When it comes to the future of Obamacare, now that a month has passed since the oral arguments were presented to the Supreme Court, we wait passively, lulled to sleep by the slow process of our judicial system (and this case is being pushed through quickly!) There's a false sense of security when it comes to Obamacare that this is an all or none proposition. Somehow, we have come to think if the SCOTUS decision is unconstitutionality on the individual mandate that the legislation just magically disappears. We tend to forget if the Supremes say "Not Constitutional" there's still the matter of severability, the idea that a portion of the bill can be struck down, while the remainder remains intact. Apparently, reporters at the hearing tweeted that "Kagan indicated if a choice between leaving half-a-loaf and no loaf, half-a-loaf wins." And the Wall Street Journal's Janet Adamy tweeted, " Ginsberg: If they must choose between wrecking operation and salvage job, salvage job is more conservative." The Associated Press reported that "Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, Chief Justice John Roberts, and Antonin Scalia were open to the idea that the wide-ranging law contains provisions that can be saved," even if the individual mandate requiring Americans purchase health insurance is struck down.
And then there's the small problem that every day that passes, there's more and more of the Patient Protection and Affordable Care Act being implemented, slowly and methodically, piece by piece. To simply expect each and every one of those changes to simply be reversed, or done away with, even if the Court said the entire bill is unconstitutional and must go. And, of course, there's the little matter of Congressional repeal required to actually strike down the current legislation, not a "gimmee" by any means.
Within the PPACA there are requirements for health insurance companies to cover everyone at reasonable costs, regardless of any pre-existing or debilitating medical conditions. This falls under the "guaranteed issue and community rating provisions" within the bill. In fact, only Sotomayor questioned the need to keep this provision, and so it's assumed that the Court has already decided if they strike down the individual mandate, they should also do away with the guaranteed issue and community rating provision, as they recognize that this provision is unsustainable, impractical, and will ultimately result in private insurance companies ultimately failing and declaring chapter eleven.
Can we accurately read between the lines? Has the High Court tipped their hand? Do we now get a sense of their voting conscience? Using plain old deductive reasoning, it does appear that the Justices are hinting to us that they may indeed declare the individual mandate unconstitutional. Certainly, if they don't it presents a whole host of new problems for them. What requirement will the government place upon the American people next? But, a vote against the constitutionality of the mandate is now beginning to suggest that the absence of the severability clause is likely going to be overlooked. From the justices initial reactions, it seems they have decided that they can strike down certain portions of the legislation, while leaving the bulk of the law intact.
Of course, if they go about exercising their apparent right to "line-item veto" individual parts of the law, they may end up backing the American people into a corner they aren't anxious to reside. If the individual mandate is struck down, and I do believe the Congress has overstepped its boundaries with this requirement, then how can the law effectively improve the issues we currently have with our health insurance system. If the "45 million" Americans who are uninsured simply choose not to purchase health insurance, as the individual mandate had been removed from the PPACA, then what good is anything else in the bill? And, didn't we initially begin this discussion of health reform back in the 1990's under the Clinton administration. If the main reason to even consider health reform for America in the first place was to assure that all Americans had insurance, and if the requirement to purchase or acquire health insurance is removed, what prevents those citizens within the uninsured pool who have made the conscious decision to not carry health insurance for whatever the reason form now sticking to their previous stance of not having any health insurance. And certainly, the remainder of the PPACA is not so overwhelmingly attractive that this subgroup of the uninsured will now suddenly be unable to live without the government's health plan.
And, basically, I'm only looking at one of the many tenets of Obamacare, and one can see how the "line-item veto" approach to judicial matters, is fraught with its own set of problems. Even though I am completely opposed to the PPACA, for it to have any chance of accomplishing anything positive at all, it must be passed in its entirety, or removed in its entirety. A cafeteria approach to "fixing" this legislation only causes even more chaos and complication. If you asked me, I'd suggest the only real solution is for Congress to repeal the entire PPACA, in spite of any oral arguments taken before the Supreme Court, and then we start over with a reasonable and realistic health reform plan, that maintains its roots in the private sector, as does the Ryan plan. But, I doubt that this is the course of action we'll take, as its way too logical and practical.
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