Reposted from HermannView.
The Supreme Court recently ruled in favor of Obamacare, which will be called CorporateCare in the rest of this article, in a 6-3 decision in King v. Burwell. For a quick summary one can look to the wire services. They reported that the Court upheld “nationwide tax subsidies,” or more simply “financial aid to millions of low- and middle-income Americans to help pay for insurance premiums” regardless of where they they live in the US, a crucial part of CorporateCare, by saying that such subsidies were not restricted “to states that establish their own online health insurance exchange” and that, in the words of John Roberts, “limiting tax credits to people who live in states that set up their own health insurance marketplaces” would be disastrous. [1] This article will pose a critical approach of the law building off my previous writings about CorporateCare and other articles about the specifics of the ruling itself.
Some more specifics on the Court ruling are needed before going further. ScotusBlog noted that CorporateCare, Obama’s “signature legislative achievement” was challenged by opponents from the get-go, but the individual mandate was upheld by the Court three years ago, a mandate which “compels everyone to buy health insurance or pay a penalty” and that the decision affects one of the key features to the law [2]: the healthcare subsidies purportedly for those who can’t afford health insurance. ScotusBlog also noted that the Court ruled that “subsidies are available for everyone who bought health insurance through an exchange, no matter whether that exchange was created by a state or the federal government,” that Congress “intended for the subsidies to be available to everyone who buys health insurance on an exchange, no matter who created it,” and that the Court effectively “maintains the status quo, with the subsidies continuing to flow to low- and moderate-income Americans and…all three key provisions of the ACA [Affordable Care Act or CorporateCare] remaining intact.” TheWashington Post added to this, noting that the legal reasoning of CorporateCare was now insulated “against the legion of opponents who want to undermine the program before it takes hold in American life,” that the “entire national program could have been in jeopardy if the court had struck down the contested subsidies,” and that the ruling was clearly strong in favor of the government. [3] More specifically, John Roberts, in his majority opinion, noted that having no tax credits and ineffective coverage if federal exchanges were not considered health insurance exchanges in states that did not create them, then there were would a “death spiral.” [4] Roberts also claimed that CorporateCare “grew out of a long history of failed health insurance reform,” that it was designed “to ensure that anyone who wanted to buy health insurance could do so,” and that while there was a “disjointed way the law was written,” that banning federal health insurance exchanges would “destabilize the individual insurance market in any state with a federal exchange.” [3] In contrast, Antonin Scalia, who dissented, joined by Justices Thomas and Alito, said that Roberts engaged in “somersaults of statutory interpretation” to preserve Obamacare, saying that “we should start calling this law SCOTUScare,” a comment which drew laughter,” that “the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites,” and that the majority decision reflected the “philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.” [3] He also said that “this court has no free-floating power to rescue Congress from its drafting mistakes,” that the Court’s majority engaged in “interpretive jiggery-pokery,” that it’s logic was “pure applesauce,” and was “quite absurd.” [4]
Not surprisingly, the decision aroused the Republicans in anger including the introduction of a law by Brian Babin, which would require “justices and their aides to purchase coverage on the law’s exchanges,” and Republican efforts to attack the law in Congress and in presidential campaigns to “energize right-wing voters and raise money.” [5] Despite these efforts, some say that there is “little chance of the healthcare law being rolled back before 2017″ since the “Supreme Court has again validated it” and that by 2017, when a new President comes into power, “the law will have been on the books for seven years and millions of Americans will have a stake in it, making it even more difficult to dismantle.” [6] While militarist and corporatist Hillary Clinton cheered the decision, John Boehner, speaker of the House, said that “we will continue our efforts to repeal the law and replace it” with others following in proposing alternatives like staunch conservative Orrin Hatch “urging the approval of tax credits to help people buy insurance.” [6] Still, there are indications that the Republican Party is divided on CorporateCare with some wanting to go back to 2009 before CorporateCare existed, others proposing alternatives, and some GOPers feeling that they “won’t have to anger their base by preserving the subsidies, even temporarily, while many of the “Republican candidates running for their party’s nomination vowed to repeal CorporateCare if elected.” [6] The Washington Post added that while the GOP generally denounced the ruling “some party leaders concluded that it at least relieved them from having to find an alternative” and this isn’t a surprise since the individual mandate was first theorized by the right-wing Heritage Foundation in the 1990s. [3] Don’t anyone forget that.
On the same token, certain liberals and progressives defended the law.Slate writer Mark Joesph Stern wrote that while some assumed that the law would be upheld under federalist logic, that didn’t happen at all, and that Roberts “gave the president an even bigger victory than he could have hoped for.” Bill Boyarsky adds to this claiming that CorporateCare is “an imperfect but badly needed revolution in health care,” a vital “part of the nation’s social safety net and too much a part of American life to be ripped out,” that if the Court had “gone the other way, the results would have been disastrous,” and that it’s “not a perfect law” which will be “a powerful weapon for Democratic presidential and congressional campaigns.” While these arguments are absurd, there are less ridiculous than the conspiratorial article by Wayne Root in The Blaze, a site founded by Glenn Beck, asking “has Supreme Court Justice John Roberts been blackmailed or intimidated?” and claiming that John Roberts and other Republicans “are being blackmailed, intimidated, extorted and bribed” with not one shred of evidence except the crazy ideas floating around his head. [7]
There was something telling after the decision: the health stocks rallied. Bloomberg Politics reported that “HCA Holdings Inc., Tenet Healthcare Corp. and Community Health Systems Inc. all gained more than 8 percent after the ruling,” along with health insurers as well since “Obamacare has provided millions of paying customers for hospitals and health insurers, in part through the subsidies that were upheld today” and the “new clients have helped fuel a multiyear rally for health-care stocks,” with more consumers in the future. [8] The article also quoted Michael Wiederhorn, an analyst at Oppenheimer & Co. as saying that the decision “was an ideal outcome for the hospitals and removed the biggest investors’ concerns” and that it allows “the hospital stocks to again trade on their strong fundamentals.” [8] The article also noted that the court’s “decision also helps ease the path to dealmaking among health insurers” including mergers between health insurers, that “for-profit hospital chains had about 2 percent to 5 percent of their earnings riding on the case,” and that medical trade associations “praised the ruling.” [8] Other media had similar stories, saying that “health-care stocks jumped immediately after the decision” since the “the ruling was particularly good news for hospitals, which are likely to see fewer uninsured patients in emergency rooms,” that the health insurance and hospital industries “breathed a sigh of relief,” and that investors (and hospital operators) cheered that the growing number of paying customers created by Obamacare would not disappear.” [9] Additionally, “the S&P 500 healthcare index .SPXHC rose 0.5 percent” after the ruling, and health care investors cheered “the Supreme Court’s ruling…on the Affordable Care Act” with “industry stocks immediately rall[ying]…on Wall Street” and “hospital stocks in particular stand to benefit because the ruling means fewer uninsured patients coming to the Emergency Room” along with “health care insurers…[seeing]…their stocks go up.” [10]
Such rallying on the stock market after the Court decision tells me that I was right when I wrote in 2013 that CorporateCare keeps the for-profit insurance system in place,comes from a bill with a “corporate nature” and that “Obamacare is not for our benefit, as it keeps the insurance company profiteers in business, and makes them strong.” But I must go beyond that and my previous criticism of the law, which I then called the “Affordable Corporatist Act” to say that the CorporateCare clearly is not only corporatist but a form of privatization and neoliberalism. After all, as Obama said that CorporateCare is here to say, the Court, in the words of Wall Street’s mouthpiece, the Wall Street Journal, said that if the Court had ruled a different way, “it would have thrown the insurance and medical industries into turmoil” and after the Court’s decision, “insurance and hospital businesses…breathed a sigh of relief and stocks in the companies rose.” [11] Additionally, there is evidence that people will remain uninsured even with CorporateCare in place, even though 16-17 million of people “have gained health insurance as a result of the health law,” about “35 million remain uninsured” currently, and by 2019, 26 million will still remain uninsured. [12] If that’s not enough, those that will stay uninsured will be, according to the Congressional Budget Office, undocumented immigrants, those eligible for Medicaid who don’t enroll, and those “people who have access to insurance through an employer or could buy it on their own because of the law but have chosen not to.” [12] On top of this, when people are choosing to “remain uninsured, their reasons are almost always financial — not political” with people concluding mostly that “they were better off not spending money on insurance,” that a large “number of the uninsured had checked out their options on HealthCare.gov or a state site,” and that “the uninsured still get health care,” finding “doctors and hospitals who take cash, and sometimes haggle for the price.”[12]
The writers at Naked Capitalism added to this, saying that the Court upheld the “Heritage Foundation plan to rescue health insurance industry” and that consumers can be “legally mandated to enter lemon markets for necessities,” a market which can’t be improved, since it will stay a “lemon market” if “the insurance companies have their way writing the policies to profit by denying people care.” They also quoted Ben Nelson as saying the court decisions improves confidence in the markets for health insurance, that Jonathan Gruber was a major part of pushing for the healthcare law, and so on. But hey, this isn’t a surprise, since as self-declared populist Jim Hightower recently wrote,”we regularly see shameless racketeering schemes from the establishment peers of Wall Street, Big Oil, Big Food, etc.” along with “the wiseguys of Big Pharma, whose industry-wide business model is based on legalized price gouging.”
I could write more, criticizing the Supreme Court for again ruling in a corporatist and neoliberal manner, or tying the ruling to American & global capitalism, saying the ruling is a victory for international capital (of course it is). but I don’t think that is necessary. This article is meant as a starting point in the conversation about CorporateCare and to continue a critique. Perhaps there are some parts of the law that have good benefits, but it is clear that the law will not create a system that will benefit the whole American populace since it will leave millions uninsured and creates/contributes to another problem: underinsurance. One could say that that this is what CorporateCare was originally set up to do since it was written with the help of Big Pharma, the insurance companies, and hospital operators, and included corporate giveaways. In the end, as Jim Hightower said in a post about the horrid TPP, regardless of his faults, “…real people who know from experience that the old saying is true: If you’re not at the table, you’re on the menu.”
Notes
[1] See Reuters (“UPDATE 7-U.S. top court backs Obamacare, president says it’s here to stay,” June 25) and Associated Press (“Obama health care law survives second Supreme Court fight,” June 25). Reuters claimed that CorporateCare would be a “a lasting element of the nation’s social programs” and that “the current system will remain in place, with subsidies available nationwide” which includes “online marketplaces that allow consumers to shop among competing insurance plans.” The Associated Press added hat “the legal case against nationwide subsidies relied on four words…in the more than 900-page law.”
[2] The three features are: the “non-discrimination rule” which means that “health insurance companies must sell insurance to everyone,” the individual mandate which “requires everyone to obtain health insurance or pay a penalty” and the subsidies, which is “the third pillar of the system created by the ACA.”
[3] See Washington Post, Affordable Care Act survives Supreme Court challenge, June 25. The article quoted Heather Howard, a lecturer at Princeton University’s Woodrow Wilson School of Public and International Affairs, as saying that “this is an even stronger ruling for the government than anticipated and means that a future president will not be able to reverse the interpretation through a different administrative interpretation.” Roberts also said that “the states likely would have created their own exchanges in the absence of the IRS rule, which eliminated any incentive that the states had to do so.” Interestingly, in the 2012 ruling in favor of the individual mandate, National Federation of Independent Business v. Sebelius, Roberts distanced the court from CorporateCare saying that “it is not our job to protect the people from the consequences of their political choices.”
[4] See Bloomberg Politics, “The 8 Best Lines From the Huge Obamacare Ruling, From Applesauce to Jiggery-Pokery,” June 25, Reuters, “UPDATE 7-U.S. top court backs Obamacare, president says it’s here to stay,” June 25,” and an article in the liberal clap-trap, Slate, on the topic.
[5] See Politico, “Republican lawmaker introduces ‘SCOTUScare Act’,” June 25 and Reuters, “UPDATE 2-Republicans to fight Obamacare through election campaign despite ruling,” June 25. Also see Washington Post, “GOP congressman to SCOTUS: If you love Obamacare so much, you should use it,” June 25.
[6] Reuters, “UPDATE 2-Republicans to fight Obamacare through election campaign despite ruling,” June 25. The article quotes Joseph Antos, an expert in health policy at the American Enterprise Institute, who says that “it [CorporateCare] is entrenched. There certainly will be no legislation (signed into law) that will change anything for the next year and a half. This administration is done with health policy. Everybody’s done” and Brookings Institution analyst Stuart Butler: “the longer it [CorporateCare] is on the books the harder it will be to dislodge. Not harder – impossible.”
[7] I would have added the link here, but I don’t want to link to such trash, so if you want to read the absurdity, please just look it up yourself.
[8] See Bloomberg Politics, “Hospitals Rally as Supreme Court Upholds Obamacare Subsidies,” June 25.
[9] See Washington Post, Affordable Care Act survives Supreme Court challenge, June 25; Reuters, “UPDATE 7-U.S. top court backs Obamacare, president says it’s here to stay,” June 25; Reuters, “Wall Street ends lower, but health stocks rally,” June 25; and Associated Press, “Obama health care law survives second Supreme Court fight,” June 25. The Associated Press also said that “investors had worried that many patients would drop their coverage if they no longer had tax credits to help pay” while Reuters said that “the ruling sparked a broad rally in shares of health insurers with an especially heavy stampede into hospital operators, which were seen as being at particular risk of facing steep losses had the subsidies been struck down.”
[10] See Reuters, “Wall Street ends lower, but health stocks rally,” June 25 and Washington Post, “After Obamacare ruling, health stocks soar,” June 25.
[11] Wall Street Journal, “Supreme Court Upholds Obama’s Health-Law Subsidies,” June 25.
[12] Wall Street Journal, blogs, “Five Things About People Who Remain Uninsured Despite Obamacare,” June 24. I removed the 5% who “were supposed to be eligible for Medicaid under the health law but don’t qualify because their state opted not to expand the program” because the Supreme Court extended health insurance coverage to these people by extended the subsidies, one could say.
ZNetwork is funded solely through the generosity of its readers.
Donate