What the Supreme Court Could Do About
Obamacare, Explained
![obamacare]()
Pete Marovich/ZUMA PressThe Supreme Court will hear oral arguments concerning the
constitutionality of Obamacare—a.k.a. the Affordable Care
Act, or ACA—beginning Monday. (Last week, Obama reelection
campaign manager Jim Messina sent out an email to supporters
noting that he and the campaign are proud of "Obamacare,"
thus claiming the term from their foes.) What will the
justices decide? Here are a few of the probable
scenarios:
The Supreme Court punts. The first day of
oral arguments is devoted to whether or not the Tax
Anti-Injunction Act, a law that bars legal challenges to
taxes before anyone actually pays them, applies to the
individual mandate—the Obamacare provision that levies a tax
on individuals who don't purchase health insurance and are
not otherwise covered by an employer or government program.
By taking this road and embracing an
argument first laid out by Judge Brett Kavanaugh, a
George W. Bush appointee, the Supreme Court could avoid
dealing with the constitutionality of the individual mandate
until after the 2012 election. Doing this could make the
mandate ultimately more likely to be upheld, because the
high court would be acknowledging that the mandate is a tax
and falls under the federal government's constitutional
authority to levy taxes.
"This might end with a whimper rather than a bang," says
Adam Winkler, a law professor at the University of
California–Los Angeles. "If the court rules that the Tax
Anti-Injunction Act applies, then all of the hullabaloo will
be for naught."
The Supreme Court tosses out the whole law. Conservative
opponents of the ACA argue that the individual mandate—only
one provision of the law, albeit a central one—is an
unconstitutional assertion of federal power, and they insist
it ought to be struck down. But they also want to see the
whole law ruled unconstitutional. Aside from the individual
mandate, conservatives are also challenging the
constitutionality of expanding Medicaid to 16
million more Americans. By the White House's numbers,
that's about
half of the Americans who will ultimately get coverage
under the ACA. In his brief, former Solicitor General Paul
Clement, who will be arguing for the ACA's challengers
before the court, suggested that if either the individual
mandate or the Medicaid expansion are ruled unconstitutional
then the entire law should go. As TPM's
Brian Beutler points out, it doesn't help that
Congress didn't include in the original bill a
"severability" clause (a traditional legislative provision
that essentially says that if a portion of a law is struck
down, the rest of the legislation still stands). This makes
it easier for opponents to argue the entire law should be
scrapped.
If the court doesn't rule on the individual mandate,
however, that still leaves the question of whether the
ACA's Medicaid expansion is constitutional. But experts
speculate the court is unlikely to leave the mandate alone
but overturn the health care law based on the Medicaid
expansion.
The Supreme Court tosses the mandate and the ban on
discrimination on the basis of preexisting conditions. The
ban on insurance companies refusing to cover individuals on
the basis of preexisting conditions is arguably the most
popular part of the Affordable Care Act. Nevertheless, the
Obama administration has argued that if the high court
should choose to strike down the individual mandate, the
whole bill wouldn't have to go. But, the government also
notes, the prohibition on insurance companies discriminating
on the basis of preexisting conditions would have to be
dumped, because without the mandate the law's other
provisions would "create a spiral of higher costs," with
individuals getting sick and enrolling at the last minute.
"The federal government's position is that [if] the mandate
goes, other important things go too," says Doug Kendall of
the Constitutional Accountability Center.
The Supreme Court strikes down the individual
mandate and keeps everything else. Neither the
conservative challengers to the law nor the Obama
administration would be particularly happy with this
outcome. It would leave the current law mostly intact. But
it would also, administration officials fear, bankrupt the
insurance companies still forced to provide coverage without
the necessary financial resources to do so. (Without a
mandate, the insurance industry will have fewer customers
and less resources to handle an influx of those people with
preexisting conditions.) However, during the five and a half
hours of oral arguments, the high court will also be hearing
from H. Bartow Farr III, who will be arguing for the 11th
Circuit Court of Appeals' position that the court doesn't
have to strike down anything other than the individual
mandate, if the court finds it unconstitutional.
The Supreme Court upholds the entire law.
In the post-Bush v. Gore era, where the justices'
opinions often seem to reflect little more than the
ideological positions of the parties that appoint them, it
seems difficult to imagine that the Affordable Care Act
fully survives. But it could happen. George Washington
University Law School Professor Orin Kerr, a former clerk
for Justice Anthony Kennedy, is pretty bullish on the ACA's
chances. Last
August, he predicted that "the mandate will be upheld
by a vote of anywhere from 6-3 to 8-1."
Something crazy happens. The above
scenarios seem like the most likely outcomes. But this is a
historic case, and it's possible that the court could fail
to find consensus one way or the other, leading to the
justices splitting in a way that no position ends up with a
clear majority. It's unlikely, but anything could happen.
