Health Care Law Upheld in Fractured Court Ruling

By Kenneth Jost
Supreme Court Editor, CQ Press

President Obama’s health care overhaul survived a Supreme Court showdown largely intact on Thursday even as a majority of justices rejected the rationale for its central provision, the individual health insurance mandate.

By separate 5-4 votes, the court upheld the Affordable Care Act’s individual mandate as a tax provision even as a different majority declared that Congress exceeded its Commerce Clause power by requiring individuals to buy health insurance if they did not want to do so.

In a separate, also fractured, ruling, the court upheld the act’s major expansion of the joint federal-state Medicaid health insurance program for the poor, but limited the possible penalty for states that decide not to go along with the change.

A seven-justice majority said the act’s provision withholding all Medicaid funding from any state that did not agree was unconstitutionally coercive on the states. But five justices ruled that the Medicaid expansion could go forward if non-participating states forfeited only the additional federal funds for covering individuals with incomes up to one-third above the federal poverty line.

The court’s ruling gave Obama a victory of sorts on a law whose most controversial provision — the individual mandate — is not set to take effect until 2014. Some popular provisions, such as family coverage for children up to age 26, have taken effect. Congress gave the bill final approval in March 2010 on the strength of a Democratic majority in both the House and the Senate; Republicans gained control of the House in November 2010 in part by capitalizing on opposition to the mandate and vowing to try to repeal the law in its entirety.

Chief Justice John G. Roberts Jr. delivered the decision in the court’s final session of the term in an opinion that no other justice joined in toto. Four conservative justices led by Anthony M. Kennedy joined Roberts in rejecting the individual mandate as a way to regulate how to pay for health care. But the conservative bloc dissented from the decision calling the provision a tax penalty and upholding it on that ground. Four liberal justices led by Ruth Bader Ginsburg argued that the individual mandate was constitutional as an exercise of Congress’s power to regulate interstate commerce but went along with Roberts in upholding the provision as an exercise of Congress’s taxing power.

Both Kennedy and Ginsburg read major portions of their dissents from the bench, an occasional step for a justice to emphasize his or her disagreement. The courtroom was silent for virtually the entire 50-minute session even as hundreds of noisy demonstrators massed outside the Supreme Court plaza carrying placards either supporting or opposing the health care law.

The court’s decision in National Federation of Independent Business v. Sebelius, available here, challenged understanding as Roberts announced it. The law appeared to be doomed as Roberts described the individual mandate as an unprecedented requirement to force individuals “to become active in commerce” in order to regulate their conduct. But in what Kennedy aptly described as “a pivot,” Roberts went on to rule that the act’s enforcement provision – section 5000a – was within Congress’s power as “in effect a tax on those who do not have insurance.”

Roberts similarly seemed set to dispose of the Medicaid expansion after describing the threatened withdrawal of all funds from non-participating states as “a gun to the head.” But he reversed direction to say that the expansion is valid if the penalty is limited to the loss of new funds. The government pays 100 percent of the expanded coverage, with its portion declining to 90 percent by 2020.

The dissenters — in an opinion listed as jointly authored by Kennedy and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — said they would have ruled the law invalid in its entirety. Kennedy mocked the majority’s decision to uphold the mandate on terms that both Congress and Obama repeatedly disclaimed. “What Congress calls a penalty the Court calls a tax,” Kennedy said.

Kennedy similarly criticized the majority’s rewriting of the Medicaid provision. The ruling, he said, “leaves states with no reasonable choice but to” agree to the expansion of the program.

Ginsburg spoke for herself and the other three liberal justices — Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — in arguing for upholding the mandate as economic regulation. The provision, she said, amounted to a requirement to “prepay for medical care through insurance.”
The liberal justices split on the penalty provision of the Medicaid expansion. Breyer and Kagan joined Roberts and the conservatives in striking down the penalty for non-participating states as too severe. Ginsburg and Sotomayor said they would have upheld the law as written but voted with Roberts, Breyer and Kagan to save it after narrowing the penalty for states that do not go along.
Unless repealed, the penalty for not buying health insurance is now set to go into effect on Jan. 1, 2014, starting at $95 or 1 percent of taxable income. The penalty would rise to $695 or 2.5 percent of taxable income in 2016, subject to cost-of-living adjustments in later years. The law exempts, among others, people with financial hardships or with incomes below the federal income tax threshold.

Weekly Roundup 6/25/2012

The Six Possible Supreme Court ‘Obamacare’ Outcomes
Brian Beutler, Talking Points Memo, June 25, 2012

Synopsis: For its highly anticipated ruling on the Democrats’ Affordable Care Act, the Court has several options, including “punt,” since the fee that the law imposes on those who decline to buy insurance – which is arguably a tax -- has not yet taken effect. A seldom mentioned but potentially highly troublesome option would be for the Court to strike down the requirement that states expand Medicaid – using mostly federal funds – to cover everyone with incomes up to 133 percent of the federal poverty line.

Takeaway: Beutler writes: “If the Court determines that the mandate [to buy insurance] violates the Constitution, it can ‘sever’ the mandate from the rest of the law….This outcome would leave it up to Congress and the states to deal with the ‘adverse selection’ problem — without a mandate…young and healthy people would avoid purchasing insurance until stricken by illness or injury, leaving older, sicker people in the risk pool. Premiums would spike and the market could ultimately collapse….[L]awmakers would be under intense pressure from the insurance industry to forestall the potential calamity.”

For more, see our reports on “Health Care Reform” (Aug. 28, 2009, and June 11, 2010 – updated May 24, 2011), “Universal Coverage” (March. 30, 2007) and “Rising Health Costs” (April. 7, 2006).

-- Marcia Clemmitt, Staff Writer


Generation Gap Is Back
“Old vs. Young,” by David Leonhardt, “Sunday Review,” The New York Times, June 24, 2012

Synopsis: The Washington bureau chief of the Times argues that the economic and political generation gap between the young and those over 65 is growing.  Since about 2004, older voters began moving right, he writes, while younger voters shifted left. The young favor gay marriage and school funding more strongly than their elders, and they also are less religious, more positive toward immigrants, less hostile to Social Security cuts and military cuts and more optimistic about the country’s future.

Takeaway:  Younger Americans’ optimism is especially striking in view of the fact that the economic slump of the last decade has taken a much higher toll on the young, who are less  established in their working lives and are struggling both to get hired and to hold on to jobs. And the wealth gap between households headed by those over 65 and those under 35 is wider than at any point since the Federal Reserve Board began keeping consistent data in 1989.

For background see “The Partisan Divide” April 30, 2004.

--Kathy Koch, Managing Editor, CQ Global Researcher


A Madman in Our Midst
Jeneen Interlandi, The New York Times Magazine, June 22, 2012

Synopsis: The author recounts her father’s tragic spiral through emergency rooms, psych wards and eventually jail as severe bipolar disease robbed him of his mental health.

Takeaway: In the end, her father’s mania begins to subside, and with the help of a defense attorney and an understanding judge, he returns to normalcy -- and to his wife and family. “And with therapy and medication, the final traces of his mania finally dissolved,” the author writes.

For background, see “Prison Health Care,” Jan. 5, 2007.

-- Thomas J. Colin, Contributing Editor

This Week’s Report: U.S. Oil Dependence

As drivers take to the road this summer, many may wonder why gasoline prices remain in the neighborhood of $3.50 a gallon when gas consumption is down nationally and the United States is producing more oil today than in more than a decade.

In this week’s report, veteran energy writer Jennifer Weeks examines the complex dynamics of oil production and pricing and addresses the question of whether the United States can break its dependence on foreign oil.

“Most mainstream economists say production decisions in the United States cannot affect world oil prices,” Weeks writes. Because oil is traded worldwide, geopolitical developments steer prices, and experts say “volatile energy costs are inescapable as long as America relies heavily on oil.”

Weeks’ report includes analysis of the proposed Keystone XL pipeline project, which would carry oil from so-called tar sand deposits in western Canada to refineries on the U.S. Gulf Coast. Advocates say the pipeline would generate jobs and make more oil available from a friendly ally. But environmentalists strongly oppose the project, arguing that it would consume huge amounts of water, create toxic waste and greenhouse gas emissions and damage Canadian forests and rivers.

This report is ideal for classes and papers in such disciplines as environmental science, energy policy, business, economics, geopolitics and consumer affairs.
--Thomas J. Billitteri, Managing Editor

Weekly Roundup 6/18/2012

How Curt Schilling Dinged Rhode Island
Matthew Yglesias, Slate, June 13, 2012

Synopsis: Rhode Island lawmakers awarded retired Red Sox pitching star Curt Shilling a $75-million loan guarantee to move his fledgling computer-game company to Providence. Less than two years late the company is broke, and Rhode Islanders are on the hook for the cash.

Takeaway: "It looks an awful lot like a toxic interaction between stupidity, desperation, and Red Sox fandom. In 2010, Rhode Island created a $50 million Job Creation Guarantee Program to offer state-backed loans to entrepreneurs...[E]xpanding it to benefit just one firm was crazy."

For more on state schemes to lure jobs and business, see our March 2 report, “Attracting Jobs"

--Marcia Clemmitt, Staff Writer


Rajat Gupta Convicted of Insider Trading by Peter Lattman and Azad Ahmed
Peter Lattman and Ahzam Ahmed, The New York Times, June 15, 2012

Synopsis: Rajat Gupta, who reached the pinnacle of corporate America as managing partner of McKinsey & Co. and director at Goldman Sachs, was found guilty of conspiracy and securities fraud for leaking boardroom secrets to billionaire hedge fund manager Raj Rajaratnam. The case caps a wave of successful insider trading prosecutions over the last three years that penetrated some of Wall Street’s most vaunted hedge funds and reached into America’s most prestigious corporate boardrooms.

Takeaway: The case demonstrated that successful insider trading prosecutions could be largely built on circumstantial evidence like phone records and trading logs. Previous convictions, including the trial of  Rajaratnam, have relied more heavily on wiretaps.

For background see the CQ Researcher report “Financial Misconduct” (Jan. 20, 2012).

--Thomas J. Colin, Contributing Editor

This Week’s Report: “Gambling in America”

Casinos, state-sponsored lotteries and other gambling operations provide not only entertainment for millions of Americans but billions of dollars for cash-strapped state and local governments.

As CQ Researcher Associate Editor Kenneth Jost writes in this week’s report, principled   objections to gambling in past decades have given way to liberalized social and cultural mores and a desire by politicians to find new sources of revenue.

“In the past, the love of gambling -- along with the hope of a winning number or a winning hand – was kept in check by other social forces, including moral or religious objections and fear of the social costs for gamblers and their families as well as society at large,” Jost writes. But that resistance has receded. “The critical reason for gambling’s increased acceptance … has been its role in providing revenue for state governments. . . . For lawmakers and governors, gambling offers a revenue source more politically palatable than new taxes.”

Jost’s deeply researched report traces the spread of lotteries and commercial and tribal casinos through most of the country, discusses the social and psychological pitfalls of gambling and features a robust pro-con debate by two outside experts on whether lotteries take advantage of the poor.

--Thomas J. Billitteri, Managing Editor

Weekly Roundup 6/11/2012

Bob Woodward and Carl Bernstein, The Washington Post, June 9, 2012 (print edition: June 10)

Synopsis: The scandal that forced the only presidential resignation in U.S. history was more far reaching and more sinister than recognized at the time. That is the conclusion of the two reporters who broke open the scandal, Bob Woodward and Carl Bernstein, on the eve of the 40th anniversary of the Watergate break-in: June 17, 1972. Far from a “third-rate burglary,” Watergate was actually one part of five wars that President Richard M. Nixon waged against the antiwar movement, against justice, against the news media, against the Democrats and, ultimately, against history.

Takeaway: Despite efforts by some to minimize the scandal, Woodward and Bernstein say the historical record now shows that Watergate was “a brazen and daring assault, led by Nixon himself, on the heart of American democracy: the Constitution, our system of free elections, the rule of law.”

--Kenneth Jost, Associate Editor


Why We Don't Believe in Science   
Jonah Lehrer, The New Yorker blogs, June 7, 2012

Synopsis: Learning science is even harder than we thought. Brain researchers say that before we learn many scientific facts and concepts we first have to unlearn intuitions that come naturally to us -- but contradict the facts. Our brains, for instance, take naturally to the notion that the sun revolves around the Earth.

Takeaway: Psychology and brain-imaging studies confirm why learning, especially scientific learning, is so tough: "Even after we internalize a scientific concept-—the vast majority of adults now acknowledge the Copernican truth that the earth is not the center of the universe—that primal belief lingers in the mind. We never fully unlearn our mistaken intuitions about the world. We just learn to ignore them."

For related reading, see our reports on Science in America (Jan. 11, 2008), Intelligent Design (July 29, 2005) and Teaching Math and Science (Sept. 6, 2002).

--Marcia Clemmitt, Staff Writer


Amos Kamil, The New York Times Magazine, June 10, 2012
Synthesis:  Widespread sexual abuse of both boys by teachers and coaches occurred for decades at one of New York City’s elite private schools, Horace Mann, according to a lengthy report by a former student.

Takeaway:  Even before the story was printed, numerous former students posted blogs online alleging they too had been abused. The school would not comment about the accusations, only saying that there are now policies in place for people to report incidents of sexual abuse; a former Board of Trustees member told the author, "No one will talk to you. They are all lawyering up."

For background see “Sex Scandals,” Jan. 22, 2010, and “Sex Offenders,” Sept. 8, 2006.

--Thomas J. Colin, Contributing Editor

This Week’s Report: “Alcohol Abuse”

Binge drinking and other forms of excessive alcohol use kill 80,000 Americans a year and drain more than $220 billion from the economy, according to the Centers for Disease Control and Prevention (CDC). Yet, while alcohol abuse is down overall in American society,  that is not the case among college students, who drink more alcohol and binge drink more often than non-students of similar ages.

And this week’s Researcher points to another disturbing trend: the rising popularity of flavored alcoholic beverages such as Four Loko, Blast and Tilt. One expert calls Four Loko, with its 12 percent alcohol content and 23.5-ounce containers, “a binge in a can,” with the effect of up to five beers. Some researchers say the increased sale of such products contributes to girls now drinking as much or more than boys.

This compelling report includes a discussion on lowering the legal drinking age, a sidebar on a university’s efforts to control excessive drinking and a lively debate on whether raising alcohol taxes would reduce abusive drinking.

--Thomas J. Billitteri, Managing Editor

Weekly Roundup 6/4/2012

Liz Clarke, The Washington Post, June 2, 2012 (print edition: June 3, 2012)

Synopsis: The United States’ future as an Olympic power is being threatened as college athletic departments struggle to support sports such as gymnastics, swimming and wrestling that are important to the quadrennial games but do not make money for colleges. Major universities continue to invest in the two major revenue-generating sports, basketball and football, but are cutting support for other sports. The University of Maryland, for example, recently eliminated eight of its 27 varsity teams, including track, swimming, diving and tennis.

Takeaway: College sports are in effect the “farm system” for many U.S. Olympians. “It’s not a good thing,” says the head of the wrestling coaches association, “for our farm system . . . to be eroding.”

For background, see my report “College Football,” Nov. 18, 2011.

--Kenneth Jost, Associate Editor


Andrea Wulf, Los Angeles Times, June 3, 2012

Synopsis: Sky watchers around the world this week will be able to observe a rare and significant event:  the planet Venus silhouetted against the Sun as its orbit passes between Sun and Earth. Such rare, but ultimately predictable events, meticulously observed over thousands of years, allowed ancient astronomers to unravel the workings of the solar system.

Takeaway: In the 1760s, even during wars, astronomers traveled to exotic and dangerous places, “at great peril and against heavy odds in many cases — because they believed that the transit held the key to one of the most pressing quests of the age: the distance between Earth and the sun and, by extension, the size of the solar system.”

For related material, see the CQ Researcher reports Space Program (Feb. 24, 2012) and Science in America (Jan. 11, 2008) and the CQ Global Researcher report, Globalizing Science (Feb. 1, 2011).

--Marcia Clemmitt, Staff Writer


Elisabeth Rosenthal, The New York Times, June 3, 2012

Synopsis:  A steady stream of evidence in the last few years indicates that annual physical examinations and many of the screening tests that accompany them are pointless and even potentially dangerous.

Takeaway: Routine screening tests and medical procedures that research has indicated are unnecessary annually include EKGs, pap smears, blood work, cholesterol tests and bone scans to detect osteoporosis for women under 65.

For background see “Patient Safety,” CQ Researcher, Feb. 10, 2012.
--Thomas J. Colin, Contributing Editor

This Week’s Report: “Traumatic Brain Injury”

Every year, about 1.7 million Americans suffer a traumatic brain injury (TBI). Direct blows to the head from falls, car and motorcycle crashes, assaults and football-field hits cause many of the injuries.  And over the past decade, some 300,000 veterans of the wars in Iraq and Afghanistan have suffered TBIs, many of them caused by roadside bombs.

As veteran science writer Marcia Clemmitt notes in this week’s report, doctors and scientists are making slow but significant progress in diagnosing and treating TBIs, which can lead to dementia, depression and even suicide. But the hurdles are high. Effective rehabilitation is the single most promising path to recovery from a TBI, Clemmitt writes. Yet access to care and the high cost of rehabilitative treatment – as much as $8,000 per day in a hospital and $2,500 daily for outpatient therapy – remain the biggest obstacles.

Enhancing Clemmitt’s report are a pro/con debate on motorcycle helmet laws and two sidebars, on the anatomy of TBIs and cutting-edge brain-injury research. Students and faculty in a wide range of fields, from medicine and sports administration to social science and health policy, will find this report important reading.

--Thomas J. Billitteri, Managing Editor