New Orleans The great news is that Chief Justice John Roberts looked over his shoulder at history and found a way to provide the needed vote to uphold President Obama’s signature legislative accomplishment and rule that the Affordable Care Act (ACA) was constitutional yesterday. The decision is surrounded by dark clouds and rests on somewhat shaky ground, as I read some of the analysis and commentary, but lawyers and legislators will bring us those fights in the future.
The fight now falls in two places. First the ACA has no chance of surviving in any form or fashion without putting Obama at the goal line to insure that any attempt to repeal is vetoed, and furthermore the numbers have to be bucked up to prevent an override of any veto. That’s an all hands on board matter for all of us: dateline November.
The other fight is even messier though, and that’s the one that has to do with expanding real coverage for the poor. For many of us the best thing about the ACA and what made it worth swallowing some of our hopes and dreams for the fight was the very expansion of Medicaid at the state levels that was embedded in the Act. Now, tragically, the convoluted decision has this expansion voluntary, in a shocking move by a disturbing majority (7-2), which moves the notion of “states’ rights” from atavistic, rightwing rallying cry to commonplace future policy concern for any new piece of legislation in the future. Immediately it means that the 26 states that joined to bring the challenge to ACA could individually decided to block the expansion of healthcare coverage to the poor and the federal government, having lost the ability under this decision to withhold funds for such action, will be powerless to prevent them from doing so.
Louisiana, where I live, leads the list of states with poor families who will be punished in this way, just as current Governor Bobby Jindal has been doing to date. The 26 states include the whole block of the Deep South (7), most of the Mountain and Plains states (10), and surprising pack in the Midwest (5), and then a couple in the Northwest and a couple in the Northeast. The more rabid of these states, like Louisiana and the up-south Wisconsin, have declared that they will do nothing and put all of their marbles on ejecting Obama and overtaking Congress. In places like Washington, Pennsylvania, Michigan, Ohio, Nevada, Colorado, Arizona, Nevada, Florida, and maybe even Nebraska, I think an argument could be made that deeply state-based coalitions should be built now that could wage the ground, air, and political campaigns to expand Medicaid for the poor in those states. Resourcing would be a struggle until the Obama election is determined probably, but where it was possible to build wider and deeper now on this issue, the fight could be joined immediately on the core issues.
There is great work already happening in many of these states – thank goodness – but this is now a clearer and harder fight than any had imagined until yesterday’s decision so it demands a deeper look and a different strategy if lower income families are going to have any chance of getting something closer to universal health care in the 26 holdout states. We are now going to have to fight in the trenches everywhere, and there’s no federal knockout punch to win the late rounds. Either we would have to move the poor to covered states or organize the poor to win where they live. That’s my vote. It’s a life or death fight.