Saturday, March 31, 2012

The upside of SCOTUS striking down Obamacare

On All Things Considered, Robert Siegel aptly considers what might happen if the Supreme Court strikes down the part of the Patient Protection and Affordable Care Act (PPACA) which requires individuals to become insured or pay a penalty when it rules in June. Common consensus has it that the entire act stands or falls with this piece of legislation, because the act won't work if Congress can't compel pretty much everyone to get on-board. The relevant legal question boils down to whether it's appropriate for Congress to mandate individual health insurance. Opponents of the act say that it compels Americans to enter a market they might not otherwise participate in; supporters say that virtually everyone is already participating in the healthcare market (given that it's already law that ERs cannot turn away patients who lack insurance), so PPACA amounts to a regulation of already-existing economic activity, not a mandate unto participation.

Some speculations I've heard:

1. Hell Hath No Fury
Whichever way the court rules, the losers are going to rally. If the court upholds the act, then Republicans will make the case that beating Obama is the only way to rid the nation of the blight of socialistic Obamacare. If the court declares it unconstitutional, then Obama and the Dems can appeal to a popular uprising against judicial overreach by ideological justices, pointing to Bush vs. Gore, Citizen's United, and now PPAHA. In either case, one party is going to have a healthcare rallying-cry for the fall election.

2. The Empire Strikes Back
Striking down this market-based version of Obamacare could set the stage for the Dems to come back with real universal healthcare, where the federal government uses direct taxes to pay for direct services without any private-sector middleman. If exploitation by insurance companies is the engine for our country's bad, expensive healthcare, then replacing the market-model with a this could be a really, really good thing.

Two points made by justices during hearings this past week: First, Chief Justice Roberts questioned whether the penalty for not getting insurance (i.e. forfeiting your tax return) are strong enough to count as a mandate rather than a mere incentive. Punditocracy covers that here. Second, Justice Kagan points out the weirdness of the argument that States' treasuries will be depleted by delivering Medicaid to all the people who already qualify for it but don't take advantage of it:

…that does seem odd, to suggest that the State is being injured because people who could show up tomorrow with or without this law will -- will show up in greater numbers. I mean, presumably the State wants to cover people whom it has declared eligible for this benefit.

Odd is one word for it. Jonathan Cohn covers it here in the New Republic.

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