What to Expect at 10 a.m.

by Jonathan Cohn | June 28, 2012

And now we wait.

The Supreme Court convenes at 10 a.m. The justices have two other decisions to deliver, so they might not get to the health care case until 10:15 or so. Even then, the ruling and its effects may not be immediately clear. The Court must effectively address four separate questions and the justices may write multiple decisions.

The whole world will be logging onto SCOTUSblog, which will have a liveblog to break the news and tonight posted a summary of the questions before the court. Those questions are:

1. Does the Anti-Injunction Act of 1867, which prohibits challenges to new taxes until the government has begun collecting them, prevent the Supreme Court from hearing this case?

2. If the Anti-Injunction Act does not apply, is the individual mandate constitutional? In other words, is it a valid use of the federal government’s power to tax, to regulate interstate commerce, and/or to do what is “necessary and proper” for fulfilling its duties?

3. If the mandate is not constitutional, what (if any) other parts of the law are invalid? Can the regulations on insurance companies still stand? What about other parts of the law designed to make insurance more available? What about provisions that address less closely related matters?

4. Is the expansion of Medicaid coercive, and thus unconstitutional, because states have no choice but to comply with the federal government’s terms?

As for the most likely outcomes, I outlined them the other day. Here’s an updated version:

Uphold the law. A majority could simply embrace the government’s arguments. Or the justices could reach the same conclusion in different ways—most likely, with one or two conservatives, most likely Chief Justice John Roberts and Justice Anthony Kennedy, upholding the law only under the government’s taxing power. In so doing, the two conservatives could join the other Republican appointees in signaling new skepticism of the Commerce Clause. They could also tweak President Obama and Democrats for enacting a tax while describing it as something else. But the bottom line for policy would be unambiguous: Reform moves forward, as planned. 

Strike the mandate, but keep the financial penalty. Functionally this wouldn’t be much different than upholding the law. According to most experts, one reason the mandate works is that it has a psychological effect: People want to comply. A decision to strike the mandate, even if largely symbolic, would weaken that affect. But it would likely do so modestly. Overall, the impact of the law would likely be the same as it would be otherwise: The uninsured would get insurance, the insured would get security. That's exactly what the law's sponsors have hoped would happen.

Strike the mandate and the penalty, but keep the insurance reforms. One more time, such a ruling would not destroy the law. Such a ruling would merely weaken the law—and by how much is the subject of some debate. 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). But members of the non-elderly middle class who can't find insurance now would end up seeing very little improvement.

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.

The list is order of best to worst, not most likely to least likely. And I left out other, more far-fetched scenarios—like declining to rule, because of the Anti-Injunction Act, or ruling on the mandate but remanding questions about the rest of the law to lower courts.

Predictions? Sorry, not from me. I'm a bit more optimistic than I was a few days ago, largely because the Arizona immigration decision included some favorable portents. But anything could happen. 

I'll just have to wait and see, like the rest of you.

Note: Watch both this blog and the @CitizenCohn twitter feed for news of the ruling as soon as it's available and we're able to digest it.

Source URL: http://www.newrepublic.com//article/104442/what-expect-10-am