This morning or, possibly, Thursday the Supreme Court is expected to render its decision in the cases against the Patient Protection and Affordable Care Act AKA “Obamacare”. The decision is likely to be long and convoluted, possibly with complete concurrence on some aspects of the case and narrow majorities on others. The most likely possibilities for the final decision would appear to be:
- The Court upholds the PPACA in its entirety.
- The Court strikes down the “individual mandate” but holds that severable from the remainder of the law.
- The Court strikes down Title 1 of the act, the portion dealing with private insurance, but upholds the balance of the law.
- The Court strikes down the PPACA in its entirety.
The question is not whether a hypothetical Court could uphold the PPACA but whether this Court is likely to support the expansion of Congress’s powers under the Commerce Clause that the PPACA represents. I suspect that the answer to that question is “No” but I honestly have no idea on how the Court will rule. If I had to make a WAG, I would predict alternatives 2, 3, 4, or 1, in that order.
When Congress initially enacted the PPACA I was as mad as a wet hen. I thought that it was a byzantine, tortured half measure. It arranged to cover a few more people who presently don’t have insurance without covering everybody and do so in a way that was vague, maximized uncertainty, and maximized the bureaucracy that would be required to administer it. It only pretended to address the most pressing problem of our healthcare system (increasing costs) in order to grant insurance coverage to a relatively small additional number of people. Additionally, it assumed that Congress would tinker with the law in continuing approximation, fixing the unworkable or contradictory parts of the law, repeatedly, an assumption that flies in the face of the history of healthcare reform in the United States.
One aspect of this whole sorry mess that I do not believe has been adequately discussed: it highlights the problems inherent in prolonged incumbency. The members of the Congress have had the same arguments with the same people over such a long period of time that the discussion has solidified behind slogans. For the progressive caucus that comprised the Congressional leadership at the time the PPACA was passed the slogans were “guaranteed issue” and “community rating”. They had persuaded themselves that those two things would solve the problems with our healthcare system. Ironically, their implementation surrenders the fiction that healthcare insurance is insurance at all.
To satisfy that Congressional leadership guaranteed issue and community rating were the sine quae non. Everything else was persiflage.
The present Republican Congressional leadership has its own slogans: “market-based” and “health savings accounts” chief among them. The notion that those things can be implemented in such a way as to solve the problems we actually have is just as fictional as the progressives’ solution.