Jessica Mulholland is the associate editor of GOVERNING, and is also the associate editor of both Government Technology and Public CIO magazines.E-mail: firstname.lastname@example.org
Confusion reigns over the status of health-care reform, as reported by a recent Kaiser Health poll. This lack of clarity could spell trouble for public officials as they develop strategies and plans that will affect the health care of millions of Americans.
The poll released by Kaiser in late February found that 22 percent of the population thinks the Patient Protection and Affordable Care Act (ACA) has been repealed and is no longer law, while another 26 percent don’t know enough to say whether it’s still law or not.
Perhaps more alarming is that even states are unsure about whether they should continue implementing ACA, according to an article from Stateline.org. In January, U.S. District Judge Roger Vinson declared the entire health-care reform law unconstitutional, leaving states confused about whether they should continue rolling out the new health-care provisions. With confusion mounting, the judge ruled on March 2 that states must continue implementation while the case makes its way through the courts.
This level of uncertainty isn’t surprising, given that some judges uphold the act’s constitutionality while others rule the law invalid. So far, three federal judges have ruled in favor of ACA, while two have declared all or part of the law unconstitutional. If a court rules a law invalid, that is, in some ways, overturning a law, according to Adam Winkler, a law professor at the University of California, Los Angeles. The mistake people make, however, is thinking a lower court ruling settles the issue. “Part of it is probably the way the media portrays these things,” he says. “People read a headline that says, ‘Law Declared Unconstitutional,’ and they think the law has been voided.”
But that’s not the case, as Vinson was forced to stipulate in March. Although 26 states are still fighting the federal government to repeal the law, it is still valid—and likely will remain so. The House voted in January to scrub ACA, but the Senate quickly turned down the repeal in early February. Because a law cannot be revoked unless both chambers of Congress vote to do so, the law remains intact. And even if the Senate had passed the repeal, President Obama would have to sign the new law. “I can guarantee you that President Obama would not sign a law that repeals health-care reform,” Winkler says.
This issue will go up through the court system on appeal. At the end of the day, Winkler says, the only vote that really counts is that of the U.S. Supreme Court -- which is likely to uphold the act. It would be a departure from long-standing precedents, some going back 200 years, to declare it unconstitutional, he adds.
Erwin Chemerinsky, founding dean and professor of law at the University of California, Irvine, agrees. “The Supreme Court long has held that Congress can regulate economic activity [that] has a cumulative effect on interstate commerce,” he says, adding that health insurance is an almost trillion-dollar industry -- and that surely fits within the scope of Congress’ commerce power.
So what’s a state to do? At this point, they should keep implementing the law, since it isn’t likely to go away. But even if it did, argues Winkler, taking steps to reform America’s health-care system is essential. “There’s clearly a major problem in America’s health-care system that requires reform,” he says. “Whether we’ll get that reform out of a relatively dysfunctional Washington culture seems up in the air.”
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