SCOTUS and Tea Leaves

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Health Care, Supreme Court

The oral arguments over the Affordable Care Act are over, and I’ve been cruising around getting reactions. First, there’s general agreement that it be be a divided decision, and the swing votes will belong to Roberts and Kennedy. No surprise there, I don’t think.

Today the Court heard arguments about “severability,” or whether the entire law has to fall if the individual mandate is struck down. And it appears there may be some awareness on the court that if the mandate goes, and the ACA stays, somebody’s got to pick through the whole beast and revise the thing. The Court doesn’t want that job, but they appeared skeptical that Congress is up to it, either.

David Savage of the Los Angeles Times writes that the justices seem to be leaning toward striking down the whole law, but other writers are not that pessimistic, or optimistic as the case may be.

Lyle Denniston of SCOTUSblog writes,

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.

There is widespread agreement that the decision could define the Roberts court. This has caused some people to speculate that Roberts may vote to uphold the act just so he can’t be accused of being a right-wing tool. But if he’s the right-wing tool many assume him to be, he won’t care what anyone thinks. You can’t beat being a Supreme Court Chief Justice for job security, after all.

I’m making no predictions. It could go either way.

James Carville argues that if the Supremes flush Obamacare, politically this could work out better for the Dems than for Republicans. Carville says,

“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5-4 and then the Republican Party will own the health care system for the foreseeable future. And I really believe that. That is not spin,” Carville said.

David Frum agrees that a loss for Republicans in the Court would present a bigger political challenge to them than a win. And that’s because Republicans have nothing ready to replace the ACA. After all this time, they’re still hauling out the same loser arguments about tort reform and selling insurance across state lines.

My uninformed guess: the ACA prevails, and probably not by a narrow margin.

What then?

What then is that healthcare comes roaring back as a campaign issue, to which Republicans have failed to provide themselves an answer. Because of the prolonged economic downturn, more Americans than ever have lost—or are at risk of losing—their health coverage. Many of them will be voting in November. What do Republicans have to say to them?

Make no mistake: If Republicans lose in the Supreme Court, they’ll need an answer. “Repeal” may excite a Republican primary electorate that doesn’t need to worry about health insurance because it’s overwhelmingly over 65 and happily enjoying its government-mandated and taxpayer-subsidized single-payer Medicare system. But the general-election electorate doesn’t have the benefit of government medicine. It relies on the collapsing system of employer-directed care. It’s frightened, and it wants answers.

“Unconstitutional” was an answer of a kind. But if the ACA is not rejected as “unconstitutional,” the question will resurface: if you guys don’t want this, want do you want instead?

In that case, Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one. If the Supreme Court doesn’t rescue them from themselves, they’ll be heading into this election season arguing, in effect, Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we’re doing this so as to better protect the government-mandated insurance of people over 65—until we begin to phase out that insurance, too, for everybody now under 55.

But if the ACA is struck down, won’t the Republicans still be under the gun to crank out an alternative? Well, maybe not until after the election.

See also The Rock Biter Theory Of Health Care Reform Legislation.

Update: See Steve Kornacki, “The Debate the GOP Can’t Have.”

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7 Comments

7 Comments

  1. joanr16  •  Mar 28, 2012 @4:09 pm

    I agree… predictions on this one are a fortune teller’s game.

    Meanwhile, I saw this BREAKING NEWS on CNN:

    CNN/ORC poll: President Obama holds a double-digit lead over Mitt Romney in a hypothetical head-to-head matchup.

    Oh, and This Just In: Carville’s still kind of an idiot.

  2. tom b  •  Mar 28, 2012 @4:16 pm

    You mean we might be the only developed country in the whole dang world where healthcare is unconstitutional? Poppycock! Than state mandatory auto insurance laws are even unconstitutional as well.

  3. joanr16  •  Mar 28, 2012 @4:30 pm

    Then state mandatory auto insurance laws are unconstitutional as well.

    No joke. I would love to see that unintended consequence smack some folks in the face.

  4. paradoctor  •  Mar 28, 2012 @5:35 pm

    So… single payer auto insurance?

  5. muldoon  •  Mar 28, 2012 @7:13 pm

    I’m having trouble seeing how the mandatory part of the bill could be struck and the rest left standing. HCA was a compromise between the insurance companies and the government: These are the insurance reforms we, the government want to make, and in exchange we shall make health insurance coverage mandatory for everyone. Not a bad deal for the insurance companies, because even though they now had to cover preexisting conditions and were required to meet other standards of coverage, with the greater base they could afford to do so and still make a healthy profit.

    Without this compromise, the mega-profitable insurance companies would have thrown everything in their considerable arsenal against HCA. The reason Medicare and Medicaid received so little resistance was because old people and the indigent are loss-leaders anyway. The insurance industry was delighted to get them off their books. The reason they agreed to not fight HCA, was because it benefited them to not do so.

    For this reason, I believe the Robert’s Court has only two options: rule in favor of the entire bill or negate all of it. And here’s “The Lady or the Tiger” question: How will Roberts vote?

    This is his Court, and shall ever be known as such in Constitutional Law books forever more. By now, he is certainly cognizant of the fact that the Citizens United decision has come back to bite him in the butt via the greater law of unintended consequences.

    We already know how Scalia, Thomas and, yes, probably Alito will decide. We already have a pretty clear inkling about the precedents upon which Kennedy will base his decision. That makes four against. Were I Roberts, I would not sleep well tonight.

  6. c u n d gulag  •  Mar 28, 2012 @7:17 pm

    “In that case, Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one….”

    Well, that’s because Obama and the Democrats took most of their Plan A – which was their answer to Hillary Care.
    You remember THAT fiasco?

    Finally, Mitt, before McCarthy, Helms, and David Duke, became his favorite politicians, decided to try it in MA.
    And Obama and the D’s took good pieces of it for the ACA.

    And now, Mitt’s running away even faster and harder, than the cowardly D’s in 2010.

    If a R came up with this plan, it would pass with a higher than 5-4 majority.
    But, it was a D, and a Black President’s one, so, all bets are off.

    This will be interesting.

    If it doesn’t pass, R’s should be have to carry THEIR health care plan, like an anchor in the ocean in a hurricane, throughout this election cycle:
    “Die f*cking fast.
    Die f*cking cheap.
    Die without making a lot of noise.
    Basically – just f*cking DIE, and STFU about it!!!”

  7. paradoctor  •  Mar 29, 2012 @10:07 am

    muldoon: you say that the Court has only two options; uphold all of ACA or strike it all down; for negating the individual mandate only would be illogical and impractical. Well, that’s their third option. Never underestimate the right wing’s will to chaos.



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