Thursday, March 29, 2012

SCOTUS: All or nothing on ACA?

On Monday I talked about the four arguments SCOTUS would hear about health care reform: anti-injunction act, the mandate, severability and medicaid. While the arguments on the constitutionality of the mandate were perhaps the cornerstone, it appeared yesterday that the issue of severability is likely to shape much of the outcome.

What the court will have to decide is, IF they determine that the mandate is unconstitutional, how does that affect the rest of ACA? To me the argument hinges on the role of the court. Their job is to rule on constitutionality. The only sections of ACA that are being questioned on those grounds are the mandate and medicaid expansion (we'll leave that one alone for now). The problem is that the mandate is the funding mechanism by which many of the other measures are made possible. And so the court's options are as follows if they find the mandate to be unconstitutional:

1. Throw the entire ACA out. I think this is troubling for much of the court because it was clearly legislative intent to pass the law and this would be a HUGE over-reach of the court.

2. Leave the rest of the law standing. This would cripple the insurance companies because so many provisions are unaffordable without the mandate. It would demand immediate legislative action to forestall the collapse of the entire health care system.

3. Pick and chose which provisions to let stand. There was apparently a lot of discussion about this in court yesterday with justices asking what criteria they should be expected to use. Reading about that demonstrates how it leads the court into extra-judicial territory.

Some experts say that this dilemma makes it less likely the court will rule against the mandate.

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

As I said on Monday, I'm not going to get into the business of predictions here. The truth is - we're going to have to wait until June to hear the outcome. But I do suspect that this severability issue will have significant impact on the decision.

The other thing that came out of the hearing yesterday is actually something I find pretty depressing. Apparently during the discussion of how to decide what provisions of ACA to let stand if the mandate is found to be unconstitutional, Justice Scalia wanted to take something from the bill to use as an example. What he chose to talk about was the so-called "cornhusker kickback"...something that was removed from the bill before it was passed.

What this indicates is that at least one justice is deciding what is perhaps the most important SCOTUS decision of our lifetimes without actually knowing what is or is not included in the legislation. Since that issue was a favorite right wing talking point as ACA was being drafted, it is clear that Justice Scalia paid more attention to things like Faux News than to what actually happened in Congress. What we know about people like that is that they'd be better informed if they got no news at all. It's a strong red flag signal that when it comes to Scalia's vote - it will be one of ideology trumping actual information. I guess that comes as no big surprise, but its pretty telling nonetheless.


  1. My perception is either we trust this brilliant man or we dont. My perception of this ACA play is that he set this up himself. He wanted the repugs to do just what they did...oppose their own idea and take it to SC! Thats why he pushed court to take it now. They are in the cross-hairs=if SC throws out mandate, most insurance companies lose millions of new customers and a boatload of money! If they throw the whole law out, the millions of people already getting benefits will defintely vote for PBO. I think this is very exciting and I have no doubt PBO planned it this way.

  2. It's not enough to vote for the President. If the law is struck down in its entirety (seems unlikely to me), then re-electing the President is a hallow gesture if voters don't also give him a Congress that he can work with to get things done.

    Thanks again for your level-headed and brilliant insights, Smartypants.

  3. This is great analysis.

    Just to clarify they didn't take the "Cornhusker kickback" out of the original bill it was taken out in the Reconciliation bill that was passed separately. Not that it even really matters that much the fact that he's referring to it says way more than the details of the law or the process that was used to pass it.

  4. WTF is it about scalia that people ALLOW! he is INAPPROPRIATE, does he not know his words are being recorded into transcripts?? of course he does, he does not CARE because supreme court activist think they can get away with ANYTHING and its tough sh*t for americans they screw over. like the imminent domain case, telling people the greedy local taxation authorities can FORCE you to sell your homestead if they can make more money on it. i would call him a dinosaur except dinosaur's have some purpose - they teach.

    i've listened to the oral argument four times on cspan- and today i caught another of scalia's remarks that were out of bounds. he INTERRUPTED kagan and said "the other IT the govt will next require is to FORCE people to EXERCISE - require them to join fitness gyms" now ANYONE knows that the old middle class we had could afford fitness memberships but today when food is sometimes out of reach the "workout gym" belongs to the AFFLUENT!

    scalia's remark was CLEARLY a swipe at michele obama's fitness and nutrition program. these justices are supposed to at least ATTEMPT to be unbiased and hear the case without prejudice. and i know that the liberal ones often make statements that seem to go in the direction of the premise of health care. but they also ask TOUGH questions and force the govt attorney to make a case, they do not keep throwing out statements like scalia and alito do. roberts asked a couple of good questions, and accepted a couple of premises that lead me to believe he will think TWICE before he speaks. scalia also made SEXIST remarks about some theoretic robber telling him "your money or your life" like the govt was ROBBING teabaggers to provide health care - EXCEPT AFTER SAYING IT TWICE HE CHANGED IT TO "YOUR MONEY OR YOUR WIFE" and started cackling! WHAT A PIG.

    also the teabagger judges are SO out of touch with reality, they still think you can go to a hospital ER and get "care". what you get is a referral to go to a doctor for "care" and when you call that dr. they tell you to bring in HUNDREDS of dollars which is like telling you NOT to come. and i'm talking about my son with a broken hand or my older son's girlfriend who broke her ankle at work. in both cases they were UNABLE to get a cast, the had to keep ace bandages and splints on for months until they could afford casts. in my sons case i got his medicaid turned back on because he was under 21. once he turned 21 teabagger texas has tried to keep throwing him off. but he's on SSI so he gets it. the girlfriend needed surgery and NEVER got it. eventually her broken ankle mended but not correctly. and she works three part time jobs and is a college graduate. she was really counting on the pre-existing clause so if she ever gets health care she can get her foot fixed.

    i predict the law will be upheld, because unlike a teabagger judge who can arbitrarily rule without telling why, these justices will be forced to write opinions. and those opinions go into the history book, they must contain actual case law and some kind of PROOF that the 25 red states are INJURED parties when the law has yet to be implemented.