The Supreme Court is very unlikely to strike down the Affordable Care Act. Several of the most conservative justices have joined or authored opinions that are wholly inconsistent with meritless arguments against health reform. And, while the Roberts Court shows no lack of enthusiasm for cutting back people’s rights, they typically do not do so through sweeping, headline-earning constitutional decisions.
Instead, the Supreme Court’s conservatives typically push their agenda through the kind of hypertechnical procedural cases that rarely receive much attention, but which can leave millions of Americans defenseless against powerful corporations or overreaching states. The single most important case last Supreme Court term, for example, wasn’t the high-profile funeral protest or violent video games cases. It wasn’t even the decision immunizing Walmart from a massive class action. No, it was a lawsuit alleging that a cell phone company cheated its customers out of a mere $30. The Supreme Court took that $30 trick, and used it to effectively eliminate all class action lawsuits brought by workers or consumers against wealthy and well-lawyered corporations. Moreover, this decision built upon a long line of decisions enabling corporations to force ordinary Americans into privatized corporate-owned arbitration system that overwhelmingly favors corporate parties.
There are, of course, exceptions to this rule, such as the egregious Citizens United case, but the Roberts Court typically operates by creating opaque procedural barriers that shield the wealthy and the well-connected from lawsuits — they are much less prone to make substantive changes to constitutional law.
Which is why Court watchers wondering if the justices will cut back on Americans’ access to health care should pay less attention to the Affordable Care Act case and much more attention to a low-profile argument that will be held today. The specific legal issue at stake in Douglas v. Independent Living Center would even confuse most lawyers, but the short of it is this:
The federal government frequently enters into partnerships with the states where the feds where the state agrees to set up a program to help its citizens and the feds agree to put up much of the money necessary to keep this program running. Medicaid, the low-income health care program, is the largest and most well-known example of this kind of federal/state partnership. When a state agrees to participate in Medicaid, they must also agree to comply with the network of federal laws governing the Medicaid program, including a requirement that the state’s Medicaid program pays health providers enough to “ensure that enough providers will participate in the Medicaid program so that patients will have meaningful health care access.” Like any law, however, this requirement means nothing if it can’t actually be enforced.
About a decade ago, the Supreme Court started making it harder for private parties to hold states accountable in court if the state doesn’t comply with Medicaid and other federal laws. Douglas will likely complete this process, effectively making it impossible for individuals to sue states that fail to provide adequate access to health care.
If this happens, the short term effect will be that only the Obama Administration will have the power to enforce key provisions of the Medicaid law — and patients and health providers will just have to trust that Obama’s team does an adequate job of enforcing the law. That may not seem so bad, but what happens if the Obama Administration gets replaced with the Perry Administration or the Palin Administration or the Ryan Administration or some other administration that is actively hostile to enforcing the Medicaid laws? If a future Administration shows no interest in enforcing the Medicaid statute, then entire provisions of law could effectively cease to exist until a more progressive president is elected.
This is why Douglas will probably be the most important health care case argued this term. It is exactly the kind of case that the Roberts Court tends to use to keep individuals out of court, it could lead to millions of Americans losing access to Medicaid at some point in the future, and it will do so in such a complex and hypertechnical way that few people will notice when it happens.