We have now had a first chance to read through the Supreme Court’s opinions upholding the Affordable Care Act.  The opinions total 193 pages – so there is likely some nuance that we missed or won’t fully appreciate for days or months or, even, years.

Lots of good coverage out there on the Internet, so we won’t repeat.  We particularly recommend the discussions on Slate and Scotusblog.

A couple of Ohio specific points:

First, a our friend @notgvn asked on Twitter about the Tea Party backed Amendment to the Ohio Constitution from the last election.  This provision provides that “federal, state, or local” goverments cannot compel Ohioans to “participate in a health care system.”  The Amendment also provides that no “penalty or fine” can be imposed for not purchasing health insurance.

The answer is simple.  This Amendment is irrelevant and has no effect on the implementation of the Affordable Care Act in Ohio.  As interpreted by the Supreme Court, the Affordable Care Act imposes a federal tax penalty, collected by the IRS, on individuals who do not have health insurance.  Under the Supremacy Clause of the Constitution, states cannot prohibit the federal government from collecting taxes.  See United States v. Rodgers, 461 U.S. 677, 678-79 (1983) (holding that the Supremacy Clause allows the Government to “sweep aside state-created exemptions” to the collection of federal taxes and apply federal law).

Second, Attorney General DeWine.  One of DeWine’s first acts as Attorney General was to join some other Republican Attorneys General in the lawsuit against the Affordable Care Act.  In fact, DeWine went to D.C. for the oral arguments and was quoted in the media saying, “I believe the federal health care act is unconstitutional – that’s why on my first day as Attorney General, I authorized Ohio to join in the suit.”

Looks like Richard Cordray was right about this one.

In hindsight, perhaps joining the lawsuit was not such a great idea.  At a minimum, DeWine wasted state resources in pursuing this matter.  He also undermined the objectivity of Ohio’s Attorney General’s Office by pursuing cases for partisan political reasons – something we have noted he has done in other cases.  For example, when he joined in a lawsuit against the provisions of the Affordable Care Act that required the provision of contraceptives – Joseph correctly noted that public records supported the conclusion that DeWine was “pursuing the lawsuit for personal and political reasons and not at the behest of Ohio’s citizens.”  DeWine also has undermined the independence of the Opinions Section to help Kasich’s political agenda to privative state prisons; one attorney DeWine’s actions in that case as “pre-determined by political or ideological agenda.”

Ohio would – clearly – be better served by an Attorney General who dispassionately followed that law instead of pursuing politically driven, and headline grabbing, litigation.

Third, the Supreme Court limited the requirement that states expand Medicaid.  Congress is generally permitted to condition the receipt of funds – in this case, federal funds for Medicaid– on the agreement of states to follow certain conditions.  This is commonly done with highway funds; the federal government once conditioned the receipt of highway funds on states raising the drinking age and lowering OVI limits.

The Affordable Care Act required states to expand Medicaid or risk losing all Medicaid funds; the Act also provided significant additional funds to the states.  The Supreme Court in this case felt that the threat to eliminate ALL Medicaid funding unless the states comply was, in its view, too much.

We need to dig a little deeper into how this plays out in Ohio – we aren’t sure how much, or if at all, Ohio needs to expand Medicaid to comply with the Affordable Care Act.  But keep an eye out for  efforts of Ohio Republicans to play games with Medicaid services in order to undermine the goals of the Affordable Care Act.  They may decide to forego federal funds in order to avoid expanding Medicaid.  They have already risked Ohio’s receipt of federal funds as part of the (failed) effort to defund Planned Parenthood.

We will certainly think of more issues – but keep the questions coming.

 

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