Friday, May 4, 2012

White House tries to limit SCOTUS options on ACA

Shortly after the Supreme Court heard oral arguments on the ACA, I wrote about what their options would be if they found the mandate unconstitutional. If that is the decision of the majority of the justices, they have to go one step further and decide whether to:
  1. Throw out the entire law (even sections whose constitutionality is not being challenged)
  2. Throw out only the mandate (which would create chaos in the health care industry until Congress either found ways to pay for other provisions or tossed the whole thing out)
  3. Pick and choose which provisions stay and which one's go themselves (based on near universal rejection of this option during oral arguments, it seems the least likely)
Recently the White House sent a letter to SCOTUS suggesting that option #1 would mean havoc in the Medicare system.
In papers filed with the Supreme Court, administration lawyers warned of "extraordinary disruption" if Medicare is forced to unwind countless transactions that are based on payment changes required by more than 20 separate sections of the Affordable Care Act.
While this could likely be dealt with eventually, I find it a not-so-subtle reminder to the Court that there are many provisions in that bill that affect millions of people. If they chose to throw out the whole thing, it will have ramifications both for the court as well as the current political climate.

I have no doubt that an argument like that will have zero impact on justices like Scalia and Thomas. But it could prove persuasive to Kennedy and Roberts. That could tip the scales towards a decision either to rule the whole law constitutional or only throw out the mandate...leaving the rest in the hands of Congress.

Now just imagine an election season consumed by a Congressional battle over whether to toss out the provision making it illegal to deny coverage for pre-existing conditions or find a way to pay for it. That could be where we headed if Republicans get their way on the mandate.

No comments:

Post a Comment