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A Hell of a Way to Run a Country—Full Speed, Traveling in Different Directions

Mark Trahant
8/16/11

It’s a hell of a way to run a country.

Last week a federal appeals court ruled at least one major provision of the the Affordable Care Act is unconstitutional. And, at the same time, a congressional Super Committee, led by members who are divided over spending, taxes and basically a vision for the country, will try to reach a deal in the next few months to cut at least $1.2 trillion from federal spending. And, at the same time, the Obama administration is moving forward with provisions under the Affordable Care Act, awarding some $185 million to states and the District of Columbia to build insurance exchanges. And, again, at the same time, while the law calls for a major expansion of Medicaid, states are cutting back that same program.

Four major health policy alternatives are all moving on separate tracks, in different directions.

The Indian Health system is feeling that pull. How does a tribal government plan ahead? There’s no way to know which direction will ultimately be the course. Imagine taking a trip where the operators are continually switching direction. Go North, no South, no East, now West. Even a kid wouldn’t know better than to ask, “are we there yet?”

The good news for those who support the Indian Health Care Improvement Act is that a panel of the Court of Appeals for the 11th Circuit last week did not strike down the entire Affordable Care Act, only the provision that required Americans to buy mandatory insurance. Indeed, the decision is fascinating because it focuses on whether the mandate is a tax or a penalty. “Even on the government’s own terms, the individual mandate does not in ‘practical operation’ act as a tax,” the court said. Of course, this is particularly complicated for American Indians and Alaska Natives. We are, supposedly, subject to the individual mandate to buy health care, but are exempt from the penalty (see "Affordable Care Act Indian Health Provisions Summary," PDF).

The ruling last week, of course, is not final. There are two possible routes ahead. First, the Obama Administration could ask for another review from the 11th Circuit with all twelve judges participating. Or, the administration could ask the Supreme Court to hear the case. My bet is they seek an appeals court review first, because that would delay a decision until after the 2012 elections.

Another interesting twist on the 11th circuit’s ruling is that it says the entire law is not unconstitutional. It rejects the states’ argument that Medicaid expansion went too far. The Affordable Care Act expands coverage to adults under age 65 and children in families with incomes up to 133 percent of the federal poverty level. It also increases Medicaid payments for primary care services. State are required to abide by the new coverage, or risk losing the federal share of Medicaid payments.

I like the language of this decision because it reminds states that Medicaid is a voluntary program. States don’t have to buy-in. It’s optional. Or, as the court said, “Medicaid-participating states were warned from the beginning of the Medicaid program that Congress reserved the right to make changes to the program.” And the court pointed out that the federal government will pay most of the costs of expansion.

Of course the fight over money is also pulling in a very different direction from the Affordable Care Act. States are looking for ways to cut services, trim enrollment eligibility, even when the programs are fully covered by the federal government (such as those in the Indian health system).

But this comes back to questions of governance. Congress and the states are looking for ways to strip funding for a Medicaid program that under current law is expanding. States have a trump card: They can quit Medicaid. But no state wants to do that because that alternative is far more expensive.

So how do we bring together these four very different visions into a single plan? Despite the bluster on the Republican campaign trail, where every candidate pledges to repeal and replace Obama Care, there are simply not enough votes to do that. Perhaps after the 2012 elections. Or not.

For now we’re stuck riding the rails in every direction. At full speed. Like I said, it’s a hell of a way to run a country.

Mark Trahant is a writer, speaker and Twitter poet. He is a member of the Shoshone-Bannock Tribes and lives in Fort Hall, Idaho. Trahant’s recent book, The Last Great Battle of the Indian Wars, is the story of Sen. Henry Jackson and Forrest Gerard.

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