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UC Experts Weigh in on Supreme Court’s ‘Obamacare’ Ruling

Obamacare panel

By Cathy Cockrell, UC Berkeley NewsCenter

On the first Monday after the Supreme Court’s decision on the Patient Protection and Affordable Care Act (ACA), a half-dozen UC Berkeley experts in constitutional law, public policy, economics, and health law and policy rendered their judgments on the ruling during a panel discussion at Berkeley Law. Healthcare economics, the challenges of implementing a complex law about which the public is deeply divided and the powerful role of politics were all put under the X-ray.

Calling Republican outrage over the ruling “all about politics,” moderator John Ellwood, a professor of public policy, noted that challenges to the ACA were raised “within a nanosecond” of its signing by President Obama in March 2010. For starters, numerous states challenged provisions on expanding healthcare coverage under Medicaid, the program that covers vulnerable individuals of limited means and is funded jointly by the federal government and the states. (The high-court justices, by a 7-2 vote, nullified the federal government’s ability to withhold all Medicaid funding for states that fail to expand Medicaid coverage under the reform.)

Now, in the wake of the decision upholding the law’s so-called individual mandate, “The Republicans are committed to repealing the Affordable Care Act,” Ellwood said. The path to do that would be clear were they both to regain the presidency and take control of the House and Senate in the fall election, he added. Short of that development, it’s still “going to be very messy,” he predicted. The reform’s determined opponents will wage a long campaign to “strangle ACA—and in the process, they’ll make it very inefficient.”

Berkeley Law professor Jesse Choper, a constitutional law expert, said that one of the most significant implications of the high-court ruling is in limiting Congress’s power to “make all laws which shall be necessary and proper” for executing its enumerated powers. “It’s the first time in 100 years that the court has put an important limitation on the ‘necessary and proper’ clause,” he said.

Several panelists gave a nod to the law’s potential to significantly expand access to healthcare. But “whether or not the expanded coverage is going to be affordable in the long run, that is the central question now,” said Stephen Shortell, dean of public health.

The U.S. spends 18 percent of its GDP on healthcare, Shortell noted, “twice as much other countries that have better health statistics than we do.” And given our aging population and our technology-laden healthcare system, “this legislation will not reduce costs.” It could, however, help to slow the rate of growth for healthcare spending, he said.

Topping Shortell’s list of ways to bend the cost curve: changing our payment model for healthcare. “Fee-for-service,” he declared, “is toxic.”

“‘Obamacare’ is ‘Romneycare,’ ” said Brad DeLong, a political economist and influential blogger. As such, the federal law and the Massachusetts law share the same weaknesses, he said —including the absence of a public option and “handing a lot of market power to near monopolies,” in remote areas especially.

DeLong noted that when Romneycare was the signature policy of a Republican governor, not a single Republican office-holder objected—“yet every Republican officeholder objects to Obamacare.”

Berkeley Law lecturer and health law expert Ann O’Leary '05 said the Supreme Court, in last week’s 5-4 decision, may have found the law, in the main, constitutional, but wondered about the “political will” to implement it vigorously, even in blue states like California feeling the strain of healthcare costs.

Proponents of the reform law intended it to provide healthcare coverage for 32 million of the 50 million medically uninsured, she noted—17 million of them (largely low-income single men) via expansion of Medicaid coverage.

Now the Medicaid expansion has been declared optional, and many states—including Texas and Florida—are threatening not to participate.

Why, asked health law specialist Ann Marie Marciarille, did the court “take a whack at Medicaid? It’s always easy to take a whack at Medicaid.” Unlike pregnant women or the blind, who already qualify for assistance under the program, “poor single men are not in the classical sense the worthy poor,” she said. “We tinker with Medicaid for our own reasons relentlessly.”

Monday’s forum was sponsored by the School of Public Policy and the Robert Wood Johnson Scholars in Health Policy Research Program. Video of the event will be posted shortly on the UC Berkeley YouTube channel, as well as on UCTV Prime.