BU Today

In the World

Claiming a Place in Health Care History

LAW class brief cited as Supreme Court upholds health law


Two School of Law professors and their students get wee bragging rights for yesterday’s Supreme Court decision upholding most of President Obama’s health care law.

The ruling partly relied, in at least one justice’s mind, on one of several briefs filed by Constitutional Health Care Litigation students and their instructors. The briefs defended the Affordable Care Act (ACA), which will expand health insurance to an estimated 30 million Americans. In her concurrence with Chief Justice John Roberts’ majority opinion, Associate Justice Ruth Bader Ginsburg, addressing opponents’ arguments that states and not the federal government should work to insure Americans, quoted the brief: “Out-of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the State’s efforts to improve its health care system through the elimination of uncompensated care.”

“Facing that risk,” Ginsburg concluded, “individual states are unlikely to take the initiative in addressing the problem of the uninsured, even though solving that problem is in all states’ best interests. Congress’s intervention was needed to overcome this collective-action impasse.”

Kevin Outterson and Abigail R. Moncrieff, both LAW associate professors, developed the class, part of the school’s highly regarded health law program. Moncrieff yesterday lauded the “major victory for the nearly 100-year-long political effort to improve the nation’s health care system.” (Theodore Roosevelt proposed national health insurance in his 1912 Progressive Party presidential campaign.)

The 5-4 Court decision upheld the health law’s linchpin, the “individual mandate” that will require Americans to buy insurance or pay a penalty. The justices dealt a blow to one part of the law, its expansion of Medicaid, the federal-state program paying health expenses for poor people. The Court gave states some wiggle room to avoid the expansion without paying the penalties the law would have imposed.

Supreme Court of the United States of America, Chief Justice John G. Roberts

The Justices of the U.S. Supreme Court: Associate Justice Sonia Sotomayor (top row, from left), Associate Justice Stephen G. Breyer (Hon.’95), Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan; Associate Justice Clarence Thomas (bottom row, from left), Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. The Court upheld the constitutionality of the Affordable Care Act (ACA) on June 28. Photo by Steve Petteway, Collection of the Supreme Court of the United States

The surprising lineup in the Court’s decision found conservative Roberts ruling for the law, while swing-vote Justice Anthony Kennedy voted to strike it down. Yet there’s a visible philosophy undergirding Roberts’ judicial approach, says Graham Wilson, a College of Arts & Sciences political science professor and department chair. In another case before the Court this week, Roberts argued that life in prison without parole for minors was constitutional and that “the judgment on that issue should be made by legislators, not the Court,” Wilson says. “He has with praiseworthy consistency said that the health care issue also is to be settled in the democratic political, not judicial, arena.”

That’s because the decision to uphold Obama’s signature legislative achievement—coverage for millions of uninsured people that has eluded presidents since Franklin Roosevelt—shifts opponents’ hopes onto GOP presidential candidate Mitt Romney, who has vowed to repeal what critics dub Obamacare. In a rare break from those pundits stating the blatantly obvious (the ruling was a victory for Obama), Tobe Berkovitz, a College of Communication associate professor of advertising, calls the decision “a gift to the Republicans.”

Citing polls showing the law’s unpopularity with a majority of Americans, Berkovitz says the Court’s reasoning in the case—that the individual mandate’s penalty is a tax and therefore within Congress’ constitutional right to levy—“plays into the Republican meme that Obama and his liberal minions in the House and Senate love taxing the American people.”

Wesley Yin, a CAS economics assistant professor, disagrees. (He begins a one-year stint in August as senior health care economist on Obama’s Council of Economic Advisers.) While economists have long regarded the penalty as a tax and were unsurprised by Roberts’ reasoning, Yin says, Obama has not really raised taxes via the law, because “buying health insurance, as the vast majority of people already do, negates the penalty completely.” Moreover, he says, the law makes many lower-income Americans eligible for tax credits to buy insurance, rather than subjecting them to tax hikes.

Defenders of the mandate have argued that without a requirement to have all Americans pay into the insurance pool, the law’s guarantee of coverage to the sick would be unaffordable. But while the mandate is the most effective way to get that money, there are nonmandatory “carrots,” such as premium subsidies, that could encourage healthy people to buy insurance, Yin argues. If Romney is elected and repeals the mandate, he says, he will have to ponder those carrots while keeping the guaranteed coverage for the sick, which has wide public support.

Bottom line after the decision: “This is clearly a win for President Obama’s first-term legacy,” says Yin. “However, he’ll need to articulate the tangible benefits of the ACA to the American people more clearly than he has in the past, a task made more difficult by what I expect will be a Republican effort to cast Obama as the architect of a ‘bait and switch’ tax on Americans.”

Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

5 Comments on Claiming a Place in Health Care History

  • Kitty on 06.29.2012 at 8:37 am

    As an individual who has paid for my own and my family’s health insurance for over 40 years, I won’t be facing the additional tax for failing to obtain health insurance under this legislation as it stands now. However, in addition to having paid for medical care for the uninsured, including that of millions of residents in our country illegally, for years — through my federal income taxes — I, like the only-49% of Americans who even pay federal taxes, can count on my federally tax liability to increase significantly under this legislation. The Healthcare Reform Act dramatically increases the number of persons who will qualify for free healthcare by removing them from the group that will face a tax– not a “penalty” as the Act characterized it–for not purchasing health care insurance. As a taxpayer all my working life, I would at least have expected that in return for my payment for my own health insurance and that of an increased number of persons in this country, the administration would have included the requirement that all those benefitting be legal residents of the United States. The government has repeatedly shown itself to be an inefficient provider of any social service, and is proven to be chronically unable to manage any national social program. The majority of US taxpayers belong to the middle class, because it has been the largest “class” of people in America for decades. Do the math: As the number of persons not required to pay taxes grows, and the proportion of our population who are required to pay taxes diminishes, the federal tax burden placed on the middle class will continue to grow. When you don’t have to pay taxes and are responsible for fewer and fewer of the costs of living, you don’t really care what the government does if it continues to subsidize you at little or no cost to you.

  • Mike on 06.29.2012 at 9:28 am

    “The PPACA expressly exempts unauthorized (illegal) aliens from the mandate to have health coverage and bars them from a health insurance exchange. Unauthorized aliens are not eligible for the federal premium credits or
    cost-sharing subsidies. Unauthorized aliens are also barred from participating in the temporary high-risk pools.”

    Google search time: .28 seconds.
    Time to excerpt quote and cut and paste: ~20 seconds.

    • Kitty on 06.29.2012 at 2:46 pm

      Yes, but unauthorized aliens will continue to receive health care at no cost…to them. They will not be required to have health insurance and thus will not have to pay the tax for not having it; they will continue to receive health care paid for by you and me.

      • PPACA on 07.02.2012 at 3:42 pm

        “They will continue to receive health care paid for by you and me.”
        “They will continue…”

        As you said yourself, even while appearing blind to it: What you’ve described is not some new issue raised by PPACA. As always, anyone attempting to receive medical care will need to use insurance or pay out of pocket, unless it’s an emergency situation. In the case of the latter instance, you already pay for that–insurance companies build it into their premiums. You’ve been paying for the uninsured since you bought your first policy.

        The PPACA says that insurance companies have to take everyone (no pre-existing condition exclusions now) and gives incentive for being insured–by widening the pool of people who will have health insurance, PPACA seeks to lower premiums. Moreover, going forward (and starting now) insurance companies must spend between 80 and 85 percent of their money on…and this is surprising…medical care (AKA: doing their jobs). They can no longer price gouge, also keeping your premiums down. If they exceed that 15-20 percent pure profit margin, they must send you a rebate.

        In this system, the people who are uninsured because they can’t afford insurance will be given tax credits that allow them to buy insurance. How will the country pay for that? By giving people who are uninsured and *can* afford insurance the choice between buying insurance and paying in like the rest of us to keep the overall costs down or to pay a small tax for the right to refuse insurance. You are legally obligated to buy car insurance if you plan to own a car, yet you don’t get all bent out of shape at that law, because it makes sense. Being insured medically makes as much, if not more, sense. You’ll adjust.

        Finally, this entire new system was devised and approved by people far more intelligent than you and I. If you’re that concerned about “getting yours” then you should take a bit of time to read up on what this actually means: a health care tax CUT for the middle class. Read Ginsburg’s opinion for insight both into the shattering intellect of that woman and also why this is a necessary step for America.

        Here’s a simple, clear explanation on what will happen in the next few years: http://www.reddit.com/r/politics/comments/vqory/supreme_court_upholds_affordable_health_care_act/c56sc5m (note that the mandate doesn’t kick in for two years, yet, so you have some time to calm down and do some research before you go panicking your way all over the internet.)

        Sarcasm aside, Kitty, you are standing up for what you believe in, and articulating your fears without calling it socialism or excoriating bleeding heart liberal hippie scum. I am also proud of you for being insured and responsible. The next step is information. Unbiased, clearly put information. Your claim that this doesn’t account for non-citizens was rebuked. It was the spine behind your overall comment. Don’t come back with a spineless retort. Take in what you now know: it does cover the contingency you feared. Then, get further information, to see if you can’t assuage other of your fears and, perhaps, even see this as a good thing, despite the fact that a Democrat was in office when it became law.

        Get more information. Not the kind that says what you already think is true, that everything liberals do is only for the good of the poor and “illegals,” to the detriment of “real” Americans. I can’t see your surname, but unless it’s tribal…well, I know you already know the inherent hypocrisy. Read up on the policy, realize that it’s actually quite good for you and our country. Real knowledge will help keep your blood pressure down, and that is healthier and less expensive for all of us.

  • tricia on 06.29.2012 at 10:19 am

    Thanks, Mike! This is a great and exciting moment in history and one that I am grateful to see in my lifetime. I think Obama and the left in general has to do a better job highlighting the features & benefits (and the math) that will benefit the middle class.

Post Your Comment

(never shown)