→ Listen to the show, comment on the ruling, here
At the Brian Lehrer Show, we are bracing for various scenarios in Thursday’s health care ruling. Here’s what’s in the works, what you need to know, and one weird scenario to keep in mind...
+ Our Coverage Plan
As you no doubt know, the Supreme Court has been somewhat cagey about their schedule. We know that opinions are released on Monday and Thursday mornings, but beyond that it’s a guessing game. Hence the many anxious mornings in June. But now that we’re at the end of the month, it’s a virtual certainty that we’ll get a decision on health reform around 10 a.m. Thursday. 10 a.m. is when the judges, after they get dressed in the “robing room”, begin to release information – but they first announce “orders” (what cases they will hear in the future) and then “opinions” (their judgments, read from the bench). Health care is one of three opinions on tap for Thursday, and expected to be announced third, so it may be closer to 10:20 before we have final word.
The Brian Lehrer Show begins at 10:06, so we’ll be recapping the basic arguments and the possible scenarios with health policy expert Michael Sparer of Columbia as we wait for information to trickle in. We’ll also have The Takeaway’s Todd Zwillich on the steps of the Supreme Court, where there’s likely to be a lively scene of protesters and supporters of health care reform.
After we learn more about the judgment, we’ll do quick analysis of both the policy and political fallout with Avik Roy of the Manhattan Institute, Paul Starr of Princeton, and many more.
What you need to know to get ready for the ruling below...
+ What are they deciding again?
The court is actually deciding four things: whether they can rule, whether the individual mandate is constitutional, severability, and Medicaid expansion.
The most prominent is whether the individual mandate that everyone buy health insurance (or pay a penalty/tax) is constitutional. If the court says yes, then the Affordable Care Act is upheld. If the court says no, it gets complicated.
If they strike down the mandate, the court has to decide if the rest of the ACA can stand without the mandate – that’s "severability." They are also deciding whether the ACA’s Medicaid expansion puts an undue burden on states. That’s a somewhat separate ruling, but it’s all related.
Here are the options we’re gaming out. Everyone is scrambling to prepare, and Brian’s got a prep for each!
1) ACA Stands: Individual Mandate affirmed, rest of provisions as well.
2) ACA Struck Down: Everything goes, individual mandate and the rest of the law.
3) No Mandate: Individual Mandate struck down, everything else stands.
4) No Mandate v 2: Individual Mandate struck down, as well as two key provisions tied to it that ACA proponents argue makes it fiscally viable.
5) Medicaid Expansion: The court rules that Medicaid expansion is an undue burden on the states, or isn’t. This is somewhat independent of the above scenarios, but may influence the opinions.
6) No Decision. (What?! Yes, technically, the first thing they will decide is if they even have to decide. It’s extremely likely they will, but you never know…)
7/8/9) Any of the above decisions could be combined in various ways. Do the math -- lots of possibilities!
+ What do we expect?
We’re not in the guessing game here at the Brian Lehrer Show, but it’s interesting to track the shift in opinion among legal experts, who once thought that there was virtually zero chance of the mandate being overturned. Now most think it’s likely. Check out the change in Intrade, for instance.
Most people think it all comes down to whether Justice Kennedy votes to uphold the mandate, or swings over to the other side. That’s the difference between a 5-4 vote in either direction.
Producer Jody Avirgan wants you to keep your eye on one weird scenario: a 6-3 vote in favor. One element of this case is whether the "penalty" for not purchasing health care is a penalty or a “tax.” The constitution gives Congress the right to levy taxes, so this line of thinking could persuade conservatives. In this case, 4 liberal justices would vote for the mandate on commerce clause lines; and two conservatives would buy the tax argument to uphold the mandate.
+ One last point
All of these scenarios and all of their various justifications will lead to a lot of opinions. Justice Roberts is expected to write the lead opinion, but there will no doubt be lots of paperwork and nuance to work through over the next days and weeks. Not to mention the unpredictable way in which this ruling will combine with the Fall election, tax reform, and other political battles.
And, of course, none of this is a legal abstraction. Regardless of the outcome, we will continue to have the conversation about how to best provide health care for the almost one in five Americans without insurance, and the many more with inadequate coverage.
+ Reading List
Here’s a list of what we’re reading in advance of the ruling. There are tons of pieces out there, but these have been particularly useful:
ScotusBlog | Washington Post Scenarios | Bracketology: The Ruling and The Election | Supreme Court Coverage at WNYC | NPR Coverage | Kaiser Health News | What Experts Are Predicting | Timeline of Challenges to Obamacare