ACA in the Supreme Court Catch-All

The rumor currently running around CMS is that the the individual mandate will be thrown out, but everything else will stand. I put that out there as a stake in the ground for when the decision rolls around. I suspect it's likely accurate; certainly IT spending is proceeding as if it is (which surprises me a bit, although that equipment can be put to other uses instantaneously, and meeting ACA implementation deadlines requires substantial lead time).

I don't know how the reforms can stand without the individual mandate. Surely that'll bankrupt all the insurance companies as everyone waits until they're sick to get insurance and then drops it again when they're healthy (well, the people who don't have insurance through their workplace anyway).

If the Republicans on the Supreme Court really wanted to f*ck over Obama, that would be the way to do it. Even the administration itself is arguing that striking only the mandate would fatally compromise the legislation.... that if it's removed, a number of other provisions need to go with it. (like the requirement that insurance companies take anyone.) So if the Supremes really, really wanted to give him the bird, they'd disable just the mandate, and leave everything else in place.

That would be just about the worst possible outcome. I don't think the mandate is Constitutional by any means, but striking ONLY that would probably do more damage than letting it stand, even unconstitutionally.

This came up before and I don't think the individual mandate is as necessary as it seems (between Medicare, Medicaid, the ACA's expansions to Medicaid, SCHIP, employer insurance, the ACA's employer mandate that goes along with the individual mandate, the ACA's government subsidies for purchase of health care insurance, the fact that a lot of people are technically 'sick' in that they make regular purchases of medical care like say, a prescription drug, etc.), but I also looked into the topic a bit more and found this:

The administration also argues that implementing these reforms without the mandate would generate an insurance “death spiral” by enabling people to wait until they become ill before purchasing insurance. Healthy people consequently would decline coverage, which would raise average premiums for those remaining in the insurance pool. That would induce yet more people to self-insure in a cycle leading to ever higher premiums and shrinking coverage.

This argument, however, overstates both the need for and the effectiveness of the mandate. The guaranteed-issue provision does not, in fact, enable individuals simply to buy insurance when illness arises. It allows insurers to restrict enrollment to specific “open periods” and impose waiting periods of up to 90 days, exposing uninsured persons to considerable financial risk.5

http://www.nejm.org/doi/full/10.1056...

I'm seeing a bunch of references to allowing a 90-day waiting period, but I mostly see them in sources targeted at employers. That's the best I can find so far about the 90 day waiting period applying to people purchasing health insurance on their own

edit: just found this

The Department of Health and Human Services released proposed regulations this week (fyi: article is from July 15th, 2011) on the new health insurance exchanges that the Affordable Care Act will set up. While they don’t address all of the important policy issues related to how these new entities will work, they do lay out when people can sign up for exchange plans and switch plans each year and when their life circumstances change. Overall, the proposals strike a good balance between providing stability for the exchanges and allowing consumers to change or begin coverage outside of the regular enrollment period.

The Affordable Care Act appropriately establishes an initial open enrollment period (before exchanges first make coverage available, starting in January 2014), as well as annual open enrollment periods in subsequent years. In an open enrollment period, people would be free to sign up for a plan or switch plans. Only in limited circumstances would people be able to enroll in or switch plans outside of an open enrollment period.

This restriction is a critical feature: it ensures that individuals and families don’t wait until they get sick to enroll in coverage, or switch to more comprehensive coverage when they are about to have an expensive medical procedure. That is a problem Massachusetts initially faced under its health reform initiative, but the state recently tightened its exchange enrollment rules in response to reports that people were enrolling in coverage for short periods and then dropping coverage after receiving medical services. At the same time, however, it is essential to ensure that people have the freedom to move into coverage or into different coverage when they experience certain changes in their lives in the course of the year.

http://healthaffairs.org/blog/2011/0...

I also went back and checked the NPR Q&A in the thread's original post:

Q: In some cases, (especially for young, healthy people) might it make more sense to pay the tax penalty instead of paying insurance premiums every year?

A: The fact that the penalty is so small has the insurance industry very worried that young healthy people will and pay the fine until they find they need insurance. For most people it will be about $700 a year — a lot less than buying insurance, actually.

Now that's a dangerous thing, of course. If you develop a major disease like cancer, and you don't have insurance, you're in big trouble. And in most cases even though you can still get insurance with a pre-existing condition, you'll only be able to sign up during specific "open enrollment" times of the year, so if you get sick at the wrong time you could be responsible for a lot of medical bills before you get another chance to enroll.

That may help explain why in Massachusetts, where they already have an individual mandate with a penalty that's also smaller than the cost of buying insurance, it's actually pegged at half the lowest priced plan for most people. It varies by age and income level. But still most people still buy insurance. About 1 percent of taxpayers pay any penalty.

Something I found along the way of looking that stuff up that goes back to an earlier question about who will write the opinion:

If Roberts can assemble a majority to overturn the law, Eskridge says, protocol dictates he gets to assign the opinion. Much as he’d like to assign it to himself, however, he’ll have to assign it to Kennedy to get his vote, Eskridge said. He learned that lesson in Parents Involved in Community Schools vs. Seattle, a 2007 affirmative-action case where Roberts assigned the opinion to himself and was left with a muddle when Kennedy wrote a concurrence that kept it from being a completely clean 5:4 victory.

If Kennedy leads a 5:4 majority to uphold the law, as senior justice after Roberts, he gets to assign the opinion and Eskridge has no doubt he’d assign it to himself. If Roberts joins him in a majority to uphold, the chief is stuck in the same position as above.

http://www.forbes.com/sites/danielfi...

I think this article nails it. Kennedy has tended to be the swing vote in split decisions. I would bet interested to see his opinion, should he write it. He has drawn much criticism for breaking conservative lines on abortion issues, in particular. Scalia, Alito, and Thomas are all about narrowing the commerce clause interpretations, so I have no doubt how those 3 will vote.

Roberts seems to have been keen to keep a status quo regarding the commerce clause. At least in his confirmation, he seems to agree that it should be kept a broad power allowing congress to intervene.

As far as striking down the individual mandate. I say let them, and keep the rest of the law intact. Every hospital and urgent care center will need to staff insurance agents. Let them clamber for single payer when that sh*t storm starts.

As for strategy. If the Obama Administration relies on the commerce cases surrounding guns and agriculture, they have the best chance. The agriculture ones are the biggest, in my opinion. To exert federal control over something literally rooted into the ground and perishable was new ground. If the administration can keep the focus on the national health market, the national crisis, that is the best chance.

Robear wrote:

The individual mandate has survived as a tax, according to SCOTUSblog. More to come as they finish reading.

Edit - Roberts joined the liberal wing of the court for this decision. Medicaid provisions limited but intact.

It looks like Roberts didn't want to see the court thrown into mud via the partisan bickering over the issue so he took the pragmatic way out (although have yet to read the opinion).

The individual mandate has survived as a tax, according to SCOTUSblog. More to come as they finish reading.

Edit - Roberts joined the liberal wing of the court for this decision. Medicaid provisions limited but intact.

Edit2 - Entire ACA upheld, apparently.

The severability issues were not considered (breaking out parts of the Act) because the Individual Mandate was upheld. Basically, the big change is that the Feds can't pull Medicaid funds from states that don't implement the Medicaid expansions.

Wow. This is SCOTUS saying to Congress "if you want this changed, do it your own damn self".

CNN embarrassingly reported that the mandate had been struck down, then several minutes later proceeded to slowly and clumsily edit various pieces of their site to fix it. In some places, they've only half-fixed the text.

What's interesting is that they didn't get 5 votes on constitutionality for the same reasons, they just got five votes that it was constitutional. However, it hinged on the individual mandate penalty being interpreted as a tax, rather than worries about whether the government could force people to buy insurance.

Edit - Looks like the court split several ways - three? - and two sets of reasoning indicated the individual mandate was constitutional.

Quintin_Stone wrote:

CNN embarrassingly reported that the mandate had been struck down, then several minutes later proceeded to slowly and clumsily edit various pieces of their site to fix it. In some places, they've only half-fixed the text.

Hopefully someone managed to grab some screen shots.

Now that the Supreme Court has spoken, is it a settled issue with the GOP now, or we are going to start hearing that "liberal activist judges" song again?

Gorilla.800.lbs wrote:

Now that the Supreme Court has spoken, is it a settled issue with the GOP now, or we are going to start hearing that "liberal activist judges" song again?

I suspect that you'll start seeing some crazed crap from armed teabaggers concerning the "Roberts stabbed us in the back" phenom.

Gorilla.800.lbs wrote:

Now that the Supreme Court has spoken, is it a settled issue with the GOP now, or we are going to start hearing that "liberal activist judges" song again?

Almost certainly it'll be "now we need to elect Romney, as the last great white hope for getting rid of EEEEEBIL Obamacare"

Well that's boring. Don't they know the internet needed something to argue about? A majority of the justices deciding not to play "GOTCHA!" with a weird wording designed to avoid breaking a campaign promise and just saying "yeah yeah--we know what you meant" is no fun!

Spoiler:

except for the whole 'Roberts just created his legacy' thing

Maybe this is the consolation prize:

A negative ruling on the Medicaid expansion could be even more consequential. This provision of the Affordable Care Act increases the number of people who are eligible for the federal low-income healthcare program, and is the means by which the law covers the bulk of today’s uninsured population. Under the new law, the federal government provides some of the funds for the expansion, and makes states pony up the rest by threatening to rescind all federal Medicaid funds if they don’t comply. Congress has used this same basic principle to do everything from increasing the drinking age to 21 to implementing Title IX, the gender equity in education law.
http://www.salon.com/2012/06/27/the_...

Guess we'll have to see how that goes based on the opinions when they come out.

Roberts is a liberal? That's a mind-bender. I'd say this is more of a failure of the libertarians like Kennedy to convince Roberts that the government over-reach was the main issue. (And that's not a dig at anyone here, or libertarians in general.)

Edit - Note however that the rejection of the Necessary and Proper clause argument, and the Commerce Clause argument, does not bode well for sweeping social legislation in the future. That's an important outcome of this, as it tells us that the Court is still ready to pounce on increasing government power in various ways.

Robear wrote:

Roberts is a liberal? That's a mind-bender. I'd say this is more of a failure of the libertarians like Kennedy to convince Roberts that the government over-reach was the main issue. (And that's not a dig at anyone here, or libertarians in general.)

Well, he is officially librul now. Solidly to the left of Kennedy, as of this ruling.

Talliarthe wrote:
Quintin_Stone wrote:

CNN embarrassingly reported that the mandate had been struck down, then several minutes later proceeded to slowly and clumsily edit various pieces of their site to fix it. In some places, they've only half-fixed the text.

Hopefully someone managed to grab some screen shots.

http://core.talkingpointsmemo.com/tv...

My facebook status update:

In a decision that somehow managed to surprise everyone, Chief Justice Roberts rules in favor of a health care policy cooked up by the Heritage Foundation.

Robear wrote:

Roberts is a liberal? That's a mind-bender. I'd say this is more of a failure of the libertarians like Kennedy to convince Roberts that the government over-reach was the main issue. (And that's not a dig at anyone here, or libertarians in general.)

You don't have to be a libertarian to have a problem with the individual mandate or government over-reach, though. I'd say this is just Roberts being a conservative, but not an ideological zealot, who had available to him a really easy, constitutionally solid way to uphold a law passed by Congress and signed by the President.

Somebody combine these threads....

Tanglebones wrote:
Talliarthe wrote:
Quintin_Stone wrote:

CNN embarrassingly reported that the mandate had been struck down, then several minutes later proceeded to slowly and clumsily edit various pieces of their site to fix it. In some places, they've only half-fixed the text.

Hopefully someone managed to grab some screen shots.

http://core.talkingpointsmemo.com/tv...

Thank you, that is great.

Paleocon wrote:

My facebook status update:

In a decision that somehow managed to surprise everyone, Chief Justice Roberts rules in favor of a health care policy cooked up by the Heritage Foundation.

Bravo, sir. Bravo.