The fate of President Obama’s biggest legislative achievement will be debated in the nation’s highest court next week but that doesn’t mean the fight won’t continue back in the legislative branch of government regardless of how the court eventually rules.
On Monday, the justices of the Supreme Court will begin three days of oral argument on the 2010 health care overhaul, the Affordable Care Act, considering the constitutionality of two of its core provisions: an expansion of the Medicaid program for lower-income Americans and, more important, the individual mandate -- the requirement that almost every adult American purchase health insurance.
“I think it would be very, very devastating if that individual requirement to purchase health care was struck,” said Chris Jennings, a health care policy advisor to President Bill Clinton and a former Senate Democratic aide.
It might have an effect on Democrats in this fall’s election -- perhaps motivating them even more to vote.
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But for independent voters, Jennings said, if the justices strike down the law, it will validate the view of “those who accused this law of being a government over-reach” and will change the debate for the 2012 campaign from being a clash over Medicare and entitlements -- issues on which the Democrats think they have an advantage in public opinion -- to a debate over the Affordable Care Act. The key piece of the law, the individual mandate, remains highly unpopular, according to the Kaiser Family Foundation Health Tracking Poll and other polls.
Democratic lawyer Joe Onek, the former senior counsel to ex-House Speaker Nancy Pelosi, contended that the challenges to the law are “frivolous.” But if that’s the case, he asked, “Why all the concern? Why all the fuss? I can give you the answer to that in three ominous words: Bush vs. Gore”-- the high court’s ruling in the 2000 Florida election dispute -- which most Democrats saw as an unprincipled and partisan meddling in the election.
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Apart from its effect on Congress, the justices’ ruling, which will likely come in June, will have an effect on the high court’s reputation.
Georgetown University law professor Randy Barnett, who worked on the National Federation of Independent Business suit challenging the individual mandate, said “the unpopularity of the law gives the Supreme Court the opportunity to evaluate fairly the valid constitutional objections … without fear of a popular backlash.”
He added the justices “can decide the case on the merits -- they don’t have to worry that the legitimacy of the court will be somehow undermined should they decide to strike the mandate down.”
But Neal Katyal, who served as acting solicitor general in the Obama administration and defended the law in the federal appeals courts, argued for judicial restraint -- “the unelected Supreme Court shouldn’t be taking democratic decisions away from the people.”
Here are the most likely rulings the court may hand down and what might be the aftermath of each:
Scenario 1: If the court strikes down the individual mandate and also decides that it is not legally severable from the rest of the statute, then the entire Affordable Care Act will be invalidated. Congress would then face the task of writing a new law, if enough members in each house wanted to address some of the problems that led to the health care overhaul in the first place, such as people with pre-existing medical conditions being denied coverage. “What is remaining in the law after the court rules -- if they in any way alter it -- is going to be very difficult to fix or to change,” Jennings said. That will be partly due to the partisan divide in Congress and partly due to the pressing need for Congress to take action on the national debt, continued federal deficits, and an overhaul of the tax system.
Scenario 2: If the court were to strike down the individual mandate, but decide that that provision is legally severable from the rest of the law, then the remaining provisions would stay in effect: for example, the law’s tax credits for low- and middle-income people to buy insurance, and the state-based insurance marketplaces or “exchanges,” at least in the states that are cooperating with the law.
But the expectation among groups that have filed friend-of-the-court briefs is that if the justices rule the individual mandate invalid, they will also strike down the law’s insurance market reforms, such as the requirement that insurance companies not refuse coverage to seriously ill people with high medical costs.
"Frankly, no one knows what would happen” in a scenario in which the justices strike down the mandate but leave the rest of the law intact, said medical economist Larry Levitt, a former health policy official in the Clinton administration who is now at the Kaiser Family Foundation. “This is not an experiment that we’ve done before.”
Jennings said politically “it may be virtually impossible” to fix the remainder of the law if the individual mandate is struck down because congressional consensus wouldn’t exist.
“The environment in which those conversations are likely to take place … will be so poisoned” that it will be difficult for members of each party to draw back from the hardline positions they’ve taken, said Sheila Burke, former chief of staff to Senate Majority Leader Bob Dole, who now teaches at Harvard’s Kennedy School of Government.
A possible congressional response to the court striking down the mandate, Levitt said, is that Congress could replace the mandate with a tax. The revenues would be used to subsidize health insurance for people with medical conditions who had difficulty buying insurance. “This would be, I think, the simplest approach and the cleanest and most effective,” said Levitt. But in 2010 congressional Democrats were averse to calling the health insurance mandate a tax and it’s doubtful there would be enough votes in the House to pass such a tax, even if the Democrats are back in majority in 2013.
Scenario 3: The justices uphold the entire law. This is the outcome many Democratic lawyers expect. If this happens, then for opponents of the law “it will be an incentive to essentially re-fight all of the individual elements point by point,” said Burke. “You might imagine most at risk might be the individual mandate, the employer mandates, the Medicaid expansion … There is a list of individual items that you might imagine people (in Congress) will try to go after. They will go piecemeal -- from the left and from the right -- trying to alter what’s in place. So I don’t think we can assume that people will simply say ‘All right, the court has decided let’s move on.’ I think those fights will continue.”
One challenge in carrying out the law, if it is upheld, is the huge expansion of the Medicaid-eligible population, with 17 million more Americans able to get benefits. Gail Wilensky, former health care advisor to President George H.W. Bush, points out the newly-eligible people are highly concentrated in the southern states. For example, Louisiana will have 37 percent of its population on Medicaid, she said, adding, “How in the world are we going to get services to all these people?” Some states “likely to be overwhelmed with new people” on Medicaid.
But if Republicans win the 2012 election and control the Senate, then some of the provisions of the law -- such as the Medicaid expansion -- could be overturned using the same reconciliation procedure Senate Democrats used to enact them.
Mark McClellan, who served as Medicare and Medicaid director under President George W. Bush, said that if the law is upheld, the unpopularity of the individual mandate might lead Congress to consider delaying the penalties for not buying insurance, or perhaps come up with a different approach to spurring younger healthier people into buying insurance, such as lower premiums for the uninsured who enroll at a younger age and a penalty for those who wait to buy insurance.
