On Monday the Supreme Court begins hearings on the healthcare reform bill passed in 2009, the Affordable Care Act. SCOTUSBlog has been previewing the arguments and I commend their coverage to your attention:
Argument preview: Health care, Part I — The power to decide?
In this post Lyle Denniston reviews the arguments and prospects for the Supreme Court effectively kicking the can down the road by finding that the Anti-Injunction Act prohibits cases being brought against the ACA until the provisions of the act actually come into force. To make this determination the Court would need to find, for example, that the individual mandate is, indeed, a tax.
Such a course of action might solve a political problem but it would be the Court’s political problem, not the president’s. After the uproar following its decision of Citizens United v. Federal Election Commission the Court might well feel like a bit of can-kicking. The ACA would remain a political football through the 2012 campaign season and beyond.
That course of action could also set the stage for maximizing the disruption caused by the ACA if it goes into force, is enjoined, then resumed (possibly through multiple iterations), and finally reversed after several years of wrangling. In many ways I think this would be the worst case outcome.
Argument preview: Health care, Part II — Fate of the mandate
The individual mandate, the requirement that individuals carry health insurance, has received much of the attention in the press and in this post Mr. Denniston explores the arguments and alternatives before the Court with respect to the mandate. If the Court finds that the Congress acted within its constitutional powers under the Commerce Clause in enacting the individual mandate, it’s very difficult for this layman to discern where the Congress’s powers end since nearly every action or inaction is arguably commerce.
Argument preview: Health care, Part III — Beyond the mandate
In this post Mr. Denniston mostly considers the arguments and alternatives on the severability of the individual mandate from the balance of the ACA. If the individual mandate is found to be unconstitutional is the ACA struck down in its entirety?
Argument preview: Health care, Part IV — The Medicaid expansion
In this post Mr. Denniston discusses the arguments, alternatives, and states rights issues raised by the expansion of Medicaid under the ACA. In some ways the states rights issues, pertaining both to the individual mandate and the expansion of Medicaid, are the most interesting aspects of the case and of any decision other than deciding to restart this process all over again in 2014.
Whatever you think of the ACA, it’s hard not to view the case before the Supreme Court as one of the most important in years, perhaps decades. I have no view on the legal issues. I think that in human terms it’s pretty likely the Court will be sorely tempted to kick the can down the road.
Over the years I’ve posted extensively about healthcare and healthcare reform. If you want to know my opinion of the ACA, I think it was politically imprudent, pragmatically inadequate, and its benefits are likely to prove wishful thinking. None of that makes this case any less important. It’s the law of the land and however the case is decided the decision will certainly reverberate for years to come.
A few last observations. If the Court decides the Anti-Injunction Act precludes the case from going forward, the Court may win (in a sort of judicial version of IBG YBG) but everybody else loses. If the Court upholds the ACA, the president has scored an enormous victory. If the Court strikes down the individual mandate but holds that it’s severable from act as a whole, everybody will claim to have won but the reality will be a pragmatic loss for everybody. If the Court strikes down the ACA, it will be severe blow to the president who willl, no doubt, turn it into a major plank of his campaign but it will provide only a temporary victory for Republicans. Healthcare reform will remain no less critical than it was in 2009 and there’s been a lot of well-poisoning by all and sundry along the way.
Does Denniston get paid by the word, or does he not get paid enough for his service to work on shortening his pieces?
I liked his previews but he is prolix, isn’t he? To be perfectly honest I think he could have said what he wanted to say in each piece in about 700 words, i.e. the length of a newspaper column, rather than the roughly 5,000 words each they are (about the length of a newspaper feature).
Maybe I should have synopsized his previews for people. What concerned me about that was the likelihood of going overlong myself. As it stands my post is already about 700 words long (my target length).
From skimming, Deniston’s take is fairly judicious and probably deserves to be broadly read. I tend to think the Administration has the better arguments about the mandate, but there are way too many people offering commentary (tv and radio) to the effect that there is no issue here, and nobody knows anybody who disagrees with that. Assuming that the Court reaches the mandate, I imagine the decision will be read and studied in Constitutional law classes for at least a generation. (And G*d help them, there will probably be nine opinions, each seventy-five pages long)
How do writers develop the audacity to write fiction when fact is so various and amusing?
I couldn’t come up with the name H. Bartow Farr III in a month of trying. If this synopsis is reflective of his demeanor, he sounds like a direct and capable attorney, too.