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.

  • duckmonkeyman

    Since the mandate was justified under the power of taxation and not the commerce clause as I’m reading, did SCOTUS essentially tie Medicare taxation to ACA taxation? In other words, if a future court reverses ACA does that mean Medicare is also unconstitutional?

  • nowaRINO

    Social Security is also set up under the tax code.

  • duckmonkeyman

    My thoughts, too. I wonder if anyone well versed in law could share thoughts? Did SCOTUS lock in the mandate beyond just precedence? Politically, does that now tie future GOP actions against ACA more closely to the Third Rails? We know Republicans want to privatize SS and Medicare and dismantle them, but this ruling seems to make that more difficult.

  • Leonidas

    First, no real worry about a future court — it would take years to reach the court again.

    Second, Inthink the Court would see these as different. What makes the ACA unusual is that people have a choice whether to comply with the law or pay the tax. In contrast, everyone pays Medicare taxes automatically when they work. That is why Congress could always have done a single payer system funded with a tax on incomes.

  • Could you speak to Mary Taylor’s intransigence on this issue, and what it means for Ohio?

  • stryx

    Hey, let’s not forget about the flaming yahoo who turned down millions of Federal money for setting up insurance exchanges in Ohio- Mary Taylor! Even more then Mike DeWine, Taylor has shown reckless indifference toward Ohio’s finances. Way to screw Ohio, Taylor!

  • xx

    It means that if she doesn’t act to set on up she allows the federal government to do it for her.

  • I know, but I’m curious as to what an observant take on the current situation is, now that it has been upheld. I certainly haven’t been observing, as I’ve been out of state on assignment.

  • Leonids

    If Ohio does not set up an exchange then the federal government will set up the exchange.

    In theory Ohio will be better served by having its own exchange. However, I suspect that the Kasich administration would either not do it effectively or pursue an ideological agenda to undermine the exchanges effectivenn and efficiency. This means that we are probably better served by Taylor doing nothing and participating initially in the federal exchange.

  • Leonidas

    This does not lock in anything — if the GOP gains the presidency and majorities in the House and Senate, they could simply repeal the ACA (there is a debate going on about whether the repeal would be subject to a filibuster under Senate parliamentary procedures but, trust me, you don;t want to dive into THAT).

    My view is that this ruling would not prohibit the privatization of Medicare or Social Security. In theory, the GOP could follow the tax model set forth by Justice Roberts: everyone has to contribute to a retirement plan or HSA or pay an extra tax penalty at the end of the year.

  • TJsClone

    What huge tax increase, wingnut?

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