Two Big Post-Court Arguments

Now that the dust has settled a bit on the Supreme Court’s health reform decision yesterday, and everyone’s had a chance to offer their initial takes (or for some of us, a number of takes), there seem to be two factual issues in dispute about what happens down the road. One is whether the Court’s modification of ACA’s penalty for state failure to implement its Medicaid expansion (from total loss of Medicaid fund to loss of funds made available for the expansion) will actually invite states to sabotage the expansion at their own tangible fiscal expense. And the other is whether Republicans will have the power to implement their threats to “repeal” ACA if they win the White House and control of Congress in November.

On the first point, I remain about the only member of the chattering classes willing to predict the Medicaid expansion could be in trouble, at least in the South, where it matters most. It’s interesting that the Court’s decision seems to be rekindling resistance from Republican governors to the steps needed to implement the health care exchanges authorized by ACA (note this handy AP summary on where the various states are in implementing or failing to implement the exchanges). But at some point the conservative rank-and-file are going to come to the full realization that this is something of a paper tiger, since state non-cooperation with the exchanges simply allows the Department of Health and Human Services to step in and take care of the chore themselves. So far no governor has come right out and said they’d fight the Medicaid expansion now that the Court has made that action possible at the cost of something less than complete withdrawal from Medicaid (Kaiser Health News has compiled a list of quick reactions from the states on this subject, which includes some saber-rattling from GOP leaders, including one definitive prediction of resistance from a Missouri legislator). But I continue to think it’s just a matter of time until that becomes a realistic possibility. In some states it will involve a battle not only between Democrats and Republicans, but between conservative ideologues and the health care interest groups (e.g., hospitals, medical equipment vendors, private insurance companies with Medicaid delivery contracts) in a position of influence with the GOP. And as is already the case, conservatives mulling a rejection of the Medicaid expansion may hedge their bets by predicting a Republican victory in November that will make the whole thing go away.

And that brings us to the “repeal” scenario. Several pundits (notably David Frum and Ryan Lizza) have rejected the idea a Republican-controlled Congress would have the power or will to repeal ACA. Lizza in particular leans on the procedural difficulties of using “reconciliation” to achieve repeal, though missing, I suspect, the important fact that the Court’s construction of the individual mandate as a “tax” will make it much easier for a hostile Congress to treat its repeal as a budget measure.

For my money, Matt Yglesias is dead-on in rejecting these breezy assurances:

[I]n the real world there are very few practical constraints on reconciliation. The operational issue the Obama administration had with reconciliation is that there were a clutch of 10-15 Democratic Senators who preferred a 60-vote Senate because it put shifted the pivot point and put policy outcomes closer to their personal ideal points. It was those Senators who raised a lot of niggling objections about reconciliation rules.

The GOP is more ideologically unified and more focused on advancing a broad conception of the national interest rather than parochial concerns of individual legislators.

That’s accurate history, as is Matt’s reminder of how then-Majority Leader Trent Lott dealt with a Senate parliamentarian who was too scrupulous about reconciliation when Republicans were whipping the Bush tax cuts through the Senate in 2001 (Lott fired him).

So all in all, I’d say implementation of ACA remains pretty strictly contingent on the November elections. If Republicans win the White House and control of both Houses of Congress (and the two outcomes remain likely to be linked), the odds are high they would attempt a total (or near-total) repeal of ACA in the context of enacting a Ryan Budget that would, of course, radically reverse progress towards universal health coverage far beyond where we were in 2010. If they lose in November, or (for the sake of argument) fail to get control of the Senate, then the big question is whether an enraged conservative movement begins looking for other options for mucking up ACA implementation, at which point demands on Republican state lawmakers to block the Medicaid expansion will be ratcheted up to a high-pitch chattering whine.

UPDATE: Note this New York Times piece from Kevin Sack and Reed Abelson outlining what states must do when to implement ACA, which confirms much of the above about the “keep all options open” position of Republicans in the states at the moment.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.