Republicans in Tennessee and more than a dozen other states decided early on to contest the new national health care reform law by mounting legal challenges to the law — and especially its mandate to purchase health insurance — as an unconstitutional intrusion on states’ sovereignty. In a legal opinion issued Tuesday, State Attorney General Bob Cooper ruled that the Health Freedom Act devised by state GOP lawmakers to evade the reach of the health-care reform law “is pre-empted by the U.S. Constitution.”
The GOP’s state lawmakers don’t like the attorney general’s ruling. One sponsor, Rep. Mike Bell, R-Riceville, immediately advocated ignoring it as “just one man’s opinion.”
He’s wrong. The state would be wasting taxpayer money — and wrongly meddling in their constituents’ new health care rights — to pursue the challenge, or to join a lawsuit against the reform law that’s been filed by 13 Republican-led states. The broad legal community, and virtually every constitutional law expert questioned by the media, agrees that the new law comports with constitutional precepts, as it was designed to do.
Most legal experts believe the U.S. Constitution’s supremacy clause, as it relates to the new federal health care reform law, supersedes states’ constitutional rights — the point made by Attorney General Cooper this week.
Legal authorities generally cite two specific powers granted by the U.S. Constitution. One provision grants Congress the broad power to impose taxes for the general welfare. The other gives it power to regulate interstate commerce. Both provide the legal basis for Congress to regulate and direct federal health care expenditures and to require citizens, within specific guidelines, to purchase health insurance.
In reality, some scholars argue, the purchase requirement is not actually a mandate. Rather, the law establishes an optional penalty to be imposed on individuals who meet health and income guidelines for purchasing insurance under the law but who fail to do so, either through employer-provided policies or private individual policies.
The penalty — in effect, a legal tax — is authorized by the reform law, and subject to collection by the IRS, to help offset general public health care costs related to the provision of national health care expenditures for public hospitals, clinics and health care providers. It is also an essential reform relative to requirements on insurers to drop bans on coverage limits, pre-existing conditions and to require them to take all comers under relatively level rates. Those reforms require broad pools of participants for insurers to spread risk and keep premiums affordable.
In a suit filed jointly by the mostly Republican attorneys general of 13 states, the challengers also argue that the law encroaches on states’ sovereignty by requiring them to expand Medicaid to people with incomes up to 133 percent of the poverty level. That contention seems equally tenuous.
States are not required to operate Medicaid programs. They do so voluntarily, and for good reason. The federal government provides money on a 2-to-1 matching ratio, for states to provide health care to the very poor to assure medical care and related facilities for citizens in poverty, and to diminish the expensive shift of indigent care costs to the premiums of the privately insured, which still amount to around $1,200 per insured citizen annually.
States are simply unlikely to abandon aid for the care of their impoverished citizens. Thus they are likely to voluntarily comply with the new requirement to broaden the reach of Medicaid. Similarly, states are not required under the new law to establish the insurance exchanges authorized under the reform law to make insurance more available and affordable. If states fail to do so, however, the federal government is authorized under the law establish the prescribed state insurance exchanges.
As Tennesseans begin to grasp the benefits of the new law, the will also begin to wonder why state lawmakers want to oppose it and are grandstanding against it. The law provides federal subsidies to families with incomes up to four time the poverty level — or $88,200 for a family of four — to help families buy insurance if their employers do not provide it. That subsidy would be available to 85-to-90 percent of Tennessee’s working families who make too much to qualify for Medicaid (TennCare) or who do not receive Medicare, veteran, federal or employer-provided health care benefits.
Like most states, Tennessee could achieve virtually universal health care under the reform law. State lawmakers should be rushing to embrace this reform — not to block its benefits for families that need health care.