After three days of hearings by the US Supreme Court, the Affordable Care Act, the signature domestic achievement of the Obama Administration, appears to be hanging by a thread.
The conservative Justices’ withering attack on the individual mandate during Tuesday’s oral arguments has made that clause’s survival extremely doubtful. And because so much of the rest of the act is closely tied to the mandate, it’s in jeopardy, too, as was evident at Wednesday morning’s session.
I’m not an attorney, but I’ve listened to the audio and reviewed the transcripts and I just can’t see any way the justices can kill the individual mandate without gutting the law or throwing the whole thing out.
Here’s the problem: The individual mandate is the funding mechanism that allows insurance companies to cover everyone regardless of medical status. It forces young and healthy people who might not opt to buy health insurance into the risk pool so insurers can cover sicker people without going broke.
So, without the individual mandate, the act’s injunction to cover everyone, whether or not he or she has a preexisting condition, would become an unjust burden on insurers or drive premiums up for everyone else.
Paul Clement, the attorney for the 26 states suing the government to block the Act, put it this way:
…The provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act. And then if you look at how they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid, if you follow that through what you end up with at the end of that process is just sort of a hollow shell. And…you can’t possibly think that Congress would have passed that hollow shell without the heart of the Act.
At a certain point, I just think that…the better answer might be to say, we’ve struck the heart of this Act, let’s just give Congress a clean slate.
In other words, kill the bill.
Justice Antonin Scalia, one of the Court’s staunch conservatives, seemed to agree:
My approach would say if you take the heart out of the statute, the statute’s gone. That enables Congress to…do what it wants… in the usual fashion. And it doesn’t inject us into the process of saying, “this is good, this is bad, this is good, this is bad.” It seems to me it reduces our options the most and increases Congress’s the most.”
Justice Scalia also had some practical problems with sorting through the 2,700-page bill:
And do you really expect the Court to do that? Or do you expect us to—to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
Edwin Kneedler, the deputy solicitor general representing the government, argued that if the individual mandate fell, only provisions tied directly to it might have to go. But Chief Justice John Roberts struggled with that:
I mean, this was a piece of legislation which, there…had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions…, that was the price of the vote [without which] they wouldn’t have been able to put together…the votes to get it through.
Justice Ruth Bader Ginsburg, who, along with the three other liberals, appeared to be fighting to preserve the law, asked succinctly:
It’s a question of…we’re going to wreck the whole thing, or should the Court leave it to Congress?
Venerable Supreme Court reporter Lyle Denniston, writing in SCOTUSblog, thinks the daunting challenges of sorting that out may prompt Justice Anthony Kennedy or Chief Justice Roberts to step back from the brink and rule the individual mandate constitutional.
But to my ears, constitutional issues trump practical considerations. The individual mandate is going down, and the heart of the bill, or more likely the whole thing, will go down with it. By July Congress and the president could be back to square one on health care reform.