Posted on 03/28/2012 4:17:53 AM PDT by Servant of the Cross
If yesterday was the dramatic climax of the health case, then today is its denouement. The Court will consider two questions today: this morning, If the mandate is unconstitutional, how much, if any, of the PPACA may remain? This afternoon, Is Medicaid expansion coercion of the states?
These two issues are decidedly less sexy than the mandate, and in all probability, more likely to go the federal government’s way. In general, the Court takes a deferential stance to the legislative branch. While it may decide that Congress overstepped its power by enacting the mandate, it’s unlikely to issue them the rebuke the states and private respondents hope to see on tomorrow’s issues.
MORNING: Severability
In certain bills – generally those that include constitutionally controversial policies – Congress will include a “severability clause.” They’ll say that even if principle X in this bill is found to be unconstitutional, the rest of the bill may remain intact. They can avoid scrapping an entire bill, most of which may be perfectly sound, for the sake of one questionable element.
The individual mandate is one such policy that may have warranted a severability clause; it’s a 2,000-plus-page behemoth. Why would they want to risk throwing it all out if just the mandate is found to be unconstitutional? (Of course, most conservatives would be perfectly fine with that in this case, but the theory holds true.)
However, the PPACA doesn’t include a severability clause. This has been the subject of speculation from the start. Did Congress intend for the entire bill to go along with the mandate? What about the pieces of the bill that didn’t rely on the mandate? Was the lack of a severability clause an oversight, or deliberate?
If the Court finds that the rest of the bill may stand, even without the mandate – and then Congress chooses not to repeal the rest of the law – then the healthcare industry will be thrown into chaos. Sick people, now guaranteed coverage, will flood the market, and without healthy people to keep the cost of premiums acceptably low, insurance will become even less accessible than before.
Thus, no one is arguing that the mandate alone is severable. As on Monday, a court-appointed lawyer will present that case, appealing to the Court’s general unwillingness to strike down more than is absolutely unconstitutional.
The federal government and the states and private respondents will then wage a battle over Congressional intent. Typically, the Court doesn’t concern itself with what Congress meant, but in this case, there are compelling reasons to consider it.
The federal government will argue that most of the law may remain, but that the guaranteed issue and pre-existing conditions clauses were not intended to go into effect with out the mandate to prevent “adverse selection.” Unless the mandate forces healthy people into the insurance market, too, only sick people will jump into the market, thereby exacerbating problems within the healthcare industry, and since the PPACA was intended as a reform, it’s laughable to imagine Congress wanted those provisions to remain if the mandate went.
However, the federal government will also appeal to the Court’s deferential nature, and will argue that it shouldn’t take too heavy of a hand with the law. Cut out the tumor, not the whole organ, so to speak. The mandate had little to do with the rest of the law, so let the remainder stand.
The states and private respondents, on the other hand, will point to the lack of a severability clause as proof that Congress took an all-or-nothing stance on the law. Furthermore, they’ll argue, Congress never would have passed the bill without the mandate. If it went, Congress never intended for the rest of it to stand. The mandate was the star of the show, and when the star is sick, you don’t send the backup singers out on stage anyway. You cancel the show.
When ruling, however, the Justices are likely to take a far more deferential approach to the law. It’s extremely unlikely that they’ll strike down the entire thing. As the 11th Circuit noted (along with many conservatives), most of the law has little to do with private insurance, and doesn’t need the mandate in order to take effect. The Court is much more likely to consider the federal government’s narrower view of severability, and could agree with the fact that certain pieces of the law are inextricable from the mandate. It may only strike down the mandate and nothing else, leaving Congress to undo the potential damage by guaranteed issue and such, but the Justices could likely be persuaded that if the mandate goes, so must the policies it supported.
AFTERNOON: Medicaid and the States
To ensure coverage for those individuals who are too poor for the find-private-insurance-or-pay-a-penalty ultimatum, the federal government expanded Medicaid coverage. First, they said that everyone who is already eligible for Medicaid – i.e. those at the poverty line with dependent children – must enroll. Then, Congress expanded the eligibility requirements to include those at 138% of the poverty line and all adults, not simply those with dependent children.
Medicaid is administered by the states, but they receive funding from the federal government to help cover the costs. In the light of this expansion, the federal government has given the states a choice: accept our expansion, and we will cover 100% of the cost through 2020. After that, you’ll have to chip in some, but only 10% of the cost falls to you. And sure, you can reject the expansion. But if you do, you get no money. Not just the new money to cover the expansion. We’ll cut you off altogether, so the people who were already eligible become entirely your responsibility.
It’s a Vito Corleone-style proposition, to say the least.
Of course, the federal government has the right to attach strings to its money – think speed limits and highway funding – but is there a limit to the requirements the feds issue?
The federal government will argue that Medicaid is a contract, and one that the states have entered voluntarily. The government has always reserved the rights to change the stipulations on granting federal funding to the states. The states knew this when they signed on to Medicaid. Besides, they’re footing the bill for almost all of the new enrollees. In fact, this isn’t a federalism issue at all, they’ll argue. Instead, it’s a partisan one. The states have a dispute over a budgetary matter, not a constitutional one. There are no nefarious coercive elements to the Medicaid funding; the states just want the money without the new enrollees.
The states, by contrast, will argue that this is coercion, and will point to a precedent the Court set a few years ago in a South Dakota v. Dole. In that case, the Court upheld a stipulation – raising South Dakota’s drinking age – attached to a highway bill. However, the opinion pointed to instances where “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure becomes compulsion.’” The states will push the Court to give weight to that statement by arguing that the federal government’s all-or-nothing stance on Medicaid pushes the limits of federalism.
The Court will likely rule against the states, however. Medicaid was, after all, a voluntary program, and even if the states don’t like the current terms for access to funds, they entered into the program on the premise that Congress could change those terms. Again, the Court doesn’t like to step on Congress’ toes, and Dole is a test without an answer key already written. It’s unlikely this will be its limit.
Of course, there’s still nothing stopping Congress from repealing the law. If things go the way of the GOP in November, the Court’s ruling on Medicaid and severability won’t be the final word on the matter. The Court simply arbitrates the limits of Congress’ power. For example, on the severability issue, it doesn’t require the legislative branch to keep the rest of the law. They can get rid of it through their own means, so long as they have the votes.
How about that “wellness” stuff? You can get charged more for smoking or being fat, but no extra charge about other risky lifestyles. Nothing about drug use. Nothing about sexual lifestyle (some STDs are fatal - AIDS, some HPV cause cervical cancer). And even participating in sports can increase medical expenses significantly when you consider spinal injuries. Ever drop by the emergency room of a soccer-mom town on the weekend - filled w/kids injured on the field.
What that would mean, is that millions of Americans who thought they were getting a wonderful healthcare package, will be disappointed. Sure, they were getting a turd sandwich, but they don't see it that way. They think they are losing a great thing.
The Republicans ought to be in position to really reform health care. Tort Reform would be an important part of any Republican counter-effort. My worry is that the Republican Establishment will just sit back smugly and say, "We won". That's a great way to lose in the long run.
Eye Exams, New Eyeglasses: Does ObamaCare cover eye exams, new eyeglasses, and eye operations? Thanks.
As I've said for years, this has always been the Democrat plan: Destroy private health insurance and take over with a single-payer system.
Its money? Really? Its money?
Quite correct.
After hearing the audio of Ginsburg yesterday, my contempt for her has reached new heights.
I didn’t think that was possible.
If the mandate goes...the bill is dead. Without the mandate...it cannot be paid for.
I think Obamacare is going down.
“Don’t count your chickens before they hatch” comes to mind when I listen to those predicting the courts decision.
I pray you are right
I'm afraid you're right.
During the Supreme Court hearings on the Gore/Bush presidential election it became clear to me that Ginsburg is probably the dumbest justice ever to sit on the USSC.
Afraid not. Since when did THAT stop Democrats from spending?
I don’t think they really care if it is struck down. They are VERY patient, and so far they have successfully convinced almost half of the population that healthcare is a “right”. Sonner of later they will convince enough and give it another shot.
I was wondering about this yesterday. Would their rather transparent disrespect of the Constitution, in contrast with the general public’s sense that Obamacare is unconstitutional, make a greater percentage of the population realize how important it is to have a president that will appoint Originalists to the court?
Another thought:
“This question concerns whether the individual mandate is integral to the law, or whether the mandate is simply a minor detail in the entire law. There is good reason to think that the individual mandate is the cornerstone of law. The mandate was touted by the bill’s supporters as the central to the bill’s viability because it would purportedly hold down costs and widen health insurance coverage. One of the bill’s lead authors, for example, said:
“[The Congressional Budget Office], again, states this requirement is one of the most critical pieces of reform. Without it, we lose coverage for millions of Americans. Without it – without that reform – premiums could spike by up to 15 to 20 percent in the non-group market.”
Although the law will not likely accomplish either of these goals, the fact that the law’s supporters made these arguments shows us the mandate is vital to how the law was supposed to work, and that the law’s authors intended the mandate to work together with the law’s other provisions.
If the Court attempts to simply strike the mandate, it will face serious additional Constitutional questions. The structure of the Constitution establishes that Congress writes law, the Courts uphold the law, and the executive branch implements the law. If the Court now strikes down the individual mandate but upholds the rest of the law, we would have an entirely new law that was neither passed by Congress nor signed by the President. The Supreme Court would have essentially turned itself into part of the legislative branch, a violation of constitutional provisions we know as separation of powers and checks and balances.
Therefore, if the Court finds the mandate unconstitutional, it must strike down the law in its entirety.”
... Senator Mike Johanns, Nebraska
Would it make the Republican Establishment realize how important it is to have a president that will appoint Originalists to the court?
Could the health-care law work without the individual mandate?
“A system mandating that insurers take all comers at close to the same premium can work — but only if it also imposes a powerful “individual mandate” requiring that everyone buy insurance.” (Fortune, Health Care’s New Hidden Danger, 02/02/2010)
“The biggest real-world risk to these people would be if the court were to overturn the mandate yet allow the rest of the health-care law to remain in place, driving premiums ever upward…An individual mandate was essential to make the plan work. Without that larger pool of premium-payers, there is no feasible way to require insurance companies to cover all applicants and charge the same amount, regardless of their heath status.” (The Washington Post, 116 billion reasons to be for the individual mandate, 116 billion reasons to be for the individual mandate, 03/20/2012)
From the Concord Coalition:
“…the individual mandate is a crucial leg in the stool of the expanded coverage provisions of the ACA. Under the legislation, insurers will no longer be allowed to discriminate against the sick when they attempt to purchase insurance — a change that has widespread support, even among those opposed to the rest of the ACA. However, that provision alone gives healthy individuals an incentive to hold off purchasing insurance until they become sick, because there is no reason to pay for health insurance until then. This would lead to a sicker — and thus, more costly — pool of insured individuals. Insurance premiums would dramatically increase. Government spending would skyrocket as a result, because the ACA provides subsidies for individuals to purchase insurance. The way to avoid this “death spiral” of increasing insurance costs is to guarantee a healthier insurance pool by making it either more attractive for the healthy to purchase insurance, or more costly for them to avoid purchasing it. The latter is the model used in the ACA, following the design of insurance market reforms enacted in Massachusetts. There, they mandate that everyone be insured and impose a penalty on those who are not. This system has been successful in having near-universal coverage without a sicker pool of insured. If the courts rule against the mandate but leave the rest of the insurance market reforms and subsidies in place, Congress will be faced with the choice of a world with dramatically increasing premiums for constituents and dramatically higher government expenditures, or the need to pass new legislation addressing the insurance pool issue, which will likely spark intense partisan debate.” (The Tabulation, From a Budgetary Perspective, the Health Care Individual Mandate is Not Severable, 12/16/2010)
“...and give it another shot.”
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They no longer have control of the House....and the bill is SOOO unpopular, Senators will all have a great deal of pressure from their constituents over this.
But they think Barry is a shoo-in and they want more dykes, racists and nuts on the court so they will vote his way.
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