SCOTUS and Obamacare

Okay, so technically I’ve had a cup of coffee, but it is Monday, so cut me a wee bit of slack, please. I’m not going to link this post in the usual way. Just consider it thinking out loud with enough people listening it will surely get me in trouble down the road.

So this week is the week Americans will finally get a SCOTUS ruling on Obamacare. There’s been some discussion in the comments, including the fact that InTrade is covering the odds of the individual mandate being struck down. There’s also some discussion as the the whole thing going.

I don’t think the whole thing can.

If I remember correctly that bill was about 2,000 pages long. America’s representatives had to vote it to find out what was in it. What turned out to be in it was everything from counseling for death to student loans. While much of the bill isn’t to be implemented until after this next election (and yes, we’ve had some fun speculating as to why!), a lot of the provisions that don’t have anything at all to do with health care have gone into effect. How in the world do you unroll all that?

I know it would be a great emotional victory to have the court chuck the whole thing into the trash, but I suspect we’ll see one component, the individual mandate, go down. It will set up an interesting situation for lawmakers. There will be the enormous burden as the cost of the program set to go into place without the requirement that all Americans participate in the pool. Think about that again. No insurer could deny coverage, but healthy individuals would not be required to participate. It’s the worst of both worlds heading into the election. Combine that economic reality with the news the economy refuses to bounce back after years of lackluster performance, and, well, it’s going to get ugly out there.

It’s really rather embarrassing that two years later there’s no absolute understanding as to everything that was in that bill. Maybe Congress could decide no bill has more than 100 pages. Make them vote each issue separately. It would force the pork out and keep an issue more easily comprehended.

And then the day after that rule passes pigs will fly.


  1. Zweefer says:

    Love the idea of 100 page max on bills! I’ll file it right next to mandatory term limits for congress and the Fair tax. Ideas that make common sense, but will never be implemented.

  2. Well thanks Zweefer. 🙂

  3. It’s entirely possible that none of it goes down. Witness the 5-3 vote on the Arizona law, where Roberts and Kennedy joined with the liberals in striking down the law (Kagan recused herself).
    Rhetoric aside, US vs. AZ was a total victory for Obama. AZ can tell its cops to ask people about their status, but Obama has already ordered the feds to stop cooperating. They can call all they want. ICE won’t pick up the phone if they see the call is coming from an Arizona policeman.

    Kennedy’s statements during oral arguments suggested that he might be able to find a limiting principle for the commerce clause that supports an individual mandate. My guess is that Roberts voted as Kennedy did so that he would get to write the opinion. It will either be 6-3 to uphold, or 5-4 to overturn the mandate. If it is 5-4, it could be 7-2 to overturn the mandate and a few related insurance provisions (primarily the “guaranteed issue”). It is unlikely that SCOTUS will rule that the Medicaid expansion itself is unconstitutional (that will likely be 6-3 or 7-2, with Thomas, Scalia, and Alito most likely to view that as unconstitutional, in that order). Only Thomas and Scalia are likely to have voted to overturn the entire law.

    My main point is that opponents should stop assuming that the court will overturn the mandate simply because they were skeptical of it during oral arguments. Lots of times judges are skeptical during oral arguments but rule the opposite way. That happened at the appellate court level in two instances involving this very act. The GOP needs to be preparing for the real possibility that the Champagne corks will be popping at the White House and Solicitor General’s offices around 10:30am EDT on Thursday.

    We’ll find out in less than 3 days, though.

  4. Randy in Richmond says:

    I sincerely hope those corks do pop because the numbers are against Obama on this one. It was healthcare that predominantly motivated voters in the 2010 shellacking of the Dems and could also be so again in 2012. Obama has no wiggle room with the Electoral College. Only 24% of Americans favor keeping the law as is and 54% would like the entire law overturned by SCOTUS. And the problem for the Dems is this is a steady percentage that has held for several years–not a spike or emotional reading.

  5. reality check. no justice will read 2,000 pages. their law clerks might but their bosses don’t want to hear it from them. what the heck, it is vacation time for the supremes.

  6. I’d much rather the whole law be struck down and Obama win in a landslide than the law be upheld and Obama lose to Romney. Romney is only not quite as bad than Obama.

    Regardless of how unpopular it might be, once it starts taking effect, it will be very difficult to unwind. If anything, politicians will keep “fixing” it to address perceived shortcomings. 2012 is probably the last year to get rid of Obamacare. If SCOTUS doesn’t do it on Thursday, then Romney is the last chance, but I’m not optimistic about either right now. First of all, Romney might not get elected, much less with workable majorities in both houses of Congress (you can bet the Democrats will drop their objection to the filibuster if they are back in the minority next year). Second, Obamacare is simply RomneyCare x 50. Whatever Romney comes up with to “replace” it may not be any better.

    The best result is overturning the whole thing, and 4 more years of gridlock.

  7. Ok, I’ll confess to wish-filled thinking KPOM. 🙂

  8. @Dick, the mandate isn’t 2000 pages long. The Solicitor General already pointed to the sections he’d like removed if the majority invalidates the mandate. No doubt the 4 liberals would go along with that if the majority votes to invalidate the mandate. That’s why it’s extremely unlikely that SCOTUS has actually struck down the entire thing. Even if the majority has ruled the mandate unconstitutional, then all it would take is 1 of them to agree not to throw out the whole law for that to win out. It is entirely possible that there will be a 5-4 majority to overturn the mandate made up of the conservatives plus Kennedy, and a 6-3 decision simply to overturn the mandate and related insurance provisions, made up of the liberals, Kennedy, and Roberts.

    My guess is that Roberts is on all the majorities so that he can write a consolidated opinion addressing all the matters, though it is also entirely possible he’ll let Kagan or Sotomayor write some non-controversial part of it (like the part that says that the Anti-Injunction Act doesn’t apply).

  9. Since I work for a health insurance company, I’ve been following this very closely. I’m not going to interject my opinion at all here, but here’s a rough summary of how likely the experts (such as stock analysts who focus on health insurers) seem to think the various probabilities are:

    The whole law stands: 20-25%
    The individual mandate falls but everything else in the law stands: less than 5%
    The individual mandate falls, along with the guaranteed issue and community rating provisions, but everything else stands: 40-50%
    More parts than the 3 provisions mentioned above fall, but other parts stand: 10-15%
    The whole bill falls: 15-20%

  10. Interesting analysis, Ryan. Of course, health insurers would be horrified if the mandate falls but not the guaranteed issue and community rating provisions.

    Big Pharma is a fan of the law as it is. The WSJ had a good article and editorial last week about how they were “bought off” by the administration.

    My concern about the Court ruling is that Kennedy, at the end of his oral arguments, appeared to leave a window open for upholding the mandate under the argument that “health care is different.” I expect Roberts will vote as Kennedy does since he wants to write the opinion. Kennedy wrote the opinion on the Arizona ruling, which with Roberts concurred.

    In other news, so far this month, everyone but Roberts and Ginsberg has written an opinion. I doubt that Roberts would let Ginsberg write an opinion on healthcare even if he votes to uphold the mandate. There are two other cases, one dealing with lawsuits against mortgage lenders, and another on whether a federal law making it a crime to claim to have received a military honor is constitutional. I would guess that Ginsberg will write one of those opinions.

  11. The reason the individual mandate only being struck down is so unlikely is that neither side argued it. The challengers argued that the whole law should be struck down and the Feds argued that guaranteed issue and community rating must be struck down as well. The Court did have a 3rd party come in and argue the position that the individual mandate alone should be struck down, but even the more liberal justices were quite hard on that poor fellow. Striking down the individual mandate but nothing else is just an untenable position.

    If you had a law that made everyone buy life insurance and required that everyone who applies for life insurance (even if they are on their death bed) must get it and the insurers selling it cannot charge different rates on account of varying risk levels (even if they are on their death bed) and then you strike down the part that requires everyone to buy it, you can’t leave the other 2 parts in…. at that point, you are forcing there to be a law that was very different than anything that was passed…. it blows up the whole industry.

    That’s basically the only thing I am certain the court won’t do. Literally nothing else would surprise me.

  12. The problem with the Fed’s position is that it is very complicated. There is a lot of selective cutting that has to be done to get rid of just those 3 positions and keep everything else. There is one instance where the Solicitor General is arguing that in a key part of the bill, sections 1, 3, and 4 must go but section 2 must stay. There are also other connections nearly as obviously tied to the individual mandate as community rating and guaranteed issue. As Justice Alito pointed out, PPACA imposes 700 billion dollars in fees and taxes on the insurance industry. The rationale behind many of those fees was that with the individual mandate driving more people into the market, insurers’ revenue would grow. But take out the individual mandate and you lose the basis for the financing of key portions of the bill. The 5 non-leftist judges are going to find themselves in the same position as the lower court judge who believed that there were:

    “too many provisions dependent (directly
    and indirectly) on the individual mandate
    and other health insurance provisions – which,
    as noted, were the chief engines that drove
    the entire legislative effort – for me to
    try and dissect out the proper from the
    improper, and the able-to-stand-alone
    from the unable-to-stand-alone”

    I tend not to be overly optimistic on these things, but I believe big chunks of the bill are going down in flames on Thursday. Maybe a few sections, or maybe all of it. But the screams from the left will be loud.

  13. Randy in Richmond says:

    The scenerio of Obamacare being struck down and Obama winning the election has no appeal to me. If Romney is elected that would in all likelyhood mean a Republican House and a very divided Senate. I’ll take my chances with a Republican calling the shots in the White House and making all the necessary appointments, especially the openings on the Supreme Court that probably will occur. This President has already shown he has no respect for the law if it does not fit his political agenda.

  14. @Ryan, some things have me worried, though. The Arizona ruling, is the most concerning. While I’m not surprised they ruled as they did, the force of Kennedy’s arguments was stronger than I expected. Plus, lately the liberal justices like Ginsberg and Kagan have been making small talk and jokes about the circus surrounding the healthcare ruling, while Scalia was downright fuming in his dissent to the AZ ruling, which he gave from the bench. The liberals seem calm and relaxed. They obviously know something we don’t. The question is whether they are happy about it or are just resigned to what they are going to announce Thursday. A 6-3 vote to uphold the law in its entirety, which I now think is the most likely result, would be an overwhelming boost for Obama, and would solidify ObamaCare. That and the Arizona ruling would turn around what had been a bad month for him and a good month for the country.

    @Randy, it’s time to face reality. Romney is only going to be elected if there is another disaster between now and November 6 (possible, but not something I want). Plus, even in your scenario, ObamaCare survives. A bitterly divided Senate won’t agree on a repeal, and probably won’t agree on decent Supreme Court nominations, either.

    This country can survive 4 more years of a weakened Obama a lot better than it could decades of a strengthened ObamaCare.

  15. KPOM – weren’t you wrong about Walker winning, too? You go all grumpy and negative prior to the big stuff. Like you are preparing for the worst and then can claim to be pleasantly surprised when it doesn’t come to fruition.

    Not that I know anyone who does that or anything…

  16. The differences are this isn’t in the hands of the people, there are no public polls of the people who matter, and this is an uphill battle. Obama went into this battle with 4 sure votes on the Supreme Court, vs 2 sure votes against. Alito also appeared to side with Scalia and Thomas very quickly. This meant that Obama just had to flip either Roberts or Kennedy (more likely Kennedy, with Roberts* going along for the ride). The current court has 4 liberals, 3 conservatives, and 2 swing votes (Kennedy more so, but sometimes Roberts, as yesterday showed).

    *A Chief Justice’s vote can be more strategic, because he can choose the author only if he’s in the majority. Thus, if his vote “doesn’t matter,” he can side with the majority if he thinks he’ll have a greater impact by choosing the author of the opinion (possibly himself) than by choosing the author of the dissent.

  17. I’m still stuck on my original gut feeling from the Say It Here post..(despite the InTrade odds :)) ..I have a bad vibe on the expectations of a reversal, precisely as KPOM outlined. Strategically , odds are against a reversal to my way of thinking. Kennedy just seems likely to have gone along with 4 “sure” votes leaving Roberts with the decision to cast his vote in order to write the opinion.

  18. RL, that’s also Tom Goldstein’s view on SCOTUSBlog.

    We’ll find out in about 20 hours. I hope Goldstein is wrong, but I think he’s right. I see on Intrade it has fallen to about 74%.

  19. Ryan. Insurance companies are in business to make money, come hell or high water. Death and health are their path to fortunes. Would you strike out the provisions in the new law that “force” health providors to pay for treatment where the patient has a pre-existing ailment or cannot afford to pay exhorbitant premiums only to have the insurer deny coverage. Health insurers now dictate to the patients, physicians and hospitals. As a lawyer I represented hospitals and injured persons and know the game. The only coverage universally accepted now is medicare. the rest are up for grabs. I fully understand that the new law is not perfect and has some flaws that need correction. So, why haven’t our well paid congress done that ?

  20. @Dick, actually a lot of doctors don’t take Medicare, because its payment rates are pretty awful.

    There are better ways of dealing with the issue of pre-existing conditions than forcing insurers to take them on. If someone has a pre-existing condition, it really is no longer insurance, at least with respect to that condition. Unfortunately, a lot of state and federal legislation and regulation limits the kind of insurance products that can be offered, which makes “carve-out” insurance policies more difficult to offer. Ideally, people could purchase “change in status” insurance that would provide payments in the event that a person acquires a pre-existing condition that renders him uninsurable, but that wouldn’t pass muster in most states.

    Health insurance took a long time to get as messed up as it is now. Decades of social engineering by the left and the right got us dependent upon employer-provided health insurance, unlike just about any other type of insurance out there, including car insurance, property and casualty, and life insurance.