Kagan: Impartial Cheerleader

In late March the Supreme Court of the United States (SCOTUS) entertained arguments for and against the constitutionality of the Affordable Care Act (ACA) passed into law two years earlier. In the wake of these arguments, speculation has abounded about which direction the court will take. Will it uphold the entire law, overturn the entire law, or overturn only some of the law’s provisions? The main issue of constitutionality stems from the individual mandate to purchase insurance. Is it simply regulating commerce, or is it coercion? Can Congress compel commerce? A decision is expected in June.

Reading the Justices

On March 29, the Associated Press speculated, “Questions at the court this week showed a strong ideological division between the liberal justices who seem inclined to uphold the law in its entirety and the conservative justices whose skepticism about Congress’ power to force people to buy insurance suggests deep trouble for the insurance requirement, and possibly the entire law.”

An AP article in early April said, “Justice Antonin Scalia, who appeared strongly in favor of striking down the entire law, was the most outspoken in his disdain” for Congress. According to the article, Justice Ruth Bader Ginsburg suggested that parts of the law not directly related to the insurance requirement could remain in effect. She said, “So why should we say it’s a choice between a wrecking operation…or a salvage job.”

Jeffrey Toobin, a CNN legal analyst, said that questions from the justices may indicate that the law may indeed be in “grave danger.”

Some see Justices John Roberts and Anthony Kennedy as key to the direction the court will take.

Others Speculate

Rose Ann Demoro, executive director of National Nurses United, wrote that Obamacare surviving a court challenge looks “increasingly dim” based on her observations.

From Mother Jones, “Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court…Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense,” of ACA, “and one that may well have doubled as its eulogy.”

Wayne O’Leary, a writer who specializes in political economy, wrote (The Progressive Populist, 4/1), ACA, “…relies on overlaying rules and regulations atop the existing ramshackle private health insurance system, rather than on fundamentally changing that system…Lobbyists wrote the health care law and attorneys will interpret it…Expect a proliferation of lawsuits in upcoming years, assuming the Supreme Court does not invalidate the entire Rube Goldberg contraption by judging the individual mandate unconstitutional, a distinct possibility.

Can a Vote to Overturn Lead to Single-Payer?

TalkingPointsMemo’s Sahil Kaptur proposed that overturning ACA could lead to single-payer. Kaptur explained that the move to single-payer, while “fraught with political peril, and therefore far from inevitable, …may wind up being the only way to prevent the demise of the unsustainable, existing system from leaving many more millions without access to health care.”

Retired pharmaceutical executive Jim Russo said that if the Supreme Court overturns ACA, the move could “breathe new life into single-payer.”

Wayne O’Leary suggests a better way to achieve universality by “gradually ratcheting Medicare coverage down from age 65 until universality was reached…” This offers the advantage of lower costs to consumers and for administering the system.

Constitutional law professor Adam Winkler told TalkingPointsMemo, “The economic, social, and political pressure for health care reform aren’t going to just disappear,” if SCOTUS overturns ACA. “There’s a reason every major industrialized country has national health care. If the Supreme Court invalidates the Affordable Care Act, we are likely to see a government takeover of health care in the next decade.”

Robert Kuttner, in The Huffington Post, wrote, “Medicare is a single-payer program for the elderly, and nobody challenges its constitutionality. Toss out the mandate, and single-payer might be taken more seriously.”

What Do You Think?

The fate of ACA is in the hands of SCOTUS. We eagerly await their decision some time in June. Anyone want to place a bet on how this scenario will play out?