Coakley Tries to Win Minds on a Top Court Ensnared in Presidential Race

Tuesday, March 13, 2012

“Obamacare should be the number one issue in the campaign. I think it’s the gift that keeps on giving.” - U.S. Senator Mitch McConnell, Republican Minority Leader

We keep hearing that economic conditions will determine the outcome of the contest this November between Barack Obama and Mitt Romney, former governor of Massachusetts.

While the economy is likely to be the key “decider,” don’t discount other issues, such as the endless war in Afghanistan, a possible new war between Israel and Iran, and the decision by the U.S. Supreme Court on constitutional challenges to President Obama’s health care reform legislation of 2010, the Patient Protection and Affordable Care Act (PPACA) -- or, as the Republicans like to call it, Obamacare.

The Supreme Court is due to hear oral arguments for three days at the end of this month on the appeal by the Obama administration’s Department of Health and Human Services of the federal court decision in Florida that Congress did not have the constitutional authority to make citizens buy health insurance or pay a penalty. In the normal course of business, the Supreme Court could decide the case as soon as this summer, when the presidential election is starting to get really hot.

If the top court kills the PPACA, the energy boost to the Republicans will be enormous. Close your eyes and imagine you’re listening to the soundtrack of the TV ad Romney will have on the air within 24 hours:

“A vote for Obama is a vote for the biggest blunder by a president in modern times: the illegal federal takeover of health care. Vote for Mitt Romney. He’ll honor our sacred constitution.”

Consider, conversely, what the Democrats could make of a favorable Supreme Court ruling:

“The Republicans tried everything imaginable – Everything! -- to destroy health care reform and the common-sense protections it provided to hardworking Americans. President Obama fought the GOP all the way to the Supreme Court, where he won an historic, lasting victory. Re-elect President Obama, the people’s champion.”

Some people believe Obama will benefit no matter how the Supreme Court decides. If the constitutionality of the PPACA is upheld, Obama will take on the aura of a courageous visionary, this line of thought goes; and if it is overturned, the core Democratic constituencies will be enraged -- and driven to express that anger by working like demons for the president’s re-election.

But with the populace evenly divided in its support and antipathy for national health care reform, a negative decision would probably turn folks who are tentative supporters of the PPACA against it, and lead them to conclude that Obama was seriously misguided in attempting reform on such a grand scale.

Looming always in the background is the experience of Massachusetts and of Governor Romney in fathering our state’s universal health care legislation, a still popular measure whose success rests on the individual mandate to purchase health insurance.

Massachusetts Attorney General Martha Coakley filed an amicus curiae (friend of the court) brief with the U.S. Supreme Court on Jan. 13 arguing that the PPACA is constitutional on three grounds:

One, that the economic effects of the Massachusetts reform bill demonstrate that Congress had a rational basis to determine that “free riders,” i.e., those who decline to obtain health insurance but avail themselves of free care in emergency rooms when they are sick or injured, affect interstate commerce.

Two, that the Massachusetts experience demonstrates that the elimination of “free riding” is rationally related to the successful implementation of the other components of federal health care reform, and that Congress thus had the authority under the “necessary and proper clause” of the constitution to impose the minimum coverage requirement.

Three, that federal health care reform is necessary to address the significant interstate aspects of health care that are beyond the scope of any individual state’s authority.

You do not have to be a lawyer to profit from a close reading of the Coakley brief, which can be found at:

A good way to conclude is by citing a few of the informational gems in the Coakley brief:

· In the filing letter attached to his initial health care reform bill in July, 2005, Gov. Romney asserted, “…it is fair to ask all residents to purchase health insurance or have the means to pay for their own care. This personal responsibility principle means that individuals should not expect society to pay for their medical costs if they forego affordable health insurance options.”

· Since the enactment of health care reform in Massachusetts, the amount the state spent on care for uninsured persons from the so-called “free care pool” dropped by nearly $235 million annually over a four-year period.

· The total cost, nationwide, of providing uncompensated care to the uninsured was $43 billion in 2008, and has certainly increased significantly since then. To pay for uncompensated care, health care providers pass on the cost to private insurers, who pass on the cost to families. This cost-shifting, Congress found, increases family premiums by more than $1,000 a year on average.

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