The US Supreme Court dealt the health plan industry a difficult hand coming out of its oral arguments on the Accountable Care Act’s individual mandate in late March. With about five weeks to go until a formal ruling, the Justices will have already made their decision, the draft opinion is circulating around the Court, and the guessing game for those of us outside those hallowed halls begins.
Like most, my confidence in the Constitutionality of the mandate was shaken during the surprisingly tough questioning by the Justices on day two of the hearings. Questions from the bench indicated the Justices may split 5-4, with the Court’s five Republican appointees joining to overturn the mandate. Justice Anthony Kennedy, who typically occupies the middle ground on the Court, said that by requiring Americans to take unwanted action (buying health insurance), the law “changes the relationship of the government to the individual in a very fundamental way.” “Fundamental” is a big word on the Court, and that certainly sounds like he’s leaning right. Obama needs at least one Republican appointee to uphold the 2010 law. Four of them — Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Kennedy — interrupted U.S. Solicitor General Donald Verrilli repeatedly. Not exactly what you’d call a “buy sign”.
Then there’s the bigger question: if the mandate is struck down, can it be separated (“severed” in SCOTUS-speak) from the rest of the ACA, or does the law in whole or in part have to be thrown out? Going into the third day of oral arguments focusing on severability, Obama’s signature health care law appeared to be in serious danger. But after sleeping on it a few weeks I really doubt the Roberts Court would go that far. Striking down the ACA would doom the highest Court — and our last respected government institution — to throwing itself on the biggest political hand grenade since Bush v. Gore.
So there you have it: as of today, my guess is that the mandate will be overturned; that the insurance reforms will be severed, and the remainder of the ACA will be left untouched. It will create a firestorm in the elections, and the people, in their infinite wisdom, will speak in November.
And then the fun — of picking up the pieces or flushing the whole law, depending on which way the White House and Congressional races go — begins. Again. My best guess as of today: Obama squeaks it out, Democrats lose the Senate, and we spend the next four years watching Obama veto repeal attempts. Sigh.