With the Supreme Court’s summer session set to wrap up next week, all eyes are on the Justices to see what they will do on the question of health care reform and its constitutionality. In preparation for the fateful day and to better inform those who’d like to get a little background before hearing the pundits spit opinions at you, here is a quick primer and some analysis concerning the basic info and potential outcomes of the Supreme Court’s decision on President Obama’s signature piece of legislation.
What are we arguing about?
There are four questions before the Court. The two big ones ask first, whether the individual mandate, which requires all Americans to purchase health insurance, is constitutional and, second, if it is unconstitutional, whether it is severable from the Affordable Care Act. The Court’s decision will have a variety of effects, ranging from the implementation of the law, to the costs of repealing the law, and especially on the rhetoric surrounding the November elections. Conservatives believe that the individual mandate is an unconstitutional government overreach and that the whole law should fall with it. Liberals believe that the uniqueness of the health care market justifies this government action and that even if the mandate were to fall, the rest of the law should be left alone.
Individual Mandate is Constitutional
Most legal scholars expect the individual mandate to be upheld. If the Court hands down a decision declaring the mandate constitutional, the Affordable Care Act will continue to be implemented until its full official roll-out in 2014. This outcome, just like its alternative, is guaranteed to be a closely split decision and the scope and breadth of the conclusion will depend on the opinion. Some legal scholars have speculated that if the Court gets a 5-4 majority to uphold, Chief Justice Roberts may switch to the majority in order to be able to write the opinion and tailor it more narrowly, resulting in a 6-3 outcome.
Individual Mandate is Unconstitutional But Severable
This outcome would mean that the individual mandate itself would be declared unconstitutional, but the rest of the Affordable Care Act would be left alone. Depending on how this decision is written, this could prove very problematic for the Obama administration as it would remove the primary source of revenue without removing the functions that depend on said revenue. This would force the administration to ask Congress for a reform or partial repeal, which could lead to a great deal of fireworks both before and after the election. The Court could also remove the mandate and certain functions attached to the mandate – we will have to wait for the opinion to see how they do, if they do it.
Individual Mandate is Unconstitutional and Not Severable
This is the conservative rallying cry. This decision would throw out the individual mandate and the rest of the law along with it. It would be as if the Affordable Care Act was never enacted and any regulations, rules, or procedures that have been implemented (such as prohibitions on discriminating against pre-existing conditions or allowing children to stay on their parent’s health plan) would be repealed unless re-enacted by Congress.
For further reading, check out the PolicyMic Debate on the question of the individual mandate’s constitutionality and the Affordable Care Act more broadly, as well as my piece on why the decision hinges on Justice Kennedy’s conclusions.
We’ll be covering the opinion as soon as it’s issued, so be sure to check back here come decision day, next Monday!