NFIB Sebelius Dissent

17 Oct

 

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The actual cost of the regulations and taxes may be
more or less than predicted. What is known, however, is
that severing other provisions from the Individual Man-
date and Medicaid Expansion necessarily would impose
significant risks and real uncertainties on insurance com-
panies, their customers, all other major actors in the sys-
tem, and the government treasury. And what also is
known is this: Unnecessary risks and avoidable uncertain-
ties are hostile to economic progress and fiscal stability
and thus to the safety and welfare of the Nation and the
Nation’s freedom.  If those risks and uncertainties are to
be imposed, it must not be by the Judiciary.

b
Reductions in Reimbursements to Hospitals and
Other Reductions in Medicare Expenditures

 The Affordable Care Act reduces payments by the Fed-
eral Government to hospitals by more than $200 billion
over 10 years.  See 42 U. S. C. §1395ww(b)(3)(B)(xi)-–(xii)
(2006 ed., Supp. IV); §1395ww(q); §1395ww(r); §1396r-–
4(f)(7).

  The concept is straightforward: Near-universal coverage
will reduce uncompensated care, which will increase hos-
pitals’’ revenues, which will offset the government’’s re-
ductions in Medicare and Medicaid reimbursements to
hospitals. Responsibility will be shared, as burdens and
benefits balance each other. This is typical of the whole
dynamic of the Act.

 Invalidating the key mechanisms for expanding insur-
ance coverage, such as community rating and the Medi-
caid Expansion, without invalidating the reductions in
Medicare and Medicaid, distorts the ACA’’s design of
““shared responsibility.”” Some hospitals may be forced to
raise the cost of care in order to offset the reductions in
reimbursements, which could raise the cost of insurance
premiums, in contravention of the Act’s goal of “”lower[ing]

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health insurance premiums.””  42 U. S. C. §18091(2)(F)
(2006 ed., Supp. IV).  See also §18091(2)(I) (goal of
““lower[ing] health insurance premiums””); §18091(2)(J)
(same). Other hospitals, particularly safety-net hospitals that
serve a large number of uninsured patients, may be forced
to shut down. Cf. National Assn. of Public Hospitals, 2009
Annual Survey: Safety Net Hospitals and Health Systems
Fulfill Mission in Uncertain Times 5–-6 (Feb. 2011).  Like
the effect of preserving the insurance regulations and
taxes, the precise degree of risk to hospitals is unknow-
able. It is not the proper role of the Court, by severing
part of a statute and allowing the rest to stand, to impose
unknowable risks that Congress could neither measure
nor predict.  And Congress could not have intended that
result in any event.

 There is a second, independent reason why the reduc-
tions in reimbursements to hospitals and the ACA’’s other
Medicare cuts must be invalidated.  The ACA’’s $455 bil-
lion in Medicare and Medicaid savings offset the $434-
billion cost of the Medicaid Expansion.  See CBO Esti-
mate, Table 2 (Mar. 20, 2010). The reductions allowed
Congress to find that the ACA “”will reduce the Federal
deficit between 2010 and 2019″” and ““will continue to
reduce budget deficits after 2019.””  ACA §§1563(a)(1), (2),
124 Stat. 270.

  That finding was critical to the ACA.  The Act’’s ““shared
responsibility”” concept extends to the federal budget.
Congress chose to offset new federal expenditures with
budget cuts and tax increases.  That is why the United
States has explained in the course of this litigation that
““[w]hen Congress passed the ACA, it was careful to ensure
that any increased spending, including on Medicaid, was
offset by other revenue-raising and cost-saving provi-
sions.”” Memorandum in  Support of Government’’s Motion
for Summary Judgment in No. 3–-10–-cv-–91, p. 41.

  If the Medicare and Medicaid reductions would no longer

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