CPR’s short and misleading report on the health care cases


Author: Timothy Sandefur

Capital Public Radio’s John Sepulvado has a brief report here (reprinted here) about the Obamacare lawsuits that misrepresents my actual comments and inaccurately says that if Obamacare is overturned California would “lose billions of federal dollars.” We’ll take the second point first.

California already stands to lose billions of dollars in federal reimbursement for Medicare and Medicaid. The new health care law contemplates requiring all of the states to add to these programs a huge class of people who are not currently eligible for them. The federal government then is supposed to scale back its funding for these programs, leaving the states holding the bill. (That’s one of the major arguments made in the Florida, Arizona, and Missouri lawsuits.) As Cato’s Michael Tanner writes,

[Under Obamacare], states are required to expand their Medicaid programs to cover all U.S. citizens with incomes below 133 percent of the poverty level…. Initially, the federal government will pay 100 percent of the cost for new enrollees. However, beginning in 2017, states will be required to pick up a portion of the cost: 5 percent of the cost in 2017, gradually increasing to 10 percent by 2020. States will also receive a slight (0.15 percent) increase in the federal match toward coverage of existing Medicaid recipients. The impact on state budgets would vary dramatically. The biggest losers in terms of total dollars would be California, whose Medicaid costs would increase by nearly $5 billion between 2014 and 2019, and Texas, whose costs would rise by nearly $4.5 billion.

Although Sepulvado writes as though invalidating the new health insurance law would cost Californians money, it’s actually the reverse: Obamacare costs Californians—and all Americans—incalcuable amounts of money. Money that cannot be measured in mere billions and trillions, but can be measured only in scads, loads, heaps, buckets, or oodles.

The second inaccuracy in Sepulvado’s report is here: “Timothy Sandefur is with the conservative [sic] Pacific Legal Foundation. He says the federal government could win out in the Supreme Court if the individual mandate is seen as a small regulation made for the greater good. ‘On the other hand, if this is presented as a violation of individual rights that dramatically undoes the Constitutions protections against extensive government, there’s a better chance for the plaintiff’s [sic] to win,’ Sandefur says.”

What I actually said came in response to a question about Justice Anthony Kennedy; I said that on one hand, Justice Kennedy tends to accept the constitutionality of regulations that are part of broader, overall regulatory schemes, and that this might move him in the direction of upholding the Individual Mandate (the provision of the new law that forces everyone to buy insurance)—while on the other hand, he also tends to favor federalism, and if he sees this law as a violation of individual freedom that dramatically alters the federalist structure, he might rule against it. Mr. Sepulvado spins this in a way to make it look like I was talking about some sort of clever marketing plan, when I was actually trying the fun, but always rather silly, game of predicting how a Supreme Court Justice might decide a case.