RSS
The 5 possible fates of 'ObamaCare'
Despite skeptical questions from a swing justice, the Supreme Court may very well still uphold the president's overhaul of the health-care system
 
Edward Morrissey
Edward Morrissey

After almost three years of debate, analysis, and legal action, the dominant political issue of the Barack Obama presidency has finally made its way to the highest level of the third branch of government. On Monday, the Supreme Court began hearing arguments on the Patient Protection and Affordable Care Act (PPACA), better known by its colloquial name, ObamaCare. The court has scheduled a nearly unprecedented amount of time to hear a number of issues, clearly planning to take a comprehensive look at the disputes over the constitutionality of the bill.

This leaves the political players with little to do — at least for now. Those who have the resources to file arguments with the court have long ago done just that through amicus briefs. Others have fought battles attempting to force the recusal of Justices Elena Kagan and Clarence Thomas, none of which were taken seriously, and which were mainly intended to shape the battleground of public opinion after an eventual Supreme Court decision by delegitimizing whatever the court produces. For now, though, the interested parties can do nothing more than follow along with the arguments, interpret the questions and remarks from the justices during oral arguments, and attempt to predict the outcome based on preexisting assumptions and desires.

During Tuesday's argument, swing justice Anthony Kennedy was enormously skeptical of the individual mandate.

While the case has a wide range of nuances, there are only a relative few potential outcomes the justices can produce, at least on the broad questions. Each of these would have significant political impact on Obama's presidency and re-election hopes, and on the political parties, insurers, states, unions — practically every stakeholder in American politics. While quite a few commentators are handicapping the arguments, let's take a look at the fallout of the different options the Supreme Court has at its disposal.

1. Decline to make a decision at all
This is the least likely outcome, but still a possibility. The first day of argument mainly addressed whether the federal courts should even hear a challenge to the PPACA until it actually goes fully into effect, thanks to the restriction on challenging taxes until they have been exacted. This relates to the individual mandate, which the Obama administration argues — in court, at least — is constitutionally valid through Congress' power to tax. If that's true, then the court shouldn't actually accept the case until the mandate comes into force in 2014. However, the court could have easily refused to take the case if the justices wanted to avoid a decision, and the first day's arguments showed that the tax argument provoked skepticism from even liberal Justices Stephen Breyer and Ruth Bader Ginsburg.

If, however, the court did decline to issue a ruling, the main political reaction would get aimed at the court itself. None of the major parties to the case want a decision delayed. Punting the question for another two years would produce a backlash. The relative position of the political players would remain the same as before.

2. Uphold PPACA in its entirety
 ObamaCare opponents have made the argument that a Supreme Court decision upholding ObamaCare would energize them to elect a Republican president and Congress that would repeal the bill instead. However, a Supreme Court embrace of ObamaCare would make that more difficult rather than less. A 5-4 vote upholding the law might give Obama's opponents a boost, but it would also allow Democrats to argue to independents that their efforts were constitutional and necessary all along. Any support from the conservative jurists on the Supreme Court for the bill as a whole would doom the effort to paint ObamaCare as a radical effort and force its opponents to argue a more detailed case against it as a bad model for reform, which would necessarily be more difficult to communicate.

3. Overturn the individual mandate alone
Easily the most unpopular part of the bill, the individual mandate, which requires Americans to obtain health insurance, is also the most constitutionally fraught. It's also the financial linchpin of ObamaCare. Without it, the insurers who gave qualified support for the PPACA would go broke, thanks to additional must-insure mandates and an abolition of bars on pre-existing conditions. Given the already-expressed skepticism from Breyer and Ginsburg about the argument that the mandate is a tax, the real possibility exists that the court may strike this down, and not just on a 5-4 vote. During Tuesday's argument, swing justice Anthony Kennedy was "enormously skeptical" of the individual mandate, as CNN's Jeffrey Toobin put it. Indeed, the punditocracy's instant analysis suggests the mandate is not long for this world.

4. Overturn the entire bill
Two lower courts split on the question of whether a lack of a severability clause in the PPACA meant that Congress intended the bill to be an all-or-nothing proposition. If the court determines that one or more of the components are unconstitutional — especially the central individual mandate — and that Congress deliberately chose not to include a severability clause, then the court could throw out the entire PPACA.

If the court strikes down the mandate on a 5-4 split and/or throws out the whole bill, mandate advocates could argue that the court took a political rather than legal position. But that won't convince anyone except the true believers. With a majority of people already opposed to the individual mandate, it would only deepen their impression of ObamaCare as a radical departure, and make it even less likely that Obama could fashion a way to salvage the framework of his reform — even if House Republicans were inclined to help Obama escape from the trap. If one or more of the liberal justices join in declaring the mandate and/or the entire bill unconstitutional, then the PPACA becomes an albatross around Obama's neck, and also those Democrats in the Senate running for re-election.

5. Overturn the Medicaid expansion alone
Almost lost in the drama over the individual mandate is the fight by some states against the forced expansion of Medicaid. The states argue that this is an abuse of federal discretion, but that's not likely to convince many justices. The federal government's jurisdiction on Medicaid is pretty well established, and states still have the choice to opt out of it entirely, no matter how politically risky that would be. If the court overturns this without overturning the entire PPACA, it might be a big surprise to the few paying much attention to it. 

Overturning it would mean an end to the limited claims Obama has to covering more Americans through ObamaCare, and it might force Congress back to the drawing board for further reform. Since this hasn't been a high-profile question in the public debate, it would be unlikely to have much impact on Obama, Democrats, or Republicans.

The Supreme Court won't provide any of the answers until late spring, or early summer, most likely, so we have a long time to find out how this all ends. The political situation could change significantly before the court hands down its decision, thanks to rising gas prices and slow economic growth. However, whatever the court chooses, it will probably still be one of the most significant drivers of this upcoming election.

 

THE WEEK'S AUDIOPHILE PODCASTS: LISTEN SMARTER

Subscribe to the Week