Striking Down the Individual Mandate: The Aftermath
Speculation is running rampant about what will happen if the US Supreme Court actually strikes down the individual mandate. Here is the take as printed in the Washington Post (http://www.washingtonpost.com/politics/supreme-courts-health-care-ruling...):
The fate of the Patient Protection and Affordable Care Act is uncertain. A ruling is not expected until June. White House officials are refusing publicly to consider that the law might be struck down or to discuss contingency plans, insisting that they do not address hypothetical questions.
By the time oral arguments ended this week, supporters were rattled by the tough questions, with legal scholars and others observing that a majority of the justices seemed inclined to strike down the law’s key provision, an individual mandate to obtain health insurance.
That has prompted a larger conversation about what happens if they do.
The court will effectively render judgment on the leadership of the president. It was Obama who, at every turn during the original health-care debate, pressed for a more ambitious package that required Americans to purchase insurance.
These Democrats did not think the oral arguments went well for the president. But they see an opportunity to rally voters who are passionate about health-care reform — and to portray the Supreme Court as a partisan body.
Republicans have said they could keep the law’s more popular provisions, such as barring insurers from denying coverage because of preexisting conditions. But supporters say it’s not possible to pay for that provision without requiring the 30 million Americans who are currently uninsured to purchase coverage.
And here is a more thoughtful assessment, about the legal issues themselves, found on Politico (where the picture above was also found) (http://www.politico.com/news/stories/0312/74591_Page4.html):
The Supreme Court struggled Wednesday with a question that looks increasingly significant after conservative justices battered the individual mandate: Should the rest of President Barack Obama’s health care law stand if the requirement to purchase insurance falls?
Most of the justices appeared opposed to throwing out the entire law, but their views on how much to keep in place were murky, and the divisions between conservatives and liberals were not always as clear cut as they were Tuesday.
The questions showed that the justices are wrestling with a real dilemma: Striking the entire health law would be a radical step and could throw the country into an uproar. But they’re not health care experts, and they were clearly worried about the consequences if they pull out pieces of the law and that throws the rest of the health care system into chaos.
Justice Anthony Kennedy, who is viewed as a key swing vote, appeared to align himself with those inclined to throw out the law if the mandate goes.
If the justices leave part of the law in place, “by reason of the court, we would have a new regime that Congress did not provide for, did not consider,” Kennedy said.
He said it would be a “more extreme exercise of judicial power” to do surgery on the legislation — a position endorsed by Justice Antonin Scalia, who said it is “totally unrealistic” to comb through a 2,700-page law.
“My approach would say if you take the heart out of the statute, the statute is gone,” Scalia said.
But after the court’s conservative justices defied expectations by attacking the mandate, the focus of Wednesday’s arguments no longer felt like an academic exercise. The harsh reception Tuesday prompted court watchers to revise their earlier predictions that the mandate was certain to survive, saying it appears to be in more trouble than many had expected.
The court’s liberal justices pounded Clement with tough questions about the states’ case that Congress didn’t have the power to expand Medicaid. The conservative justices stayed mostly silent during the discussion, but Roberts noted that states may have already given up some independence by agreeing to take federal Medicaid funds over the past 40 years.
It won't matter whether the Court strikes down the whole law if it strikes down the individual mandate. The lobbying power of the health insurance industry will kill the rest of the insurance reform provisions of the law if they don't have the mandate, which guaranteed them profitable business indefinitely. This might leave the expansion of Medicaid on the table if Pres. Obama wins re-election. But, should the Supreme Court strike down the individual mandate, there will be an immediate need for state-based efforts to reform the health care system, given that Congress has shown itself entirely unable to deal reasonably with this issue. I suggest that everyone interested in real, comprehensive, sustainable health system reform begin pressing Congress to pass legislation that will set a minimum standard for state-based health system reform while allowing states complete freedom in efforts to exceed that standard. Please review a draft of such legislation at the "Solutions" tab on this website. This legislation was originally drafted and sponsored by a democrat from Massachusetts: John Tierney. It had principle Senate sponsorship from Bernie Sanders (I-Vermont). Those who oppose Obama-Care by and large favor states rights. I am asking them to put action into supporting legislation which will allow states, for the first time, to get a clear path towards health system reform.
Who will join the Utah Healthcare Initiative in demanding that Congress pass the States' Right to Innovate in Health Care Act?
Dr. Joe Jarvis