JUNE 18, 2012
[Updated at 10:30 a.m.]
The Supreme Court handed down four rulings on Monday—and said nothing about the Affordable Care Act.
The Court will likely have more decisions to issue on Thursday, although that's not yet certain. But the justices may not issue a ruling on the Affordable Care Act until next Monday, their final pre-scheduled session of the term. And even next Monday isn't a hard deadline. The justices could always add more decision days next week, particularly since they still have several major rulings to deliver before the term ends.
When the verdict does come, don’t be surprised if the outcome and implications are not instantly clear. The Court could issue multiple opinions, with different justices ruling to uphold or strike down different parts of the law. When the Supreme Court decided Bush v. Gore in 2000, analysts needed several minutes to figure out both what the majority was ruling and what that meant for the presidential election. The same thing could happen this time.
More important, this is a complicated case with multiple questions to answer: Is the mandate constitutional? Is the expansion of Medicaid constitutional? If either one is not constitutional, what other parts of the law, if any, may survive? An intriguing, if very thinly sourced, report from Avik Roy in Forbes suggests the justices are still arguing over that last question, which is known as "severability." A solitary sentence in a recent speech from Justice Ruth Bader Ginsburg also hinted at that.
Grasping at straws? You bet. But straws are all we have right now. In the meantime, here’s a quick rundown of the most likely scenarios:
Uphold the entire law: If you believe in health care reform, as I do, this is obviously the best outcome. And it remains a very credible one. Remember, two very conservative judges at the appellate level found the law to be constitutional, despite tough questioning during oral arguments.
Strike the mandate, keep everything else, including the penalty: This would be a moral victory for the critics and it would, quite possibly, limit federal power for generations to come. But it would probably do very little damage to the law itself. The financial incentives for obtaining and declining insurance would remain in place. So would the requirements that insurers cover all people, regardless of pre-existing condition. So would the subsidies making it possible to lower- and middle-income people to pay for coverage. If Justices Roberts and Kennedy want to have their cake and eat it too—to issue a major ruling with long-lasting doctrinal effects, but in a way that doesn't look like a naked usurpation of legislative authority—this is the way to do it.
Strike the mandate and the penalty, keep everything else. I keep reading that this would be equivalent to gutting the law. That is very, very wrong. Such a ruling would significantly weaken the law: Many fewer people would get insurance, at least initially, and individual insurance premiums would be higher. But middle-class people buying coverage on their own would basically pay the same as they would if the mandate stayed in place, because of the way the subsidies work. (People who get coverage through employers or through Medicaid would also fare the same.) No less important, people with pre-existing conditions would have access to comprehensive coverage, something they don't have now, because the regulations on insurers would remain in place. Overall, the law would still bring coverage to between 10 and 20 million people, according to the projections, and the deficit would actually end up slightly lower. In the future, state and federal lawmakers could bolster the law by thinking up alternatives to the mandate, or versions designed to meet the Supreme Court’s legal criteria.
Strike the mandate, the penalty, the insurance reforms, but keep everything else. This would be a lot more devastating. The dysfunctional insurance market would remain. Insurers could still charge higher premiums, or deny coverage altogether, to people who represent medical risks. One question is what happens to the law’s subsidies: If the Court let those stand, people could still be eligible for them, although it’s not clear (to me) how that would work if the rest of the insurance reforms don't stay in place. On the bright side, the expansion of Medicaid would effectively guarantee insurance to everybody making less than 133 percent of the poverty line. We'd have universal coverage for the very poor and for the old (thanks to Medicare). The non-elderly middle class would be the ones left out.
Strike the whole law—in other words, keep nothing. This is as bad as it sounds. Thirty million people lose health insurance they were supposed to get. People who would have had insurance anyway lose consumer protections and guarantees of minimum benefits. The deficit goes up, according to projections. Incentives to make the health care system safer and more efficient disappear.
This list is not exhaustive. The Court could decide that it can't decide the case until the law is in place and somebody can allege actual harm. The Court could also make a ruling on one part of the law and then "remand" the case to a lower court to sort out the rest. Those outcomes, and other permutations I've heard, seem far less likely, at least according to the experts I've consulted. But this is the Supreme Court. The justices can do pretty much what they want.
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