Wednesday, June 27, 2012
One. More. Day. Analysis and Predictions
Finally, tomorrow, we will have a Supreme Court decision on health reform -- assuming, of course, that the Court doesn't order more briefing or argument, carrying over the case to the next Term. Highly unlikely -- there's already been a historic amount of briefing and argument on this case. So I think we can count on a decision tomorrow.
What will it be? Remember, there are four issues.
First, is this lawsuit barred by the Anti-Injunction Act? If it's a "tax" under the definition of "tax" in the Anti-Injunction Act, then it can't be enjoined until it takes effect -- 2015. Nobody thinks the Justice are going to throw out the case on that ground.
Second, the individual mandate. Can Congress make us buy something even if we don't want it? Precedent says that Congress can regulate anything that has an effect on commerce -- even an indirect effect. Growing pot in your backyard for personal use can be regulated by the federal government; growing wheat on your farm for personal use can be regulated by the federal government. So why can't Congress regulate how you pay for health care -- especially when, if you don't have insurance and you get sick or injured and can't afford to pay your hospital bills, the taxpayers pick up the tab? More importantly, from my standpoint, is this: If Congress decides that, in order to require coverage of people with pre-existing conditions, there has to be an individual mandate to bring healthy people into the pool, why isn't that a "necessary and proper" exercise of Congress's powers? I don't know what the Court is going to do here, but this is the lynchpin of the case.
Third, if the individual mandate is unconstitutional, how much of the law should be struck down? The states argue the whole law should go. I don't see that happening. It's a huge law with a lot of provisions that do not depend on the individual mandate. But the Obama Administration (unwisely, in my opinion) told the Court that if it strikes down the individual mandate, it should also strike coverage of pre-existing conditions and a prohibition on the use of health status to set premium prices. I'm hoping the Court takes an all or nothing approach; rather than getting into the details of the law -- all 2700 pages of it -- the Court could strike down just the mandate and let Congress decide what, if any, other parts should be struck down. As long as President Obama is in office, he would veto any GOP attempt to strike down the whole law, and with Congress becoming essentially paralyzed, it's unlikely they will be able to do much of anything. So we might keep coverage of pre-existing conditions even if the mandate is struck down.
Finally, the Medicaid expansion, which is paid for by federal dollars for the first few years, and ultimately, the most the states will pay is 10%. The states are screaming now about that 10%. But this is an area where Congress has always had all the power it wants to exercise. To strike down the Medicaid expansion, the Court would have to take aim at Medicaid itself. I don't see that happening.
Prediction? Chief Justice Roberts writes for a plurality, meaning there's no majority opinion on all the issues. Nobody favors applying the Anti-Injunction Act. Five votes (Roberts, Kennedy, Scalia, Alito, Thomas) to strike down the individual mandate. A different set of six votes (Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan) vote that the mandate is severable from the rest of the law (there's a little hope in this prediction since my main focus is coverage of pre-existing conditions). Those same six votes to uphold the Medicaid expansion.
There's a lot of hope in those predictions. I will consider it a win if we keep coverage of pre-existing conditions. For now, though, we just have to wait. And wonder.
You can count on this blog for an immediate report of the votes and analysis throughout the day, as it all gets parsed and we figure out what it means. So tune in right here for the latest. Jennifer