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.
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 â€” first, that it â€œjust couldnâ€™t be rightâ€ 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, â€œthen the statuteâ€™s gone.â€ 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,
â€œJust as a professional Democrat, thereâ€™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,â€ 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 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 lostâ€”or are at risk of losingâ€”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 65â€”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.
Update: See Steve Kornacki, “The Debate the GOP Can’t Have.”