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ACA and the Supreme Court

I don’t know about the rest of you, but I had a sleepless night last night anticipating the Supreme Court’s decision in Florida v. HHS on the constitutionality of the Affordable Care Act. Memories of some extraordinarily bad Supreme Court decisions ran through my head.

The first was the Lochner case. In Lochner v. New York, 198 US 45 (1905) the Supreme Court struck down the state of New York’s effort to clean up the unsanitary conditions in bakeries and eliminate the nearly unlimited working hours that was the norm of the era and establish the 10-hour working day and 60-hour workweek. This was during the Progressive era of Theodore Roosevelt. Justice Holmes’ dissent was telling, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” – i.e. laissez-faire economic philosophies – “a constitution is not intended to embody a particular economic theory”. A follow up case was Adkins v. Children’s Hospital, 261 US 578 (1923) where the Supreme Court invalidated minimum wage laws.

The second was the Schechter case, also known as the sick chicken case. Schechter Poultry v. US, 295 US 495 (1935) involved a federal effort to clean up unsanitary conditions for consumers and employees in the poultry industry and to establish codes of fair competition in industrial settings. This was during the New Deal era of the Franklin Roosevelt. The court struck down the National Industrial Recovery Act on a 9-0 decision.

Two years later, the Supreme Court abandoned this line of constitutional decision making that substituted the Supreme Court majority’s economic preferences for the federal and state economic policies enacted by duly elected state and federal policy makers in a series of cases: West Coast Hotel v. Parrish, 300 US 379 (1937) upholding the minimum wage, NLRB v. Jones Laughlin Steel, 301 US 1 (1937) a Commerce Clause case upholding federal agency jurisdiction over labor organizing at a steel company, and Wickard v. Fillburn, 317 US 11 (1942), a Commerce Clause case upholding the 1937 Agricultural Adjustment Act.

The last was Plessy v. Ferguson, 163 US 537 (1896), which upheld “separate but equal” and constitutionally enshrined segregation practices, discrimination and oppression for half a century and more until over-turned by Brown v. Board of Education.

If the ACA is upheld as I expect,[1] 7 million uninsured Californians will soon have the opportunity to access medical care to the same degree as those with an insurance card in the their wallet and the United States will join every other developed country in offering universal coverage. If it is overturned, our century long struggle continues with a vastly improved understanding of those who have stood so adamantly blocking the doors of progress.

California, which is committed to and in the forefront of enacting these reforms, will need to forge its own destiny. California’s options include: a California fee or tax for individuals declining coverage, variant pricing for those who purchase timely and continuously versus those who seek to “time” their purchases to their need for health care, pre-existing condition exclusions for those who “time” their purchases, and reconsideration of alternatives such as the Garamendi plan, the Basic Health Plan option and single payer, which the ACA allows states to enact effective in 2016.[2]



[1] See Wulsin, A Guide to the Constitutional Challenges to the ACA (ITUP, March 2012) http://itup.org/legislation-policy/2012/03/26/itup-guide-to-the-constitutional-challenges-to-the-aca/ and Wulsin, Thoughts on the Individual Mandate (ITUP, September 2007) www.itup.org/Reports/UniversalCoverage/Thoughts_on_an_individual.pdf  and Wulsin and Dougherty, The Individual Mandate: a Background Report, (California Research Bureau, April 2009) at www.library.ca.gov/crb/09/09-007.pdf

[2] Ibid.

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