The Supreme Court will most likely issue a decision on Thursday that will leave a mess behind. I doubt there will be a clean decision—up or down—it’s far more likely that court will focus on the most narrow of issues. Then the political process can sort out what’s left standing.
Consider one real problem for the Court: Many of the provisions of the Indian Health Care Act have already been implemented by the Indian Health Service. The Affordable Care Act makes the Indian Health Care Improvement Act, first enacted in 1976, as permanent. This is important because the reauthorization has been wrapped up in partisan politics.
Remember that most the general provisions of the Affordable Care Act are waiting for the 2014 deadline for minimum coverage (the so-called mandate). But American Indians and Alaska Natives are exempt from that, so the Indian Health Service has been free to implement the law.
Another part of the law that impacts Indian country: The provision that says tribes can purchase insurance for individual members without tax consequences. The IRS has rules that required tribes to report these purchases as income—even though they represented coverage that was purchased because of inadequate IHS funding.
In a friend-of-the-court briefing filed by the National Indian Health Board:
If this court declares the minimum coverage provision unconstitutional, there may be legitimate questions whether it is integral to implementation of certain other provisions included in the ACA. But there can be no question about the fact that the IHCIA and other Indian-specific provisions are distinct from the controversial minimum coverage provision and related insurance industry reforms included in the ACA.
I also think it’s important to pull back and think about the big picture. The cost of health care is the budget deficit. We fix this one issue and the rest of the annual deficits will melt away. But to get there we have to take a number of difficult steps requiring consensus. The Affordable Care Act is only a beginning, not an end. If the law is upheld, we have more work to do. As I wrote in January: This should be the only election issue for 2012. It’s that critical to get right.
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.