The New Republic

If the law takes effect, Obama will leave office in 2016 a very popular President with a major liberal accomplishment to his credit. The key question is whether the SCOTUS will kill the law or not. In the long run, private health insurance is wasteful, duplicative, and increasingly costly. The denouement of the health care issue in the US will come when the Fortune 500 want Medicare opened up to their employees as the cheapest option. I think that will come in the 2020's. When business wants Medicare for all, then the Republicans will roll over.

- nayyer_ali

September 14, 2011 at 11:44am

Nayyer, SCOTUS won't kill the whole law -- of the various lawsuits challenging the ACA, only one (the multi-state attorney generals' suit in Sarasota) successfully convinced the Federal judge to invalidate the whole law, rather than just the individual mandate. And that part of the decision was unanimously overturned by the 11th Circuit panel that otherwise held (by a 2-1 majority) that the mandate was unconstitutional. The upshot is that, while there may be five judges on SCOTUS who would vote against the mandate, it's highly unlikely that there is more than one judge (Thomas) who would overturn the entire ACA because it contains a mandate. The reason for the reluctance is both because, outside the mandate, most of the ACA is squarely constitutional based on long and detailed, recent precedent. Furthermore, over a century's worth of precedent supports the procedural argument that comprehensive Federal laws should not be overturned in their entirety if a limited part of that law is unconstitutional. Ignoring this sort of procedural argument is not likely to garner the votes of Chief Justice Roberts, Alito or Scalia, to say nothing of Kennedy (who may well decide that the mandate is constitutional and that the whole ACA is constitutional as well). Of course, many observers believe that eliminating the mandate would cause the whole ACA to collapse, as it would lead to a spike in health care premiums where healthy individuals forego insurance without a mandate but the sick enroll in health plans that can no longer turn them away. This is certainly possible, but there is a countervailing factor here -- the health insurance and hospital lobbies, who will fight to have Congress restore the mandate or something to that effect. Preserving mandated health insurance would allow health insurers to keep their profits (and hospitals to keep their patients) without running the risk of driving away patients with a sudden spike in premiums or fees. While invalidating the whole ACA could also protect insurers' and hospitals' profits by returning to the pre-ACA world where coverage could be freely denied or restricted for the sick or high-risk patient groups, the wholesale invalidation of the ACA would both run into a Presidential veto (if Obama is President) or a Democratic filibuster in the Senate (if he is not). In addition, it would be unpopular to the extent that it would bring back pre-existing conditions, rescission and all the other things that make health insurance one of Americans' least favorite industries. In other words, don't be surprised if President Romney, Speaker Cantor and Senate Majority Leader McConnell get on board for some kind of mandated health insurance (by another name and mechanism) due to the urging of their good friends at Wellpoint, Blue Cross and other such corporate citizens.

- wildboy

September 14, 2011 at 1:26pm

wildboy, you make a number of good points in your insightful analysis, but I still wonder about your optimistic scenarios. First, I don't doubt the capacity of this Supreme Court to go against precedent if it suits the members' political and ideological biases. Second, I'm likely missing something, but how could Congress restore mandates if the SC as ruled them unconstitutional? Finally, that health insurance is one of America's least favorite industries hasn't stopped it from working against reforms and hasn't stopped right-wing ideologues inside and outside Congress from railing against and fighting to roll back all sorts of reforms, facts and benefits be damned. So I very much hope you're right, but I have my doubts.

- Thunderroad

September 14, 2011 at 3:21pm

Jonathan: Any thoughts on the chances for coops, the poor man's public option, to get up and running in a significant way? Politico reported yesterday groups in 20 states plan to apply by next month for the $3.8 billion in funding for them provided by the ACA.

- ballston

September 14, 2011 at 4:02pm

Thunder, There are two considerations for the Supreme Court when dealing with the ACA -- first, whether to cast off Wickard v. Filburn and go back to the pre-New Deal Era in which the Commerce Clause was interpreted in more or less restrictive ways by the Supreme Court; and second, whether to throw out the whole law because one part is unconstitutional. There are many perils to the Court from following the first course, and as Jeffrey Rosen and others have pointed out, the judicial records of Roberts, Alito and Scalia don't point the way to a casual re-enstatement of a narrowly-interpreted Commerce Clause. The second course presents a whole other complication, as it would essentially allow courts to toss out complex legislation on the flimsy basis by determining that some parts are so integral to the whole that the law must be discarded. Unlike the first course -- in which there is a partisan and idealogical aspect, albeit one that could ephemeral for Republicans and conservatives -- the second course really has no specific partisan or idealogical angle. If the Supreme Court simply threw out the whole ACA because it concludes that the individual mandate violates the constitution, what would stop a future Supreme Court of liberals from doing the same thing with legislation favored by conservatives, such as the Patriot Act or the Military Commissions Act, school choice laws, laws encouraging adoption, etc? That sword cuts both ways, and intelligent Supreme Court justices -- of whom Roberts, Alito and Scalia certainly fit the category -- have to think about the future, not just the political passions of the present. As for the mandate, it would likely fall because it is not set up as a tax but as a requirement to buy insurance. Recall that the taxing power has been interpreted very broadly by conservative and liberal courts alike, and there has been no judicial equivalent of the Tea Party movement to undo the broad interpretation of the taxing power. Of course, politics being what they are will not allow a Republican-controlled Congress to pass any taxes, even if they benefit an industry with a heavy-duty lobby. So instead you would see things like a refundable tax credit being made available to taxpayers who have purchased health insurance but no such credit for those who do not, or a user fee imposed upon people who pay for medical services out-of-pocket or fail to pay a medical bill on time where they didn't purchase insurance from an exchange. There are lots of ways to slice this and make it constitutional so long as the requirement to buy insurance isn't independently mandated. As for the insurance industry, I think they would pursue this strategy instead of simply going back to the pre-ACA days because the latter course would raise public ire in a hurry and make lawmakers uncomfortable in voting to simply repeal the ACA. Republicans are happy to vote for repeal with a Democratic President because they know it's a protest vote, nothing more -- there are no consequences they would have to live with. If the Republicans have a President who would actually sign a repeal of the ACA, that's when things will get interesting.

- wildboy

September 14, 2011 at 4:20pm

Thanks for the thoughtful and partly convincing reply, wildboy. Even putting aside the poisonous politics of the issue, I do wonder about your points re Congress taking action to provide a viable substitute for the mandate should the SC rule it unconstitutional. A refundable tax credit, for example, would seem to fall well short of guaranteeing that most folks would buy into coverage, thus leaving us nearly back where we started in terms of many people (including low income citizens who most need the coverage but could least afford it) falling outside the system. Or am I missing something here? Again, though, I hope you're right!

- Thunderroad

September 14, 2011 at 4:34pm

Some good points above, however my understanding is that a severability clause was not written into the ACA, which means that if even one part of the law is unconstitutional the whole thing has to be tossed. Is that incorrect? Second, if the court were to invalidate the mandate and let the rest of the law stand, that would be more in keeping with Obama's original campaign stand, where he opposed Hilary's mandate. I agree that the insurance companies would scream enough to force the Republicans to reinstate it legislatively. In the end, it is a semantic argument, the law could have written in a tax of 300 dollars on everyone, married to a 300 dollar tax credit to anyone showing they have health insurance. That would be within Congress's taxing authority and avoided the whole "penalizing an inaction" argument.

- nayyer_ali

September 14, 2011 at 5:53pm

I'm a doctor, and because I take care of sick patients coming through emergency rooms I am forced to provide large amounts of free care by law (EMTALA, signed by Reagan in 1986). Where is the conservative outrage over that impingement on MY FREEDOM? What's interesting is how the Tea Party crowd was cheering on the death of an uninsured at the debate, but even Ron Paul couldn't bring himself to clearly state the moral implication of the Republican position.

- nayyer_ali

September 14, 2011 at 5:56pm

In addition to Thunder's insightful tax proposal, the same effect can be achieved by forbidding anyone who opts out of buying from the exchanges to opt in until some long amount of time, like two years, has passed, and only to be allowed to do so during annual open seasons. And one could also rescind EMTALA so everyone would have the "freedom" tp die if they chose to not participate. There are many other ways to fix it -- but whether one can even get a majority (never mind 60 votes in the Senate) to pass anything seems highly unlikely.

- krvogel49

September 15, 2011 at 11:42am

Nayyer, In response to your question about the lack of a severability clause in the ACA, that apparent oversight would not be fatal to the bill under rather long-standing Supreme Court precedent that allows Congressional legislation to stand even if some provisions of the legislation are individually unconstitutional. The key is whether the unconstitutional provision is so fundamental to the entire law that the law cannot possibly function without it, with lots of deference given to Congress on the question of how the law can function without a specific unconsitutional provision. This issue was considered in all District Court cases that have passed on the ACA's merits, as well as the 6th Circuit and 11th Circuit cases on the ACA (the recent 4th Circuit decision, which threw out Virginia's appeal on procedural grounds, did not deal with this issue). The general consensus of all courts except one was that the individual mandate was not the fundamental part of the law, and that other provisions of the law (such as setting up exchanges, expanding Medicaid eligibility, changes to Medicare, additional taxes, etc) could stand even if the individual mandate was unconstitutional. The one exception was Judge Vinson in the Northern District of Florida, who concluded that the unconstitutional individual mandate invalidated the whole ACA but then issued an injunction that allowed the government to continue to implement the ACA while his decision was appealed. The 11th Circuit panel that upheld his holding on the consitutionality of the individual mandate also unanimously overruled his conclusion that the whole ACA depended upon the mandate as a fundamental provision. I would fully expect at least seven Supreme Court justices (all the liberals plus Robers, Alito and Kennedy) to rule this way even if five justices decide the individual mandate is unconstitutional. One interesting development on this issue is that it's possible to strike down the individual mandate and also invalidate the restrictions on insurance company discrimination in the ACA, such as bans on rescission, lifetime caps and pre-existing conditions. This is what happened in a decision issued yesterday by a judge in the Middle District of PA, who otherwise upheld the constitutionality of other parts of the ACA. His reasoning was that the individual mandate was fundamental to those provisions functioning the way they are supposed to, in order to control costs. I think his reasoning is utterly flawed, and it's likely that he will be overruled by the Third Circuit (assuming the government takes the appeal, rather than simply proceeding to the Supreme Court on the other ACA suits). But a decision that also repealed restrictions on insurance company discrimination would be a magical result for the health insurance industry, as it would guarantee their profits as they are currently being collected and would insulate the industry from voter anger that would come its way from lobbying Congress to re-institute discriminatory practices. If were them, I would not bet on this.

- wildboy

September 15, 2011 at 1:58pm