Obamacare is doomed - all of it. Does that seem like a strong statement? Consider: What a few months ago was widely dismissed as impossible is now regarded as likely: a Supreme Court decision that overturns the law’s central provision, the mandate to purchase health insurance.
When you look closely at the legal question that lawyers call “severability” (whether other parts of the president’s health care law must be struck down if the mandate is found unconstitutional), you realize that the most likely outcome is that the entire law goes down. One could guess from the justices’ questions that five of the nine are leaning toward striking down the entire, 2,801-page bill.
The strike-it-all logic is powerful. Like the evil lord Sauron and his infamous ring, the health care mandate and the statute “are one.” As Paul Clement, the lawyer for Obamacare’s opponents very ably explained it to the court:
“[The] individual mandate is tied, as the government suggests, to [the mandates on insurers known as] guaranteed-issue and community rating. But the individual mandate, guaranteed-issue and community rating together are the heart of this act. They are what make the exchanges work. The exchanges [where people will go to get insurance with federal tax-credit subsidies] in turn, are critical to the tax credits, because the amount of the tax credit is key to the amount of the [insurance] policy price on the exchange. The exchanges are also key to the employer mandate, because the employer mandate [to provide health coverage to workers] becomes imposed on an employer if one of the employees gets insurance on the exchanges. But it doesn’t stop there. Look at the [seemingly peripheral] Medicare provision for [reducing subsidies to] DSH hospitals, OK? These are hospitals that serve a ‘disproportionate share’ of the needy. This [federal relief system] doesn’t work without the mandate, community rating and guaranteed-issue. …”
And so on. In short, the thigh bone is connected to the head bone. It’s all interconnected. So if you’re a justice, it seems you have four basic options:
A) Uphold the entire statute. This means giving up on the Founders’ idea of limited government and fundamentally changing the relationship of citizens to their government.
B) Strike the individual mandate. Without the mandate, premiums skyrocket, people lose coverage and the health insurance system begins to break down.
C) Strike the individual and insurance mandates. Premiums may not skyrocket, but hospitals will lose the federal relief they were promised - the only reason they supported the bill in the first place.
D) Strike the entire statute. Nothing happens, except acute political embarrassment for Democrats.
If you’re a non-left-leaning justice who wants to protect the court from a political backlash, which option would you naturally gravitate to?
Justice Anthony Kennedy seems to think Option D is preferable. He worried aloud that if the court attempts to preserve as much of the statute as possible, it might inadvertently create a new statute “that Congress did not provide for, did not consider.”
Justice Antonin Scalia agreed: “My approach would say, if you take the heart out of the statute, the statute’s gone. That enables Congress to do what it wants [to repair it], in the usual fashion. … And it doesn’t inject us into the process of saying: ‘This is good, this is bad, this is good, this is bad.’ “
To be sure, the court could surprise us. It could strike down only the mandate, or only the mandate plus a few related insurance regulations. Or, alternatively, it could uphold the entire statute. We won’t know for sure until late June.
But with the conclusion of March’s oral arguments, Obamacare defenders should be very worried.
James Carville, a Democratic strategist and Obamacare supporter, tried to put a happy face on matters. He declared on national TV that an adverse court ruling would be “the best thing that ever happened to Democrats” politically. Because it will make health care the Republicans’ problem.
Um, James, that’s a bit like saying being convicted of shoplifting makes your jail sentence the public prosecutor’s problem.
The fact is, even if the court upholds the mandate, Congress will almost certainly end up repealing it, since it’s opposed by 70 percent the American people. In which case, just like the court, Congress will find it easier to erase the whole blackboard and start over - hopefully with a patient-centered approach.
Sorry, James. Your health care law is doomed - all of it.
Dean Clancy is legislative counsel and vice president for health care policy at FreedomWorks.