Pouring over the entrails
Like ancient soothsayers seeking to read the future from the condition of the liver of an animal sacrifice, the political and policy addicts are picking through the transcripts of the oral arguments at the Supreme Court trying to guess what the justices will do and when they will do it. Of course, no one really knows what will happen and that makes everyone an expert. The truth is the basic dynamic remains the same after the oral arguments as it was before them: If the Supreme Court’s conservative justices make a decision based on their political inclinations, the ACA will be struck down in part or in total. If they decide on the merits, it will be upheld (probably by a 6-3 margin).

Did the oral arguments give any clues to which way the justices are leaning? Yes and no. There do appear to be two to three votes to strike the entire law and four to uphold. Justice Scalia, who some observers thought could vote to uphold based on his previous decisions and the fact that one of his former clerks, now a federal judge, voted to uphold the ACA at the 6th Circuit, now appears unlikely to do so. In fact, Scalia’s comment that the problem of cost shifting from the uninsured could be solved by allowing hospitals to turn away emergency cases based on patients’ inability to pay, was one of the most chilling moments in the proceedings.

The two justices hardest to predict in this instance—Kennedy and Roberts—seem to me to be unlikely to vote for a total take down on a 5-4 vote, but that is just a hunch.

Here’s another gut feeling for what it is worth (not much, admittedly): While most observers expect a decision to come down in June, the court could issue a decision sooner. An early decision is more likely to be a bad one, i.e. if they are going to take down the whole law, it doesn’t make sense to wait until June. So buckle up for the next few weeks because time is on our side (I think).

The House Republican Budget (AKA the Ryan plan)–it’s worse than you think
While the eyes of the health care world were trained on the Supreme Court, a health care dystopia emerged from the House of Representatives and was quickly embraced by candidate (soon to be presidential nominee) Mitt Romney. If this budget becomes law, it would create a health care revolution, and not in a good way. The budget blueprint is really the same old same old Robin Hood in reverse—tax cuts for the rich and benefit cuts for everyone else—that Ryan and company offered up last year. Among the “highlights” it would:

• • Repeal all of the insurance reforms and coverage expansions in the Affordable Care Act (elimination of pre-existing condition exclusions, preventing insurers from charging women more than men for health insurance, tax credits for individuals and small businesses) while keeping all of the spending reductions in the law (the very same spending reductions that Republicans have campaigned against).
• • Shift thousands of dollars in health care costs onto Medicare beneficiaries.
• • Block grant the Medicaid program, shifting billions in new costs onto states, while giving them the green light to cut eligibility and benefits.
• • Proposes the virtual elimination of federal spending on all programs other than Social Security, Medicare, Medicaid and the military.

Think I am exaggerating? Check this out (emphasis added):

“The C.B.O. analysis of Ryan’s plan finds that by 2050, all the government’s discretionary spending, including defense, would represent just 3.75 percent of G.D.P. Given that defense spending in the postwar era has never been less than three percent of G.D.P., and that Republicans won’t consider cutting it, the rest of the government’s discretionary spending would have to be squeezed out of that remaining 0.75 percent. This is a derisory number—in the entire postwar era, it has never been less than eight percent. In practical terms it would make most of what the federal government does—from maintaining infrastructure to air-traffic control and environmental regulation to crime fighting—unaffordable. Ryan’s path to prosperity, in other words, is a path that ends with the federal government spending its money on health care, Social Security, and the military, and little else.”

OK, pretty bad you might think. But, as the TV pitchmen say, wait, there’s more. All of these bad things would occur if the budget did what its authors want you to believe it does. But it doesn’t. Specifically, the budget documents assume that massive tax cuts for the wealthy and for corporations will be offset by closing unspecified tax loopholes, but they won’t be.

The fact that the loophole closures are not specified should set off alarm bells. The reason they are not spelled out is that making up for the lost revenue would require massive changes in the main exclusions that benefit middle class Americans–the tax treatment of health insurance and home mortgage interest. Eliminating those tax benefits for the middle class would be wildly unpopular, so Republican budget writers (and endorsers) are trying to avoid talking about it. There is also great doubt as to whether they could ever actually do it.

The more likely alternative would be either continued deficits—savage program cuts to pay for tax breaks for the wealthy without even the poor excuse of deficit reduction—or even more savage cuts, beyond what is intimated in the budget, in order to hit the deficit targets. Since almost everything else has already been eliminated if you take the budget at face value, this translates down to even more cuts in health care.

There’s probably a better word than “marvelous” to describe this.

Replace: It Don’t Come Easy
Buoyed by the tough questioning by Supreme Court justices, Republican lawmakers are already anticipating the demise of the ACA. This is creating renewed interest in the “replace” side of the repeal and replace mantra. But attacking the ACA has always been easier than offering an alternative vision. There is a reason they have made so little headway on replace in the two years since the ACA passed, and the problem isn’t going to go away. (In fact, if they get their wish and the Court strikes the ACA, it will land right in their laps.)

Their problem is this: all the Republican ideas that actually work to reduce the number of uninsured and lower health care costs—such as tax credits to make private coverage more affordable, competitive insurance marketplaces and an individual responsibility to purchase coverage if it is affordable—are already in the ACA. The ones that are left on the table—like capping damages in malpractice cases and allowing insurers to sell policies across state lines—do little or nothing to expand coverage or reduce costs.

Not only that, but there are signs that their hostility to the ACA, which includes important benefits for women such as free access to contraception and elimination of gender rating, is hurting them at the polls.

The only other arrow left in their quiver is to reduce federal health spending by shifting more costs onto everyone else. (See it’s worse than you think.) By rejecting the moderate Republicanism, which is what the ACA really is, the GOP has backed itself into a corner. They have been at least somewhat successful at using demagoguery to demonize the ACA, but as soon as they have to put their own ideas on the table, they will find that the public likes them even less.

– Michael Miller, Director of Strategic Policy