Anticipating A Turn of The Health-Care Screw

Nothing short of a total repeal of Obama care will do, because such a repeal will amount to nothing more than a “do no more harm” injunction. However, even in the unlikely event that the SCOTUS deals a set back to Obama’s politburo of proctologists in the waiting, and repeals the hulking bill–we are still screwed, as we currently labor under a costly, unwieldy “patchwork of indemnity insurance arrangements, managed care, private payment, and charity.” Free market incentives are not exactly robust in the current Third-Party system.

Until tomorrow, Amy Howe anticipates the health-care decision, “In Plain English,” at the SCOTUS Blog:

Once the Court does turn to health care, there are four questions before it. Three of those questions revolve around the “minimum coverage” provision, popularly known as the “individual mandate.” Of course, the question keeping the White House, Congress, and everyone else in the country on pins and needles is whether the mandate – which would require virtually all Americans to buy health insurance by 2014 or pay a penalty – is constitutional: can Congress, using its power under the Constitution to regulate commerce between the states, make people buy health insurance? (More detailed Plain English discussions of the substantive issues in the case, including the individual mandate, are available at this link.)

But before the Court can decide whether the mandate is constitutional, it must first decide whether it can even rule on this question at all. The potential obstacle to the Court’s review of the mandate is the Anti-Injunction Act (AIA), an 1867 law that prohibits lawsuits to challenge a tax until the tax has actually gone into effect and needs to be paid. At least one lower court has concluded (and the federal government once even argued) that the “penalty” which would be imposed on someone who doesn’t buy health insurance under the mandate is a “tax”; therefore, this line of reasoning goes, someone who believes that the mandate is unconstitutional cannot bring a lawsuit making that argument until after the mandate actually goes into effect in 2014.

If the AIA applies to the lawsuit over the mandate, then the Court cannot consider the challenge to the mandate even if both the federal government and the states challenging the law want the Supreme Court to decide the case. So if at least five of the nine members of the Court were to conclude that the AIA does apply to the mandate, that would be the end of the matter. The Court would not discuss, much less rule on, whether the mandate is constitutional, nor would there be any reason for the Court to weigh in on what parts of the law, if any, can survive if the law is unconstitutional – the “severability” question. Instead, the Court would skip straight to the fourth and final question, dealing with the constitutionality of a provision that expands eligibility for Medicaid, the state-federal partnership that provides health care to the poor.

What the Court will in fact decide about the AIA obviously remains to be seen tomorrow. After the oral argument in March, most Court watchers believed that the Court would not regard the AIA as a bar to reviewing the mandate. But if that issue went the other way, that decision would postpone a decision on the mandate until well after the presidential election – which might be an appealing option both for political reasons and if the Court is having a hard time coming up with a majority to resolve the mandate issue.

At least for tomorrow, all that anyone will really be interested in with regard to the AIA is the Court’s bottom line: can it review the mandate issue or not? If it agrees with both sides that it can, all eyes will then turn to that constitutional question. Most Americans care about the bottom line: is the mandate constitutional? Even if the Justices disagree on the reasoning, the mandate would still survive.

If the mandate does survive, then the Court’s work is almost done; all that would be left would be the Medicaid issue, which we will discuss in a moment. But if at least five Justices vote to strike down the mandate, then the Court will have to decide what other parts of the law, if any, fall with it. On this “severability” question, the Court will again have several options. It could allow all of the rest of the ACA to stay in place; it could conclude that the rest of the law must go too (as the states have argued); or it could settle on a middle ground – for example, as the federal government argued, by striking down the provisions that are inextricably linked to the mandate but allowing the others to go into effect.

Finally, as long as the Court doesn’t conclude that the entire ACA must fall, it will have to resolve one more issue: does another provision of the Act violate the Constitution because it effectively coerces the states, requiring them to comply with the ACA’s expanded Medicaid eligibility requirements or risk losing all of the money that they receive for Medicaid from the federal government? The lower court agreed with the federal government that it does not, and the Justices seemed to be leaning that way at oral argument. But as we saw on Monday when the Court announced its decision in the Arizona case, the oral argument is not always a foolproof predictor of how the opinion will turn out.

So check back tomorrow; we’ll have our first reporting on the decision as soon as it is announced, and then we’ll break it down into Plain English as soon as possible after that.