In June, the Supreme Court will announce what it decided on Friday about Obamacare. I’ve read through some of the oral argument transcripts and the theme is pretty clear.
First the issues:
The core concept of Obamacare is that you can’t demand that an insurance company issue a policy at a standard price to a person who walks in the door after they are already sick. The only way insurance works is if EVERYONE is part of the insurance pool and the costs of treating everyone are born by everyone in the communisty. That is the law that Congress passed and the President signed. It is the law.
So the sequence of decisions are:
1) Is the mandate to buy insurance (or pay a penalty/tax) a violation of the US Constitution?
2) Without the mandate, does it make community rating and “must issue” health insurance that covers preexisting conditions unworkable?
3) If you believe the “must issue” requirement is so key to the operation of the new health insurance system (with state run insurance exchanges) that you have to invalidate the entire law.
4) If you decide that the mandate has to go, and the things tightly dependent on it have to go but the rest should stay, who decides what to chop out of the 2700 page bill?
The women of the court – Ginsburg, Sotomayor and Kagan are not discussing the Constitution. They are liberal activists whose only frame of reference is “What do I want the outcome to be?”. They clearly want the law to stand as written because they want the law to go into effect as written – the ends justify the means.
Clarence Thomas did not participate. He is considered a reliable Conservative vote, but it isn’t likely his opinion will add much to the private discussion (“So why didn’t you ask that during the arguments?”)
The Conservatives who did participate are troubled by the law, but also realize it isn’t their job to make the law or take the law passed by Congress and carve it up based on the whims of who thinks what part is dependent on the mandate.
My prediction is that they will declare the mandate to be beyond the scope of what Congress is allowed to do under its Interstate Commerce powers. They will let the rest of the act stand as written, knowing that it creates an unworkable framework for health insurance that will probably fail. They’ll say something along the lines of “We are not experts in insurance. We don’t know if this will work without the mandate. Congress has the responsibility to fix or repeal the law if the lack of the mandate makes it unworkable”.
Allowing only sick people to join in state run pools and the other provisions will cause the community rated premiums to zoom upward, making it not affordable to employers to cover their employees and they will dump their employees into the state pools or they’ll go uninsured or the companies will go out of business – further turning the pools into nothing but sick people, and dumping large numbers of people onto state Medicaid (which will be forced by the law to only look at income, not assets).
The message will be to Congress – no mandate. We know it creates a mess. You have a year to fix it. Get working.
The “simple” solution is to just rewrite the mandate. Insurance companies love to contribute to politicians. They don’t want something that destroys their industry. Instead of making it a “penalty”, make it a “tax”. The only reason for the semantic games had to do with the mechanism of cramming the bill through the Senate without 60 votes by passing it as a reconciliation bill that is not allowed to change taxes.
John Boehner loves to “Fix” things. Failing to put the mandate back in won’t stop 95% of what Obamacare does.
Another possibility – more likely if Obama is reelected and the Republicans don’t get the mandate they expect would to be just Federalize the entire health insurance system and take it out of the hands of the states. If Medicaid was run by HHS (like Medicare) instead of 50 states, the entire situation changes. Insurance has always been something regulated by the states, not by the Federal Government. There are many people in many places who derive their income and power from 50 separate insurance systems. Maybe their time is up, just as banking used to be a “State” power, but now has essentially been Federalized.