What will happen with ObamaCare?

I don’t know and it is often foolish to predict results based on oral arguments. Still, here goes.

The Supreme Court has been hearing oral arguments this week on the constitutionality of ObamaCare.  Although I have never argued a case before the Supreme Court, I have argued cases before the Court of Appeals for the D.C. Circuit and, many years ago, before the Court of Military Appeals.  Although then fully familiar with what I had said in my written presentations, what others had said in theirs, and the previous positions of the various judges on related issues, I found it quite difficult to guess who would win. That said, here is a transcript of the Wednesday morning oral argument.

It appears to be a common view that the nine Supreme Court justices will ultimately break five to four on the constitutionality of the individual mandate, although there seems to be less agreement on whether the ultimate decision will be five to four for or against it. Some suggest that the arguments presented on Tuesday by the Obama team were poorly presented and that the White House was surprised by the questions asked. Could be, I don’t know.  According to this article,

NN Legal Analyst Jeffrey Toobin, following Supreme Court arguments on President Obama’s health care law, said on CNN that based on what he heard inside the Court, things didn’t look good for proponents of the law.

“This was a train wreck for the Obama administration,” he said. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong… if I had to bet today I would bet that this court is going to strike down the individual mandate.”

Toobin added that he felt that U.S. Solicitor General Donald Verrilli simply wasn’t prepared for the conservative justices.

Be that as it may, if the individual mandate is sustained, which I doubt will happen and I hope does not, then the severability issue obviously vanishes.  If the insurance mandate is held unconstitutional, today’s oral argument as to the consequences for the rest of the 2,700 page Act will come into play.

According to ScotusBlog (it was later revised and substantially extended, but without changing this part),

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

I disagree.  True, deciding what to do with the remainder of ObamaCare if the individual mandate falls could be difficult for the Court unless all the rest of ObamaCare falls with the mandate. To attempt substantially to rewrite the entire Act, without the mandate, would take the Court far beyond its traditional role and well into the legislative sphere where it does not belong.  However, upholding provisions that could stand independently of the mandate without at least minimal judicial re-writing and rejecting those that could not be or that would require significant rewriting would be easier but certainly time consuming. Still, it could be done (probably mainly by the Supreme Court clerks).  As noted by Justice Breyer at TR 23 – 24, breast feeding, CLASS Act, black lung and provisions designed to provide under-served Native Americans better access to health care have little or nothing to do with the individual mandate and could probably function as Congress intended without it.  As observed by Mr. Clement, one of the counsel for the Petitioners, other principal parts of ObamaCare are so intimately related to and dependent upon the mandate — guaranteed issue and community rating, for example — that the Congress could not have intended them to stand without it. According to this article,

Mr. Kneedler, representing Mr. Obama’s position, argued that should the court overturn the mandate, two other provisions – one forbidding insurers from turning away applicants and the other barring them from taking account of pre-existing conditions – would also have to fall.

Without the mandate, administration officials say, it would be unreasonable to expect health insurers to cover the sickest Americans if the healthiest ones are not required to pay for coverage. If the pool of the insured was composed disproportionately of the sick, insurance costs could soar.

. . . .

One practical question is whether Congress, deeply divided along partisan lines, would be able to pass new health care laws anytime soon.

Justice Kennedy referred to this, asking if the job of reworking health care would fall to “the real Congress or a hypothetical Congress.”

If the individual mandate falls by majority vote, I doubt that there will be unity even on a five to four basis as to what to do with the rest of ObamaCare. Then, I would not be surprised to see even those justices who disagree with the majority as to the mandate nevertheless agree that the inextricably linked but otherwise constitutional provisions must fall while arguing that the peripheral provisions can stand.  Separate concurring and dissenting opinions on the severability question seem likely because, given a choice, some who agree that the mandate is unconstitutional will prefer total rejection of ObamaCare while others will prefer only selective rejection. Among the latter group, and within the group maintaining that the mandate is constitutional, there are also likely to be differences as to which provisions should be selected for rejection and which as keepers.

Although the Court should not consider political issues, and probably will not do so here,  removing the heart of Obama care and leaving only those parts that might or perhaps could but might not survive for a while without a functioning heart seems likely to favor conservatives in the coming elections. I so argued here last October. That would leave ObamaCare an even greater mess than it currently is, increasingly contentious and with even less popular support than now.

Following the rejection only of the insurance mandate, the administration would have to hustle during the heat of the election season to try to explain how ObamaCare can be made viable without the mandate. That would be very difficult if not impossible. Perhaps “free” government-provided health care or subsidized health care would be a way. For many reasons, however, including the costs of and general disenchantment with entitlement programs, that would be very difficult to sell to the voters.

That conservatives generally opposed ObamaCare and Democrats who controlled the Congress until after the 2010 elections supported it — generally without having bothered to read or to understand what it meant — should be an election issue.  Speaker Pelosi, in particular, commented quite memorably that the Congress had to pass it before we could know what’s in it. She responded to a question about constitutionality with the comment, “Are you serious?  Are you serious?”  That sort of nonsense can and will be emphasized during the election campaign this year.

According to Senate Majority Leader Reid,

There’s a significant school of thought that the administration is — puts them in a better position for the election if it’s turned down.

That strikes me as a strange school of thought, but many of those seem to inhibit inhabit Senator Reid’s mind.  Spin a holding that the individual mandate is unconstitutional, however they may try to spin it, I suspect that the dervishes will merely get dizzy and that most voters will feel relief that it is gone and reject many of those who sought to impose it.

I am not impartial concerning ObamaCare and think that at least the insurance mandate should be struck down as patently unconstitutional.  That should be kept in mind when reading my opinions on related matters.