform but also civil rights, immigration law, and public interest regulation could be discarded at will by recalcitrant state legislatures. Ironically, it was precisely this fragmentation of American government that led the founders to discard the original Articles of Confederation in the first place, and which makes this concept the instigator of bitter conflicts time and time again.  

And so, once more, the lawsuits brought by Republican governors and attorneys general against the federal requirement for state citizens to carry health insurance is conceptually nothing new, if still dangerous as ever. States are currently at loggerheads with the Department of Justice over their unconstitutional attempts to ignore federal immigration law and voting rights. States objected to the more explicit federal prohibitions on Jim Crow for a long time, too. Even now, in an era of ever-increasing economic and racial inequality, states are engaged in a systemic effort to contravene Title VI through state initiatives and referenda banning affirmative action. Moreover, the specific legal vehicle for the objection to health care reform—a challenge to the use of Congress’s power to regulate interstate commerce—is a tired tactic, albeit a significant one. No, what makes the challenge before the Court even more potentially destructive is a new theory for states to wiggle out of their obligations under federal law—a novel secondary challenge that was also accepted for review.

Since its enactment, Medicaid has been a partnership between the state and federal governments which involves a pretty straightforward agreement:  if a state chooses to set up public health insurance for its poorest, the federal government will pitch in for over half the costs. The ACA took this bargain for the states one step further—if states choose to participate in Medicaid, the federal government will fund the vast majority of care for those newly eligible under health care reform in perpetuity. And it’s this increased generosity that apparently contravenes states’ rights. If that’s confusing…well, it’s a peculiar position.

Under another thread of jurisprudence, conditions attached to federal spending are almost always constitutional. A Court opinion over the legality of forcing states to enact drinking ages as a condition to highway funding, however, contained a toss-away rumination that sometimes a condition on the receipt of federal monies may be impermissibly coercive. Despite the extreme reluctance of federal courts to ever hold a condition unconstitutional in this fashion, Florida and its co-plaintiffs glommed onto this dictum. Their challenge asserts that federal Medicaid funding has become so crucial to states’ budgets that expanding the program with 100 percent funding is too irresistible an option to turn down. That’s the coercion:  this completely optional deal is too good. Yes, the requirement for individuals to carry health insurance is unconstitutional because states have the responsibility to solve this multi-trillion-dollar problem. But, the expansion of Medicaid is unconstitutional because states are not responsible enough to solve this multi-trillion-dollar problem. Clear as mud.

Keep in mind that the greater consequences under either the interstate commerce theory or the coercion theory are the same. The same sorts of progressive laws that are partially justified by the effects of discrimination, immigration, or corporations on the nation at large are also at times justified by the federal government’s authority to set terms on the use of its monies. Whether states prevail over the ACA’s individual responsibility mandate or over the Medicaid expansion, any first-year law student henceforth will be able to pick and choose which civil rights, safety net, or public interest protection to attack next.

It is precisely because of the importance of these federal institutions for vulnerable populations—over 23 million Latinos and African Americans alone depend on Medicaid and language discrimination has painstakingly been prohibited as a condition of federal spending—that the Court’s current docket is extremely worrisome. In addition to the health care reform case, the Court has also agreed to hear separate cases alleging that Arizona’s draconian SB 1070 violated federal immigration law and a separate case on the enforcement of federal Medicaid law against states who underfund their programs. All of these cases revolve around that same old states’ rights conceit—states are immune to federal laws they disagree with. Whether or not you agree with the concept or the social policies underlying the challenged federal laws, the argument is dead wrong both legally and historically.

The Court is, of course, free to overturn precedent. It’s done it before, for good and for bad. In a time when the Court is split philosophically and may be forced to make a decision at the height of an extremely partisan presidential election, health care reform may very well be a victim of the times. Anti-discrimination advocates should hope not. Federal law is not inherently a virtue over state law—many states contain acts more progressive than their federal counterparts. However, the truth remains that some of the most progressive human rights law in the world, the model for other countries’ constitutions, democracies, and protections for minorities, are vulnerable if the ACA is struck down. The majority of federal judges, even conservative ones, seem to have recognized this and one hopes the Court does too. The unraveling of post–New Deal America won’t be inevitable with a decision that strikes down health care reform, but the means to this end will certainly have been offered up. And that could lead to a very different America for vulnerable minorities than the one we know now.