The Supreme Court Remains Split Over ACA

Now that the Supreme Court has taken its deliberations on the fate of President Barack Obama’s Affordable Care Act behind closed doors, people are taking a look at how the arguments went.

Kaiser Health Network

NPR

On Thursday, held a discussion panel with Stuart Taylor, attorney, author and legal analyst for the publication; Tom Goldstein, partner of Goldstein & Russell, P.C., and publisher of SCOTUSblog; and Julie Rovner, health policy correspondent for .

The three concluded that there was an increased chance the Court could decide the individual mandate was unconstitutional. However, Taylor said he was “not betting that they’ll strike anything down,” and Goldstein guessed that the government still had a 60% chance it would win.

“But, I do think that there had better be a plan B and there had better be a plan C, and people had better be serious about doing something,” Goldstein said.

According to Rovner, the White House is insisting that there is no plan B in place because it is still confident that the mandate and the law are not unconstitutional. She pointed out that when Obama was running for president in 2008, he didn’t support the individual mandate, so there must be other options out there.

“They’re not as efficient, they wouldn’t work as well, but they would indeed work plausibly,” she said.

The three addressed what would happen if the individual mandate was struck down and just how much of the rest of the health care law would have to fall.

“If you were to ask me, I think the most likely outcome is that community rating and guaranteed issue are for sure — and then probably the exchanges and one or two other things – if the individual mandate is struck down,” Goldstein said.

Of course, no one can know for sure just which way the Court will go. While the four liberal justices — Ruth Bader-Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — seemed to be in favor of letting the individual mandate stand, the conservative justices were more split and have the majority. While Justices Clarence Thomas, Samuel Alito and Antonin Scalia seem sure to vote the individual mandate down, Chief Justice John Roberts and Justice Anthony Kennedy could go either way.

“And so I do think they are going to do something in the end relatively simple — that they are going to go in one direction or another,” Goldstein said, referring to the fact that if the individual mandate falls, the justices might find it easier to strike down the whole law or the justices might let the individual mandate stand to leave the whole thing intact. “They just don’t have the time and the resources to break this down, kind of subtitle by subtitle. It just would be impracticable.”

Yesterday, Scalia had said as much, garnering laughter from the entire courtroom with the suggestion that the justices go through all 2,700 pages to decide how constitutional the entire law, which includes provisions on black lung disease and Indian health care, is.

If the entire law falls, Rovner doesn’t have high hopes for Congress passing another health care reform bill. She pointed to President Bill Clinton’s bill went down in 1993, so 15 years went by before Obama’s bill passed.

“The other thing that you need to keep in mind is that we are looking at a legislative train wreck at the end of this year,” Rovner said. “We are looking at the expiration of the Bush tax cuts, we’re looking at a Medicare doctor fee problem, we’re looking at the debt ceiling again. We’re just going to have this enormous pulling together of all of these things at once that Congress is going to have to deal with, aside from anything it might have to deal with on a health care law.”

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Health Law Faces Heavy Scrutiny from Supreme Court

Supreme Court Conflicted Over Severability of Individual Mandate