Saturday, June 23, 2012

Why It might be important to take our time with the SCOTUS health care reform decision

I mentioned yesterday that I don't do panic. So I'm anxious now as we await the ruling from the Supreme Court on health care reform. But I'm not going into panic mode - either now or when the decision is announced.

There are two possible ways this could go that won't require much time to sort through - if they declare the whole law constitutional or throw out the entire thing. Of course the first would be cause for celebration and the latter would be a disaster.

At this point I think the least likely option will be to throw out the entire law. The idea of negating items whose constitutionality is not even being questioned would be the height of judicial activism. We all know that's likely what Scalia and Thomas (and possibly Alito) want to do. But I'd guess they'll have a hard time rounding up a majority on the Court to go along with them. If they do, we have much bigger problems than the loss of health care reform. We'd have a Supreme Court run amok.

That's why I think the options come down to either finding the whole law constitutional or some breakdown of what stays and what goes. If its the latter, we're going to need to take our time in sorting through the details before we react.

The other day Jonathan Chait did a pretty good job of outlining the possibilities. He starts off by reminding us that ACA has two major goals: (1) cost containment and (2) coverage expansion. He then points out that the items in #1 are not being challenged at all. And as far as #2 goes, half of the coverage expansion includes those who will be added to Medicaid. While that expansion is also being challenged in terms of its constitutionality, it is unlikely that the Court will find that to be the case. And so he concludes:
So if you think of the law as half cost containment and half coverage expansion, and the entire cost containment and half the coverage expansion is almost certainly safe, the part that’s legally up for grabs is the other half of the coverage expansion, or about a quarter of the law.
The quarter of the law that he's talking about includes insurance reforms (ie, requiring insurers to cover those with pre-existing conditions),  the mandate, and subsidies for those who can't afford insurance on their own. In addition, there is a tax penalty for those who chose to not comply with the mandate.

With all this in mind, Chait outlines some of the various possibilities of what the Court might decide.
  1. Leave it all in place.
  2. Technically eliminate the mandate to buy health care while leaving in place the fine for not having health insurance. (Essentially upholding the fine as a tax while technically eliminating the requirement.)
  3. Eliminate the mandate, and the fine, but leave in place the regulations that insurance companies not discriminate against people with health risks and the subsidies for buying insurance.
  4. Eliminate the mandate, the fine, insurance regulations, and the subsidies.
  5. Nuke the entire law.
In options 2-4 you begin to see the possibility for a very complex ruling. That's why - if the Court decides to go there - we'll need to take our time in analyzing it all. Its also why, until we know the specifics, its pointless to strategize a response.

I would also agree with Chait that this kind of measured response will likely not be the norm.
The main point to keep in mind is that the most likely scenarios in which the Court finds the mandate unconstitutional still leave most of the law in place. That is not going to come through in the coverage, should this come to pass, because all sides are going to hype the importance of the decision: Conservatives tend toward triumphalism, liberals tend toward despair, and the news media tends to overplay the importance of whatever thing just happened.
And so I would simply ask that those of us who care about health insurance reform and support what President Obama and the Democrats have done to move that ball forward - please prepare to engage your brains along with your despair/anger/fear if this happens. We're going to need that now more than ever!


  1. Realistically, after Bush v. Gore, I too know that it is a possibility that the entire law be thrown out. You are right that would be a disaster, and unless electoral shifts are greater than I can anticipate it would put off any likely health care solution 20 years, I'd think.

    If they rule out the mandate--for the life of me I can't remember where I read this or if I'm amalgamating a number of things--we get a situation that likely hastens something like single payer, because no insurance model can be profitable if corporations can't deny coverage for preexisting conditions and at the same time people aren't required to carry health insurance. To be profitable the premiums would price the market out of the market. Gov't would have to step in.

    Honestly, I think it's 70-30 the law stays put. Yes, the conservatives want to deny the President a victory, any victory, because he's not one of them, on so many levels. However, blowback for dropping the entire law would be significant, and the law as written enriches corporations.

    I say it's 6-3, not 5-4.

    Roberts knows that if he throws down on this high profile case, he exposes himself for the fraud he is. Better to lay low this once so he can function as corporate lackey in the dark on ten other cases (like Knox v. SEIU) with lower profile.

    If I'm wrong and they strike the whole thing down, we know where to go. Medicare for all. We get to work.

    1. I'm lousy at predictions - although it probably has more to do with my aversion to being wrong than any track record ;-) So I hesitate to jump into the pool.

    2. And me, I've been known to live recklessly (in other times), often at great expense to my well-being. Betting on a cases outcome is a great improvement for me.

  2. Also, you're right about the liberal tendency toward despair, and I'd add a left tendency toward cynicism. The fact is that the reason we don't have national health is that we live in the citadel of capital. If this were Middle Earth, we'd be in Mordor, in economic terms. It's a colossal struggle, and needs to be seen as such. We've made a lot of headway and even the worst outcome will put us leagues ahead of where we were in 2008. If the law is gutted of substance or struck down entirely, people will see their rights actively removed, a very galvanizing ordeal.

    1. You remind me that back when I used to pay attention to what Cornel West had to say, he said that liberals tend towards cynicism and conservatives towards sentimentality. Just goes to show that most people aren't always wrong.

    2. West is right about most things he actually discusses. Unfortunately (on a number of levels) he became something of a public intellectual which drew him away from his really interesting theological inquiry. His theological take on Marx is very important to me.

  3. I paused reading this post at, "We'd have a Supreme Court run amok," Smarty, because that's exactly what we have. And you can add Roberts and Alito to Thomas and Scalia and that makes 4 out of 7. While I appreciate your analysis and Jonathan Chait's, please don't overlook this basic fact. You two are reasonable people trying to predict what unreasonable people will do. The only way you can predict the outcome is to ask yourself what would hurt Obama most, and there's your answer. These people have long since abandoned country and citizenship.

  4. Sorry, I meant 4 out of 9, not 7. I shouldn't type when I'm worked up. : )