Sticky mandate
by David Atkins
The third day of oral arguments on the Affordable Care Act saw many justices seem to take a dim view of the severability of the mandate from the rest of the Affordable Care Act. That in turn creates a real pickle for Scalia and his friends. Their choices are essentially these:
1) Vote to uphold the ACA, and thus the notion that the Federal Government can place a mandate on individual citizens to purchase a product offered by private companies;
2) Vote to uphold the rest of the ACA, but not the individual mandate–despite the fact that the pre-existing condition provision doesn’t really work without the mandate; or
3) Strike down the law in its entirety.
Nothing new there. But as any analyst worth their salt will note, the oral arguments are essentially window dressing for journalists, even as the Court has become much, much more political of late in its decision-making. The justices are wholly unlikely to make their decisions about the law based on the last three days; these decisions, like Bush v Gore and Citizens United, are going to made based on political calculations.
That’s where it gets tricky, even for the conservative jurists.
Option #1 to uphold the ACA would seem to be unlikely at first glance. Conservatives hate the law, hate the President, and have an incentive to deliver what they might consider a humiliating blow to the Administration. The notion that the federal government can compel private purchases also grates against the modern conservative ethic.
On the other hand, repealing the Affordable Care Act has become a major rallying cry for the conservative establishment, and one of the key arguments Republicans use to mobilize their base to elect them in 2012. It’s entirely probable that if the Supreme Court strikes down the Affordable Care Act in its entirety, the mobilization effect will work in reverse. There will be a lot of angry people with pre-existing conditions, as well as a lot of angry youth under 26 and their parents. Progressives will work all the harder to pass single-payer healthcare in blue states, since it will have become clear that no federal solution to skyrocketing healthcare costs is in the offing. And it will mean that the only solution left on the table to resolve the issue would be some form of single-payer. Not that anything resembling single-payer would be passed now or anytime within the next 15 years–but eventually it would have to happen as the current Fox News audience dies away and Millennials become the adult voting majority. Politically, in both the short and long term, allowing the ACA to stand judicially is probably a conservative’s best bet.
Severing the mandate would appear to be the worst option of all. It would arguably create an even more progressive law unless the pre-existing condition section were stricken out. But to go down that path would require the Court to determine insofar as it can the workability of every single piece of the very lengthy bill–a prospect that Scalia compared to cruel and unusual punishment. It would also mean unprecedented activism on the part of the Court. It’s one thing to strike down the most contested and hard-fought legislative accomplishment perhaps in decades. That’s judicial activism enough. But it’s quite another for the Court to going through the law piece by piece to figure out what parts of it would work legislatively if the mandate were curtailed. It would put the Court in a fairly unprecedented position of actually and truly legislating from the bench, and we all know how conservatives supposedly feel about that.
At the end of the day, politics are going to be the deciding factor in what will likely be another 5-4 vote. The Court’s four staunch conservatives will need to vote against it to maintain credibility from their own base, even as unelected officials.
But I’m going to go out on a limb and suggest that the ACA will be upheld in the end, if for no other reason than that it doesn’t really serve the interests of anyone–from liberals to conservatives to the Justices themselves–to do otherwise.
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