Health care reform & the Supreme Court: day three

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The third day of oral arguments at the Supreme Court focused on what happens if part of the Affordable Care Act (ACA) is declared unconstitutional. Unlike most complex bills enacted by Congress, the ACA lacks a specific “severability clause” or statement that the rest of the law survives if part of it doesn’t.

Today the Administration argued that if the individual mandate falls, then only the “guaranteed issue” (coverage available on demand at any time) provision falls.

Several Justices argued that it would be impossible for the Court to rummage through the law to decide what stays and what goes, therefore it all should fall. Other Justices argued that the choice should be left to Congress.

But, how exactly does the Court “remand” the case to Congress?  Wouldn’t the better choice be to invalidate the whole law (honoring the lack of a severability clause) and leave it to this or a future Congress?  NRF and other business allies have long argued that Congress should, indeed, Start Over!

The second debate concerned whether Congress exceeded its spending power by coercing state participation in vastly expanding eligibility for Medicaid to childless adults. The divide on the Court ran from the Chief Justice and his more conservative allies who find the ACA’s Medicaid expansion highly coercive to the more liberal wing of the Court who find the conditions on federal funds typical of Congress.

The nine Justices will now retreat to Chambers, cogitate with their respective collections of law clerks and then conference to determine where the majority of the Court is on particular questions. Through that process, the majority opinion will be assigned and additional opinions (concurring, dissenting, etc.) will be toted up. Chances are very good that the Justices will have a lot to say.

When they will make their decision is still highly uncertain. Traditionally cases heard in the spring often emerge in the summer, but not always. While the Court (at least in theory) is apolitical, even they are likely aware that a big election looms in the fall. The Court is not likely to delay their opinion to October, the start of their fall term.

It looks like a long, hot summer (with frequent tea-leaf reading and heedless prognostication) for health care ahead!

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