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June 20, 2012 4:13 PM Consequences of a Split Decision on ObamaCare

By Ed Kilgore

The entirely plausible outcome of the Supreme Court’s decision on the Affordable Care Act that has received the least attention is what might be called a “split decision:” an invalidation of the individual mandate alone, with the rest of the law left to stand. This possibility has been shirked in part because it’s easier to do so, and in part because the Obama administration did not defend “severability” in the famous oral arguments before the Court in March (though an “independent” attorney did). But as TNR’s Jonathan Cohn notes today, the latest hot rumor is that this is in fact the issue the Court is still agonizing over (there’s also been a rumor, he says, that one Justice became so wrought up over the deliberations that he or she took his or her clerks out for a drinking binge).

Cohn goes on to argue passionately that ACA would still do an enormous amount of good even without the mandate, which is usually considered essential to the task of building a broad enough risk pool to make the expansion of coverage feasible (i.e., to avoid big and politically disastrous jumps in premiums). But he admits no one really knows exactly how it would all play out.

But regardless of the long-term effects, a split decision would create some really interesting political challenges to Republicans. Without the mandate as a straw man, GOP demands to repeal the entire law would have to focus more squarely on the more popular aspects of ObamaCare, most notably the guaranteed-issue and community-rating provisions. Republicans have campaigned avidly on the “Medicare cuts” in the law, but without the complex dynamics introduced by the mandate, continuing that talking point would more obviously align them with a budget-busting demand to restore a Medicare Advantage program whose main fans are insurance companies. And while they might go after the subsidies designed to make the new, expanded coverage affordable—which would be even more important to the law’s design if the mandate is gone—as “welfare,” an awful lot of middle-class folk would be eligible for the subsidies. More subtly, the complexity of ACA, which has worked to the political advantage of its critics, might begin to work against them if they are forced to justify more specific objections.

Above all, for all the talk on Capitol Hill of Republicans getting themselves prepared for the questions they will face if ObamaCare is overturned, I doubt they’ve been successful in game-planning a split decision. Without the unifying emotionalism associated with the mandate, maintaining unity between pols-reading-polls and conservative activists who think any kind of action to deal with the uninsured is socialistic won’t be easy.

In any event, it shouldn’t just be Democrats who are nervous about the possibility of a 5-4 decision that strikes down the mandate but leaves the rest of the law intact. Things will get crazy very fast.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • cmdicely on June 20, 2012 4:48 PM:

    But regardless of the long-term effects, a split decision would create some really interesting political challenges to Republicans. Without the mandate as a straw man, GOP demands to repeal the entire law would have to focus more squarely on the more popular aspects of ObamaCare, most notably the guaranteed-issue and community-rating provisions.

    Without the mandate, they'll just focus on the cost impacts of those provisions. The whole reason for the mandate is that its the only thing that prevents adverse selection and, thereby, controls costs. Whether or not the mandate is constitutional, its a fairly easy argument to make that -- attractive or not on their own -- the other provisions are impractical.

    Of course, the reason the Administration didn't defend severability is that Congress and the President would not have approved the popular provisions without the mandate, and there are plenty of statements from the President and legislative history in Congress demonstrating that, and that is exactly the question that is at issue in severability.

    Finding the mandate severable (at least, from most of the popular provisions -- things like Medicaid expansion and some of the HIPAA-related tweaks in the bill could conceivably survive, although its hard to imagine the Court getting that far down into the weeds of cherry-picking individual provisions) would arguably be more outlandish than rewriting or ignoring Commerce Clause precedent to strike down the mandate, and -- unlike striking down the mandate -- doesn't seem to have any obvious connection to the public ideological preferences of any of the Justices that might explain why they would take such an outlandish view.

    OTOH, I could see a 4-member bloc that ideologically wants to strike down the whole bill trying to push a "severability compromise" to get an unconvinced 5th Justice on board with a decision striking the mandate as unconstitutional, and I could maybe see a 4-member bloc that ideologically wants to preserve the bill doing the same to try to peel a Justice off of an apparent 5-member majority for striking down the bill to preserve something. So, if I was granting credence to rumors in the first place, I'd see the reports that severability is actively being considered as reinforcing the idea that its a closely divided court.

    But, really, Ruth Bader Ginsberg's comment on the rumor mill around the deliberations is something people should keep in mind: "Those who know don't talk. And those who talk don't know". The rumor mill is the product of professional talking heads with no news to report grabbing at straws provided by people who want to seem connected.

  • DRF on June 20, 2012 4:55 PM:

    Of course, the more popular portions of the Act, such as the provisions regarding pre-existing conditions, certainly could exist without the mandate; it's only that it would be economically undesirable to separate these provisions. It's not necessarily the Court's job to rule based on whether non-suspect portions of the law would have been enacted without the suspect portions.

    In any event, a rejection only of the mandate will create a bigger problem for Republicans than for Democracts, I suspect. We'll have all of the insurance companies screaming for some kind of fix. At that point, I would love to see Obama say to the insurance companies--don't come complaining to me, speak to Boehner and the rest, since they are the ones who created the problem. Let the Republicans have to deal with the insurance companies and with the public which wants to more popular provisions of the law.

  • T2 on June 20, 2012 5:03 PM:

    IF any portion of ACA is declared UnConstitutional, the Conservatives will stand united on the highest mountains and yell "Obama vilolated the Constitution" and yell it, and yell it, and yell it. All the way to Nov. 5. They will be besides themselves with glee.

  • Josef K on June 20, 2012 5:06 PM:

    Ed, things are already "crazy". The GOP is barking mad, along with a very vocal slice of the electorate. The GOP's leadership is not a little on the irresponsible side, and has shown themselves willing to abdicate all responsibility for their jobs.

    Whatever the ultimate decision, these dynamics are unlikely to change. I won't be surprised if a few Congressional home offices are vandalized in the near future.

  • Snarki, child of Loki on June 20, 2012 5:17 PM:

    With any luck, repeal of the mandate alone will drive health insurance companies out of business.

    Which is entirely constitutional, so suck on it, GOP.

    After that, pick up the pieces by passing "Medicare for all".

  • Robert Waldmann on June 20, 2012 9:17 PM:

    There is also a theoretical possibility of a declaration of unconstitutionality which does even less -- the hair splitting decision. The Supreme Court could declare the mandate unconstitutional and also declare the penalties for not getting health insurance to be constitutional (saying they are taxes).

    It is generally agreed that an incentive to buy health insurance in the form of a tax of 2% of payroll income ir x dollars whichever is larger which is used to subsidize the purchase (refunded if one gets health insurance) is constitutional. This is also identical to the mandate except for the word "mandate."

    Changing the word but not the substance is a compromiser's compromise.

  • edwin wood on June 20, 2012 10:22 PM:

    If a such a decision will cause the Republicans problems then the Supremes will not rule that way. I do believe the conservatives will try to undermine the use of the Commerce clause. Setting a precedent that will allow them to roll back other programs justified by the Commerce clause. But then again, I have become very cynical about the Supreme Court

  • bob h on June 21, 2012 6:02 AM:

    I don't understand the distinction between mandate and penalty. There is no hard and fast mandate, only a penalty that the government can only collect by witholding tax refunds.

  • Luke Kay on June 21, 2012 3:16 PM:

    The usual GOP talking points fit a response to a split-decision quite well:

    The SCOTUS has recognized the continuing attempts by Barack Obama to undermine the Constitution and extend the sphere of his activist government.

    Simply, it allows them to appeal to their Tea Party constitutionally-driven base. What makes you think as though they will suddenly start discussing policy in substantive terms, or that the MSM will press them to do so?

    http://www.younggreenandblue.blogspot.com