The Supreme Court building.
(Getty)
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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...
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...
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!
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.
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.
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
Jody Avirgan started two days before The Brian Lehrer Show won a Peabody, and he is taking full credit. He comes to WNYC from WFUV, where he produced "Cityscape" with the great George Bodarky. He's worked for KQED Radio in San Francisco, is a founder of Longshot Radio, and has produced pieces that have aired here and there and everywhere.
Comments [14]
All for it.
There are two provisions within ACA can have dramatic impact on reducing health care costs.
1)there are studies that support that over 40 billions a year can be saved through administrative simplification. In the act ,payers are penalized if they don't move forward in the implementation of the HIPAA transactions. These have existed since 1996 however they were not mandatory.
2) hospitals can be given the power to enroll patients directly into medicaid based on using the state system and declaring presumptive eligibility with proof. We have Medicaid today and over 30 per cent of people who could enroll don't . Hospitals have the patient in front of them rather than a appointments being made where they need to visit a government office. This will reduce charity care write-offs and get people into Medicaid managed care where their long term quality care can be controlled.
I believe no one has pointed out that we already have the most expensive system in the world because of the inefficiency of our system, which is based not on the need for a healthy populace but on profit-making businesses. I have read many times that we pay more per-capita, and get less for our money, as a society, than any other industrialized nation in the world. Let's get the profit out and the humanity in!
I'm pleasantly surprised that the individual mandate survived - it is critical for any insurance-based mechanism...and I think that Scalia's "broccoli" argument was silly because of the MANY alternatives. However, he (or was it Alito?) did make one valid point that I've not heard addressed: What about "burial insurance?" Similar to health care, we all will die someday, and if one (or one's family) makes no provision for burial costs, they will be borne by the state. Could the government mandate burial insurance.
The Supreme Court of the United States of Ameristan has evidently decided that the federal government enjoys unlimited power. Freedom is seemingly irrelevant and nonexistent, and thus here in the People's Republic of America, the government can unconstitutionally do as it wishes, without restriction by law or liberty.
I write. 2/3 of my income goes to rent and utilities. I love (laugh in pain at) the use of the word "choice" applied to the individual mandate. I cannot choose to either pay for insurance or incur additional strain on my income in the form of a tax/fine. Financially, I have no choice.
I'm a producer; I work long hours doing interesting things. In the immediate, it feels like the government is telling me to conform and a put on a white collar, or, I guess, not eat?
As a conservative:
POINT ONE:
The court didnt do it's job. It was to rule on the mandate being consistent or not with commerce clause.
Instead, it hid behind semantics----that the mandate was a tax and not a penalty. And that was the most rediculous argument of the Solicitor General.
POINT TWO:
I listened last night to CSPAN's coverage of the audio of the oral arguments. I caught the part where Mr. Clement, representing the states, was being grilled by the Justices.
I noticed Chief Justice Roberts joining the liberals in the challenging of Clement. Then I remembered Roberts vote on the Arizona case the day before.
That's when I got alarmed. I remembered Roberts' past votes as well. I realized the man is not a Federalist! He favors central gov authority on most cases.
And Obamacare is the federal government authority on steroids. So while i hoped for the best, I felt pessimistic this morning.
POINT THREE:
The good news is that this will put pressure of Republicans in congress to repeal, and not modify obamacare.
And the ruling will motivate conservative voters to vote in Nov.
@ kafantaris from USA, Ohio:
"If it's socialism, you'd have to buy it from the government,"
Would it be fascism if the Government was telling you what to buy and proscribing what could be sold?
"States in fact already have an individual mandate for car insurance, and they have been putting uninsured drivers in jail for years."
Yeah- but they don't mandate passengers and pedestrians
to get automobile insurance as a means for lowering
automobile insurance rates, pretexturally to make them affordable, actually to bailout failing business models and members of the 1%.
Don't you sheeple ever learn?
(No offense intended.)
Peace and Love
Ed, at you joking?? Please attack the president for more serious allegations like that he was born in Kenya, is a muslim, does not know the pledge, uses his left arm over the wrong side instead of his heart, come on man, get serious and attack him for meaningful things. Oh I forgot about the fake birth certificate!!, wow this plot started years ago when he was born to that muslim and the flaky mom.
Yeah, Obama is anti-Catholic that's why he has a Catholic VP, appointed a Catholic to the Supreme Court and just passed an amnesty for Catholics streaming across the border without papers. Definitely anti-Catholic...
With the Eric Holder contempt charge and the health care ruling this could be a bad day for our anti-Catholic, pro-abortion president. But even if the health care law stands, it still has to face the law suits filed last month by the Catholic Church on religious freedom grounds.
Thank you, kafantaris! Right from the start, when the opponents were screaming about the individual mandate, I immediately thought of the parallel with auto insurance, which states require drivers to buy. No whining about that, huh? Oh -- that's right -- it's only when it comes to health care that any government policy becomes "socialism." (And do these people even know what "socialism" is? It's not President Obama -- frankly, it was closer to President Nixon!)
Why are we polarized over the insurance mandate when it actually makes us pay our debts; and gives help and dignity to millions of uninsured Americans?
"The insurance mandate is socialism, plain and simple."
If it's socialism, you'd have to buy it from the government, which would also tell you what doctor or hospital to go to. But you can buy health insurance from anybody, and you can get treated by the doctor and hospital you want. What's socialist about that?
"Can't you see, the government is making us buy insurance. We have no choice in the matter."
Do you have a choice not to get hurt, or not to get sick? Why then do you want a choice not to have insurance to pay for it when you do?
States in fact already have an individual mandate for car insurance, and they have been putting uninsured drivers in jail for years.
"That's different. Driving is a privilege."
Then free health care must be a right in your book. Maybe this idea came from hospitals continuing to treat the uninsured the last half century.
The trade off to us living in a civilized society is that we have to follow rules we don't agree with. In return, we get great many things, including goods and services that otherwise would be unavailable. But, we still have to pay for them. The mandate makes sure that we do.
What's wrong with that?
You're not alone: Jim Romenesko posts:
http://jimromenesko.com/2012/06/27/im-guessing-sun-times-editor-jim-kirk-was-a-boy-scout-hes-prepared/
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