Is health reform on the constitutional ropes?
Contrary to what opponents of the law often claim, the individual mandate is not the core of health reform. The real question is whether the justices will throw out the rest of the law if the mandate goes.
Is health reform on the constitutional ropes?
Robert Field
After the arguments before the Supreme Court this week, is health reform on life support?
Unless the court issues a sweeping ruling that dramatically changes existing law, there is a good chance the answer is no.
The odds that the Supreme Court will leave health reform’s individual mandate unscathed seemed to sink after the oral arguments on Tuesday. The five conservative justices who represent a majority of the court were united in their skepticism of its constitutionality.
However, that is not where the story ends. It is where it begins.
Contrary to what opponents of the law often claim, the mandate is not the core of health reform. The core is the requirement that insurers issue policies to everyone regardless of how sick they are. The mandate is a way to let them do that without going broke by forcing healthy people into the risk pool. There are other ways of encouraging everyone to maintain health coverage, and the law could work almost as well with any of them.
The real question is whether the justices will throw out the rest of the law if the mandate goes. The court could strike down the mandate but leave everything else intact, even the parts that force insurers to cover everyone. That approach keeps virtually all of health reform in effect.
And half of health reform doesn’t even rely on reforming the insurance market as a means to extend coverage. It expands Medicaid to do that. If the court upholds the Medicaid expansion, health reform will have a huge impact regardless of what else is decided.
You wouldn’t realize that from some of the media reaction to the case. CNN legal analyst Jeffrey Toobin called Tuesday’s hearing a “trainwreck for the Obama administration” and predicted that the law is “going to be struck down.”
The Washington Post saw the mandate’s rough reception in court as “endangering the most ambitious domestic program to emerge from Congress in decades.”
And the Wall Street Journal conjectured that “the president’s signature domestic achievement could be struck down.”
The mandate may be the most contentious part of health reform, but virtually all of the rest of the law would do just fine without it.
A more important question from a legal perspective is whether, if the justices strike down the mandate, they will issue a broad ruling or a narrow one. Judging from their questioning on Tuesday, a narrow ruling seems more likely.
A narrow ruling would deny Congress the power to force people to buy a product such as health insurance but let Congress continue to regulate interstate commerce extensively in other regards. A broad ruling could go further and roll back powers that the court has already allowed Congress to use.
Most of the justices, including those in the conservative wing, seemed to indicate through their questioning that they were not looking to change the law one way or the other. Their major concern was that the powers of Congress remain as they are.
This means that even if, as is now widely anticipated, the court rejects the individual mandate, Obama’s signature legislative accomplishment could largely survive.
There’s a lot more to health reform than meets the eye.
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My. You are in denial.
Justices Kennedy and Scalia were debating judicial activism ... is it more activist to strike down the whole enchalada? Or is it activist to go through this monstrosity line by line and strike out sections. They seem to agree that it's Congress that should start over and (perhaps for the first time) actually read the bill and try to keep portions that are good (and Constitutional) and excise those portions that are unworkable now that the funding mechanism (individual mandate) is gone.
Mr. Obama, Mr. Reid and Ms. Pelosi had a bad day. Not to mention Mr. Ben Nelson of Nebraska who was ridiculed for the Cornhusker Kickback. Boy, that was fun, wasn't it Mr. Field?— yahzooman- Hope the Supremes don't throw out the baby with the bathwater. To send it back to Congress would mean DOA while we the taxpayers continue to fund the legislators Cadillac lifetime health plans.— gb
- I think we can stop calling what the Supreme Court does having anything to do with the constitution. The court merely reflects our political spoils system (and always has). The 5-4 votes along political lines (it is hard to call them ideological lines anymore) are symbolic of what the supreme court is, the third political agency in our government (and I don't think there is anything really wrong with that, except for those who ascribe some larger, abstract meaning to their work).— bobcitydoc
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