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.
- Leave it all in place.
- 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.)
- 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.
- Eliminate the mandate, the fine, insurance regulations, and the subsidies.
- Nuke the entire law.
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!