The Supreme Court will hand down its long-awaited ruling on the constitutionality of the Affordable Care Act, aka ObamaCare, this Thursday.
The most likely piece of the legislation to be struck down, if any, according to the pundits, is the individual mandate requiring individuals to purchase insurance. That said, nobody knows what the Court will rule.
Four Scenarios for Thursday's Ruling on Health Care offers a good summary of the various possibilities and what they would mean:
"The Supreme Court’s eagerly awaited ruling on the 2010 federal
health-care law is expected on Thursday, when the court will announce
its final opinions of the term.
The high court announced two decisions on Monday. Three more, including the health-care case, remain pending.
Chief Justice John Roberts announced from the bench
that Thursday will be the court’s final session before it takes a summer
break. The chief justice said all remaining opinions will be announced
On the health care law, here are the most likely four scenarios on
how the court could rule, shown in order of how much of the law would be
Scenario #1: The entire law is upheld.
The high court may conclude—as the majority of lower courts did—that
Congress was acting within its powers under the Constitution when it
required most Americans to carry health insurance or pay a penalty. That
provision was at the center of the two-year legal battle, and if it
survives, the rest of the law is likely to stay as well.
Such a ruling would be a victory for Democrats and President Barack
Obama, who had passed the biggest reworking to the health system since
the creation of Medicare in the 1960s and faced the prospect of the
court nullifying their effort. It would also avert disruption for
hospitals, doctors and employers who have spent more than two years
preparing for changes in the law.
Even in this case, however, the law would face an uncertain future.
Republican presidential candidate Mitt Romney and GOP congressional
leaders have pledged to repeal the law if they take control of Congress
and the White House in November elections.
Scenario #2: The insurance mandate is struck down, but the entire rest of law stays.
This was the ruling of a federal appeals court in Atlanta last year,
and the Supreme Court may choose to uphold it. In this scenario, the
high court would conclude that Congress exceeded its powers with the
requirement to carry insurance or pay a penalty. But it would judge that
provision separable from the rest of the law.
This would be the worst-case scenario for insurance companies and set
off a scramble for the Obama administration and supporters of the law
to prove that it could still work. Unless Congress took further action,
insurers would be required to accept all customers starting in 2014–even
those who are already sick–without imposing surcharges for pre-existing
medical conditions. At the same time, the court’s ruling would mean
people wouldn’t be required to carry health coverage. Insurers say that
would lead to chaos in the market as people waited until they were sick
to sign up for policies.
Scenario #3: The mandate and two related provisions are struck down but the rest of the law stays.
At Supreme Court arguments in March, the Obama administration,
fearing the market chaos in scenario #2, argued that the insurance
mandate was inextricably linked to two other provisions. Those
provisions require insurers to accept all customers and restrict the
insurers from charging more based on a person’s medical history. The
administration said if the mandate were struck down, the other two
provisions should go too.
If the court adopts that position, it would mean that the principal
aim of the law—expanding coverage to tens of millions of Americans—would
be unlikely to be achieved. Republicans would feel vindicated and push
to repeal the rest of the law.
While not as disruptive as scenario #2 for health insurers, this
scenario would still create broad uncertainty in the health business.
Many parts of the law would remain, including those setting up new
marketplaces in 2014 where consumers can shop for policies and get
subsidies for coverage. Companies with 50 or more workers would have to
start offering a set level of health benefits in 2014 or pay a fine.
Supporters of the law have said those provisions could still
function, but questions would be sure to arise whether the marketplaces
were workable without the core of the law.
Scenario #4: The entire law is struck down.
If the high court concludes that the insurance mandate is
unconstitutional, it may agree with challengers that the only path is to
invalidate the entire law.
Such a ruling would unravel all the work by the health industry and
local governments preparing for the law. It would be a painful blow to
Mr. Obama and Democrats who spent so much time and political capital on
their health-care overhaul. Yet it would also put pressure on
Republicans. They could no longer talk about repealing what they term
ObamaCare but would have to figure out what, if anything, to bring
before Congress to replace it. Gerald F. Seib discussed Republican challenges in the event of a negative ruling here.
Whatever the Supreme Court decides, the issue of American health care access and affordability will be with us for a long time to come.
The biggest "unaffordable" entitlement we have today is Medicare, and Medicare won't be the subject of Thursday's ruling.
And whether the Affordable Care Act is upheld in total, struck down in total, or something in between, as a society we still have to come to grips with how much government we want and how we're going to pay for that government.
Thursday's ruling will be welcome if only because it will force us to deal with the long term issues concerning health care and how big of a role government will play in its delivery and structure.