ACA Day Three: Tricky Business

Well, it’s over for now.  And, as promised, we had drama, sparks, lines drawn in the sand, hyperbole, even some whining.  Where are we now with the Obama administration‘s health care overhaul legislation?


A ruling is expected in June.  Or maybe early July.

Yesterday’s oral arguments focused on considering what would happen if the mandate – the requirement that, starting in 2014, everyone must have health insurance – is found by the court to violate the US Constitution.  The Obama administration maintained that the bulk of the law should stand, even if the mandate is thrown out.  The lawyer for the 26 states suing the federal government, Paul Clement,  argued that without the mandate, the whole law collapses.  As he commented,

If individual mandate is unconstitutional, then the rest of the law cannot stand.

If you don’t have the individual mandate to force people into the market, premiums will skyrocket.

He went on further to suggest that if the mandate goes and the whole law is struck down, Congress can then go back in and retrieve the bits it likes, one by one.  Given the present atmosphere in Washington, this does not sound like an especially efficient suggestion.

Some of the justices were pretty unimpressed with this approach.  As Justice Ruth Bader Ginsburg said,

It’s a choice between a wrecking operation and a salvage job.

Wouldn’t a salvage job be better?

Justice Stephen Breyer agreed with Justice Bader Ginsburg.  He called his own reaction a “totally off-the-cuff impression”, but it surely wasn’t necessary to scrap provisions in the ACA that related to disease prevention, encouraging doctors to practice in underserved areas, biosimilars and so on, was it?

For Justice Kennedy, it would be “an extreme exercise of judicial power” if “one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”  As far as he was concerned, striking the down the whole law would be less extreme than taking out the mandate and leaving the rest alone.

Ah, politics.  Heads I win, tails you lose.  Some things never change.

We’ll see what happens.


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