Will the Supreme Court Create Zombie Obamacare?

<a href="http://www.flickr.com/photos/65954725@N00/6300439164/">Rob Schofield</a>/Flickr

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


The first question before the Supreme Court on Wednesday, the last of three days of oral argument about the constitutionality of President Barack Obama’s health care law, was whether the individual mandate—the requirement that certain uncovered Americans purchase health insurance or pay a fine—was the “heart” of Obamacare. In other words, if that beating heart is ripped out by a majority of the nine black-robed justices, should the Affordable Care Act be allowed to stumble along or be put down with a double-barrel shot to the head?

Former Solicitor General Paul Clement, representing 26 states challenging the law, said that without the individual mandate the rest of the bill would not work and Zobamacare should not be allowed to rise from the remains.

“What you end up with at the end of that process is just sort of a hollow shell,” Clement said. “You can’t possibly think that Congress would have passed that hollow shell without the heart of the Act.” Justice Antonin Scalia later asked Deputy Solicitor General Edwin Kneedler that particular question: “Can you take out the heart of the act and leave everything else in place?”

Kneedler had a tough position to defend. The Obama administration’s stance is that if the individual mandate is struck down, popular provisions like the ban on insurance companies discriminating due to preexisting conditions must also go. Kneedler was telling the court that if a majority chooses to rip out the heart of the bill, they will have to tear out the entire circulatory system, too. The reason: Without the individual mandate to push healthy individuals to buy insurance, the insurance industry would go bankrupt trying to cover those with serious, expensive health problems. Yet Kneedler also argued that the Affordable Care Act created a “sharp dividing line” between those popular reforms and the rest of the law. The legal concept in play here is “severability”: whether or not the law can remain if one piece is stricken.

The administration’s argument was essentially a plea to protect the health insurance industry should the mandate fall. Both Democratic and Republican– appointed justices seemed sympathetic to that argument. For the Republican-appointed justices, this would make it easier to overturn the entire Affordable Care Act. When Attorney H. Bartow Farr III—who the court designated to defend an appeals court ruling that neither the government nor the states embraced—stood up to argue that the law would still largely function as intended without the mandate, Justice Sonya Sotomayor worried aloud about an impending “death spiral.” Likewise, Justice Anthony Kennedy, considered the swing vote on the court, suggested that it would be judicial overreach if “one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”

Despite all the focus on the individual mandate and whether it could be severed from the rest of the law, the constitutionality of the law’s Medicaid expansion, which was also considered Wednesday, could have a more dramatic impact on Americans’ health care. That expansion will lead to 16 million more Americans being covered, about half of the entire number of people who would receive coverage under the Affordable Care Act. (Medicaid offers federal money to states to help provide health care to the poor and elderly—the program is technically optional, but all states participate. Under Obamacare, the states have to accept the expansion or opt-out of the program.) Clement contended that this expansion should be struck down because the states would never refuse the money, and therefore this provision was unconstitutionally coercive.

“The chances for an adverse ruling [on the Medicaid measure] are lower but the stakes are higher,” says Doug Kendall of the Constitution Accountability Center. “The stakes are higher because if the court does find coercion in this expansion of Medicaid, than a lot of other previous and future expansions of Medicaid are at risk.”

The Democratic appointees on the court were pointedly unconvinced by Clement’s argument. “It’s just a boatload of federal money for you to take and spend on poor people’s healthcare,” Justice Elena Kagan said. “It doesn’t sound coercive to me, I have to tell you.” Justice Ruth Bader Ginsburg pointed out that the court had never struck down a state-federal partnership program “because it was so good that it becomes coercive to be in it.” Justice Sonya Sotomayor said that the main element of “coercion” here appeared to be politicians not wanting to face voters after declining Medicaid funding.

Clement’s argument, however, received a favorable reception among the court’s conservative wing. Scalia likened the expansion to “an offer they can’t refuse,” while Kennedy said there’s “no real choice.” Chief Justice John Roberts asked sharp questions of the attorneys on both sides. Not only is Obamacare in danger of being struck down—and 16 million uninsured Americans losing coverage the law would provide them through Medicaid—the legal basis for the federal government providing insurance to the poor and elderly is in the crosshairs.

Conservatives came to the court hoping to strike the individual mandate. It now appears entirely possible that they will kill the mandate, the law itself, and fundamentally curtail the federal government’s ability to control how states use its money. This would be like asking for a pony for Christmas and actually getting it. 

In the final moments, the arguments returned to first principles. Solicitor General Donald B. Verrilli, in an attempt to recover from his halting performance Tuesday, urged the court in his final remarks to consider the consequences of destroying the Affordable Care Act outright.

“There will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty,” Verrilli said. But that may not be the kind of liberty members of this court consider important. Clement shot back that “It’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”

So the arguments ended where they started: Whether the greater deprivation of liberty is dying for lack of affordable care, or being taxed into buying health insurance. For those Americans struggling to pay their medical bills, Zombie Obamacare could be better than nothing.

But nothing is sounding like a real possibility.

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We can’t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who won’t let independent, investigative journalism down are the people who actually care about its future—you.

And we need readers to show up for us big time—again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We can’t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who won’t let independent, investigative journalism down are the people who actually care about its future—you.

And we need readers to show up for us big time—again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate