The Supreme Court will hand down its Obamacare ruling during the
week of June 25, and Nostradamus himself would hesitate to make a
prediction about the particulars of what will inevitably be a
controversial decision. Nonetheless, it’s difficult to imagine that
the Court will leave what Justice Scalia called “the heart” of the
law standing. That the individual mandate is in genuine peril was
made abundantly clear during last March’s oral arguments, when
Justice Kennedy asked the Solicitor General, “Do you not have a
heavy burden of justification to show authorization under the
Constitution?” Coming from Kennedy, widely considered the Court’s
sole remaining swing vote, that query completely unmanned the law’s
advocates.
Faced with such skepticism from Kennedy, the most obtuse of
Obamacare’s cheerleaders were forced to accept reality. Even Ezra
Klein
got it: “The quick read is that today went very badly for
supporters of the individual mandate.” What many of the law’s
boosters still don’t get, however, is that they had a “bad day” not
merely because the hapless Donald Verilli spectacularly failed to
“carry the heavy burden of justification” for the mandate, but
because that failure also portended the demise of two additional
Obamacare provisions without which the law will be effectively
eviscerated. If the justices strike down the individual mandate,
they will very likely strike down the law’s guaranteed issue and
community rating provisions as well.
Why would they do that? Well, the DOJ recommended that very
course of action. The third day of March’s hearings was largely
devoted to the dilemma created when the Democrats failed to include
a severability clause in the law. The absence of such language, in
theory, means the entire statute must fall if the mandate is struck
down. This is, of course, the position the plaintiffs have taken
all along. The DOJ disagrees, but does concede that the mandate is
not severable from these other two provisions. As Deputy Solicitor
General Edwin Kneedler
told the justices, “If you take out minimum coverage, but leave
in the guaranteed issue and community rating, you will make matters
worse… we think those things rise or fall in a package.”
Presumably, the DOJ took this position in the hope that the
justices would leave the mandate unmolested because striking it
down would doom two more crucial provisions of the law. We don’t
yet know if that strategy had the desired effect on the justices,
but it’s blindingly obvious that its implications were lost on many
of Obamacare’s cheerleaders. This is particularly true of those who
make their living in the “news” media. A recent Politico
piece, for example, contains the following
passage: “Many SCOTUS watchers think one of the most likely
scenarios is that the court will toss out the individual mandate
and keep the rest of the law. That would leave a lot of the popular
pieces alone, like covering pre-existing conditions…”
Jonathan Cohn
echoes this nonsense in The New Republic: “One very
real possibility is that the Supreme Court invalidates the law’s
most controversial element, the individual mandate, but nothing
else.” He then proceeds to paint a preposterous picture of
Obamacare, sans the mandate, advising his readers that “the new
regulations on the private insurance market, including those
prohibiting insurers from denying coverage or charging higher rates
based on medical risk, could function without the mandate.” Cohn
certainly heard every syllable of March’s arguments, yet writes as
if Kneedler never brought up the “package.” Perhaps this is what he
meant when he
wrote, “I have trouble wrapping my mind around what I saw in
the courtroom.”
While it is possible that the Court will strike down the mandate
and leave the rest of Obamacare standing, it’s absurd to suggest
that the law could still function effectively. Such a ruling would
result in a health insurance “death spiral” in which healthy people
stop buying coverage and the insurance companies are left with the
most expensive patients. This is what Kneedler was trying to tell
the justices about the consequences of striking down mandate but
leaving guaranteed issue and community rating in place. As he
rather inelegantly phrased it, “[P]eople would wait to get
insurance, and therefore — and cause all the adverse selection
problems that arise … Rates will go up, and people will be less —
fewer people covered in the individual market.”
In the end, though, the only justice Kneedler really had to
convince was Anthony Kennedy. Justices Kagan, Ginsburg, Breyer, and
Sotomayor are no doubt for upholding the entire law, including the
mandate. Justices Roberts, Scalia, Thomas, and Alito will be for
striking down the mandate at the very least. Thus Kennedy, the last
of the swingers, will make the call. This is bad news for
Obamacare’s advocates. Not only did he show skepticism about the
constitutionality of the mandate during oral arguments, he is
thought to be sensitive to public opinion. If that is true, he will
know about and consider a recent New York Times/CBS poll
showing that 68 percent of Americans want the Court to overturn
all or part of the health care law.
All of which suggests that the mandate is a goner. In fact, the
White House is apparently expecting bad news on that front. In late
May, it was
reported that the President is “confiding to Democratic donors
that he may have to revisit the health-care issue in a second
term.” Will the Court also follow the Deputy Solicitor General’s
recommendation to strike down the law’s guaranteed issue and
community rating provisions? Well, Nostradamus is dead and I’m not
feeling very prescient myself. But hope springs eternal in the
human breast.
