As the Supreme Court ended oral arguments on the Affordable Care Act, addressing whether the law can stand alone without the individual mandate, the press coverage was dominated by speculation. Justices speculated about the questions put before them, and the media speculated on the likely outcome if the mandate doesn’t survive. The Washington Post summed it up this way:
Before this week’s arguments, many lawyers who practice before the court said privately that they thought the court’s precedents indicated that the Obama administration would emerge the victor. And the court’s four liberal justices showed themselves to be comfortable with the assertion of federal power in the law. But there was deep skepticism among the conservatives.
Indeed, there was much skepticism in the Court about the law’s central feature, which would require everyone to carry health insurance. Wednesday the government argued that if the mandate is struck down, the rest of law, which includes some limited cost containment measures and requires insurers to cover young adults under their parents’ policies, should go as well. The 26 states that have challenged the law also agree that the entire law must fall. On this issue, as on the mandate, the court appeared ideologically divided, and media stories reflected that division.
Reuters reported conservative Justice Antonin Scalia’s observation that if the mandate were struck down, the entire law must go: “My approach would be if you take the heart out of the statute, the statute is gone.” The New York Times’s account offered more on Scalia’s reasoning, noting that the justice placed the law in a political context:
You’re not going to get 60 votes in the Senate to repeal the rest. It’s not a matter of enacting a new act. You’ve got to get 60 votes to repeal it. So the rest of the act is going to be the law.
Liberal justices took a different view, Reuters said. Justice Sonia Sotomayor wanted to know if the Court should let Congress decide what to do next. “What’s wrong with leaving it in the hands of people who should be fixing this, not us?” she asked. Justice Ruth Bader Ginsberg noted that many parts of the law had not been challenged in court, and she wondered “why make Congress redo those?” The Washington Post reported that Ginsberg had asked whether her colleagues were on “a wrecking operation” or a “salvage job” as they decided the future of the law without the mandate.
A few news outlets branched out, playing a kind of “what if” speculation game about what would happen if the court rips the mandate out of the law. Clearly that’s an important question, and one that interests audiences, who in the last few days may have heard more about the specifics of the Affordable Care Act than they did when it was moving through Congress. The lede of a piece by the AP’s Ricardo Alonso-Zaldivar asserted “President Barack Obama’s health care law would not automatically collapse” if the Supreme Court strikes down the mandate. Zaldivar interviewed health policy experts who pointed to alternative ways to make Americans buy health insurance.
The AP interviewed Gail Wilensky, who ran the Medicare program in the administration of President George H.W. Bush. One option, Wilensky explained, is to penalize people who refrain from purchasing health insurance until they get sick. Medicare has a similar system, imposing financial penalties on seniors who don’t sign up during a special sign-up window when they first become eligible. The point is to prevent insurers from insuring the proverbial burning house, when they will certainly lose money paying for the damage. That idea was floated during health reform but not given much serious consideration. WaPo explored this problem, too, reporting that “many of the law’s supporters insist that without the mandate, these rules would impose an unsustainable burden on insurers, ultimately causing the market to implode.”
"Wednesday the government argued that if the mandate is struck down, the rest of law, which includes some limited cost containment measures and requires insurers to cover young adults under their parents’ policies, should go as well."
Trudy, that's wrong. The government says that what's inseparable are the prohibitions against denying coverage for pre-existing conditions and charging different rates for people in the same age group.
The reason those provisions are not seperable is that without the mandate, insurers won't gain enough new customers to pool the costs of meeting those regulations.
The government says the rest of the law should stand. You're describing the plaintiff's position.
#1 Posted by Weldon Berger, CJR on Thu 29 Mar 2012 at 05:23 PM
Mr. Berger is absolutely correct in his characterization of the government's position. Moreover, Justice Sotomayor's position should be stated more clearly: that if the mandate is deemed unconstitutional, it alone should be stricken. If the Court were to do otherwise, it would be encroaching on the legislative power of Congress. This is precisely the approach Chief Justice Roberts has advocated in numerous writings and speeches on the issue of "severability". It also has the weight of precedent behind it, including the weightiest of them all, Marbury v. Madison.
#2 Posted by S Bayer, CJR on Fri 30 Mar 2012 at 03:37 AM
Thanks for the clarification.
#3 Posted by Trudy Lieberman, CJR on Fri 30 Mar 2012 at 08:16 AM
I think we are now seeing what a huge mistake it was to substitute a system that could not possibly work (Obamacare, which has a built in self destruct feature, adverse selection.)
Even if they keep the mandate, it cannot work, because the cost for the millions of self employed not in group plans will still be prohibitive.
Remember, the folks who dont have jobs who still want to buy insurance will be the sicker ones, but they will not be able to afford quality coverage- or rather I should explain they will not be able to afford *enough* coverage to make it possible for them to KEEP their insurance WHEN they get sick!
Then the government STILL gets the bill, after they spend down all their assets, because they will be dumped. Its DESIGNED that way.
We really can't win with the health insurance model. They were years ahead of us on this one.
The only way we can afford modern healthcare and catch up with the other developed nations is single payer, paid for by everyone's taxes, everybody in, nobody out.
Which means no more health insurance as we know it now. (it would have to be illegal to give some people more services than others as we do here) so, no tiers. No tears, either. Because people would get care earlier, preventing a lot of illness that currently ends up being much more expensive because its catch up care.
We should look at the Scandanavian countries and France, in particular, for how to do it. They have far better outcomes than we do right now.
We would need to renegotiate some of our WTO committments, GATS in particular.
#4 Posted by Walt, CJR on Mon 2 Apr 2012 at 07:25 PM
The legislative branch is too corporate controlled now to ever fix healthcare. The judiciary is the only branch that could do it. They don't need that re-election cash. This country's future is riding on this. We cannot do this the parties ways. Neither of them have any will to fix this.The Dems, especially, as its their way to enslave the desperate and increasingly sick voters by making promises they know they cannot fulfill. But doing nothing (the GOP solution) is even more murderous. At least the Dems propose to help the very poor (while throwing the middle class to the lions) (Of course, any poor folk who manage to keep their insurance during illness will be under scrutiny for cheating by hiding income. Criminalizing the poor is a popular way to discourage "welfare"- and the cost will be huge if its even adequate care, (unlikely) because poor people are sicker.)
SCOTUS could save our democracy from a revolution.
#5 Posted by Walt, CJR on Tue 3 Apr 2012 at 10:48 AM