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With passage of health bill, opponents may challenge bill's constitutionality, expanded Medicaid

This article first appeared in the St. Louis Beacon, March 22, 2010 - A constitutional showdown over federal mandates and higher Medicaid bills for states may be among the long-term consequences of the U.S. House's approval of the bill to extend coverage to the uninsured, experts in Missouri say.

While many people have cited the benefits of the legislation, others say it won't come without lingering controversy over issues that won't be felt or settled for years. One is the law's health-insurance mandate, which would impose a fee, ranging from $95 to $695, on people who are able to afford insurance but refuse to buy it.

Dave Roland, a policy analyst at the Show-Me Institute, says a number of states (including Missouri) have put a constitutional showdown into motion. At least 33 states have pending (or have already adopted) resolutions or state constitutional amendments challenging the federal requirement that their citizens buy health insurance.

By a vote of 109-46 last week, the Missouri House approved the so-called Health Care Freedom Act. The issue, pending in the Senate, would propose a constitutional amendment to exempt individuals and health providers from a mandate to participate in any health care system.

"This means that there's going to be a constitutional showdown between the Supreme Court and Congress and the president," Roland predicts. "The court has to decide whether Congress has the authority to tell individual citizens that they must purchase a product or service they do not want."

He says the issue boils down to this: If Congress can force individual citizens to buy something they don't want, the question becomes, "Where is the end of Congress' power? What can't Congress do?"

Roland notes the four solid conservative votes on the High Court with Justice Anthony Kennedy serving as the swing vote. But he adds that this court has been known to reverse precedent, and that the health mandate doesn't take effect until 2014. This means many things on the legal or political landscape could change by then, Roland says.


The Missouri Budget Project, a non-profit public policy organization, rejects the notion that the bill might be unconstitutional. "Federal health-care reform, including requiring individuals to purchase health insurance, is constitutional under the supremacy and commerce clauses," the group has said. "Putting (a proposed state constitutional amendment) on the ballot will lead to costly legal battles that will needlessly waste the state's limited financial resources."

Bob Quinn, executive director of the Missouri Association for Social Welfare in Jefferson City, agrees. In an interview with the Beacon last week, he said he was disturbed by the "underlying notion that the state has some sort of constitutional enforceable right to place itself between the decisions of the elected federal Congress" and the public. Quinn can't see the logic in a constitutional fight. "It's going to cost us. We're just absolutely broke. We don't have money to keep lights on at the Capitol. But we're going to be investing money defending all sorts of lawsuits" over the constitutionality of a federal mandate.

But money was the reason Rep. Ron Casey, D-Crystal City, said he voted for the Missouri House bill. "Unfunded federal mandates irk me," Casey told the Beacon last week. "If you're going to mandate that we do it, then send us the money and let us do it."


Casey's sentiment about unfunded federal requirements carries over to another states-rights concern: Expanded Medicaid coverage. Medicaid, health insurance for the poor, is financed by both the state and federal governments. While President Barack Obama and Democrats say the legislation would shrink the federal deficit in the next two decades, Republicans have argued that the law might have the opposite effect. Expanding Medicaid will increase overall costs, they say.

The legislation will extend Medicaid to households with incomes of up to 133 percent of the poverty level. For a family of four, that's just over $29,000 -- or roughly $2,444 a month. This issue is certain to generate lots of debate in Jefferson City, where lawmakers already are struggling with Medicaid spending, and where Gov. Jay Nixon has suggested that the program be reduced by $120 million to help balance the next budget.

The political debate is certain to sharpen in future years when the new federal Medicaid rules take effect. In 2014, the law would expand Medicaid eligibility to all children, parents and childless adults whose incomes do not exceed 133 percent of the poverty level.

Lt. Gov. Peter Kinder was adamant in his condemnation of the then-proposed health-reform plan when he spoke to a crowd at the St. Charles Convention Center hours before Obama's visit to Missouri on March 10. He said the health-reform bill would be "shrinking our freedom and an assault on our (state) sovereignty... wrecking Missouri's budget."

Ruth Ehresman, director of health and budget policy for the Missouri Budget Project, concedes that Missouri would have to spend more for Medicaid under the new federal legislation. But she stresses that state spending in Missouri and elsewhere would be offset by new federal help.

"Our Medicaid eligibility is one of the lowest in the United States," she says, "so there will be many, many more who will be covered under our Medicaid program. That will cost the state additional money."

But she notes that the federal government will pay 100 percent of the cost for the newly eligible Medicaid individuals up through 2016, and cover 95 percent of the additional costs until 2020.

This time frame, she says, "will give the state government a lot of lead time to figure out ways to pay its portion. It's going to cost the state a bit more, but the federal government is picking up the lion's share of the cost."

Critics should consider what would happen if Congress had not acted, she says. "Things were not going to get better by leaving them alone. We know that insurance premiums are growing four times as fast as wages. We could have expected nothing more than continuing bad news."

Ehresman says the health crisis is "too big to be solved by any individual state alone, especially in a state like Missouri that doesn't have the political will to change the rules that insurance companies use. It's important that we do this together."


In a telephone conference call with reporters this afternoon, Health and Human Services Secretary Kathleen Sebelius also noted that Medicaid expansion wouldn't begin until 2014, and she tried to ease state concerns about the impact of that part of the legislation and opting out of the legislation altogether.

"I know there has been some discussion about states not wanting to participate in setting up an exchange and Medicaid expansions," she said. "But I'm hopeful once they fully understand what's in the bill, the fact that the federal government is going to cover 100 percent of the cost of Medicaid expansion for the first number of years, that they will be enthusiastic about this plan."

She said the expansion amounted to a "state-based strategy that stands on the work that a lot of states have already done. A number of states are ahead of the federal government (in expanding Medicaid), and have exceeded the target of this bill. Having affordable insurance coverage for all Americans is kind of a win-win situation."

Funding for health reporting is provided in part by The Missouri Foundation for Health, a philanthropic organization whose vision is to improve the health of the people in the communities it serves.

Robert Joiner has carved a niche in providing informed reporting about a range of medical issues. He won a Dennis A. Hunt Journalism Award for the Beacon’s "Worlds Apart" series on health-care disparities. His journalism experience includes working at the St. Louis American and the St. Louis Post-Dispatch, where he was a beat reporter, wire editor, editorial writer, columnist, and member of the Washington bureau.