Supreme Court to return hear ObamaCare verdict case this week. Three possible rulings.
April 2, 2012


Superman PSA - June 1952(Editors Note: It appears my title is in error. The Court seems to have only agreed to “hear” the case at this time, not produce a verdict. I apologize for the error. – Mugsy)

There isn’t much to say (so why is this op/ed so long?) in advance of today’s anticipated ruling from the Supreme Court on the “mandate” portion of “The Affordable Care Act” (“ACA” or “ObamaCare” for short). Unlike most cases where the verdict is either “Yea” or “Nay”, there are actually three possible outcomes: “Constitutional”, “Unconstitutional and the entire law must be scrapped” or “Only the mandate portion is unconstitutional” but the rest of the law can stand as is. Each decision can be arrived at in several ways and leave a multitude of consequences in their wake. One thing is for sure, no matter what they decide, someone is going to be very unhappy. So let’s examine each possible outcome:

Scenario #1: The Court rules, “Constitutional”.

The least complicated verdict to consider is that the “ObamaCare” mandate is ruled “Constitutional” and the law will stand unchanged. There are several reasons why the Court could rule this way: One, they could decide the “mandate” is so inseparable from the otherwise legal “ObamaCare” that extracting it would do more harm than good. While Luddites like Rep. Paul Ryan repeated as often as he could yesterday the ridiculous Tea Party claim that this is “a government takeover of health care” (‘splain to me how forcing people to buy private insurance is a “government takeover”???), one of the key factors that keeps health care reform from hurting insurance companies is that covering people with “pre-existing conditions” is offset by all the healthy people that will be paying into the system. As insurance company whistleblower Wendel Potter noted last week, “It’s not just Democrats that want the mandate, Insurance companies want it too!” For them, it means millions of new (healthy) customers paying into the system but not taking a dime out. The ONLY people so opposed to “ObamaCare” that they want the entire law scrapped are Republicans… and only a portion of them in fact.)

Or the Court could look at the entire ACA and decide the law does more good than harm, and tossing it would do more harm than good. Just because a law is ruled “unconstitutional” doesn’t necessarily mean the law has to go. I give you: “The USA PATRIOT Act”. Talk about your “unconstitutional laws”. The Patriot Act has more violations in it than an Oil Company’s Wall Street Slush fund. But the Court has remained mum on the issue because they believe “National Security” trumps “legality”. Yes, they carved out a special exemption when it comes to protecting American lives. Ironic, huh?

As we all know, “ObamaCare” is modeled after craptastic “RomneyCare” (everyone forced into the private market with no government competition to hold down prices), but Romney himself (unwittingly) made the case for a Federal mandate during his appearance on “The Tonight Show” last week when Leno asked about “denying insurance to people with pre-existing conditions”. Romney tried to claim support for keeping such actions illegal, but went on to say people can’t just show up and try to get insurance AFTER they get sick: “we can’t play the game like that”, said Romney. Correct Mitt, that is why you have a “mandate” that forces people to pay in BEFORE they get sick (never mind the fact he looks at this like “a game”.)

And lastly, the Court could rule the “mandate” Constitutional, because it really IS. How is it that “mandates” ALREADY ALLOWED BY STATE LAW are soooo unbearable at the Federal level? Most states already require every person to purchase auto insurance if they intend to drive… not to protect themselves, but to protect others. And that really is the very basis for the mandate. Unlike “buying broccoli” or “paying for your funeral”, YOUR decision NOT to buy insurance costs ME money by raising my rates. And even Republicans have conceded the insurance market affects Interstate Commerce (and therefore comes under the prevue of The Commerce Clause), giving the Federal government full power to regulate it.

In fact (as radio host Randi Rhodes has repeatedly pointed out), MEDICARE is a “nationally mandated federal health insurance program too!” And it’s more “Socialist” than even “ObamaCare”. It’s “Single-Payer”. How is it the Federal government can force everyone into paying into a Federal program like “Medicare”, but they can’t be forced to buy insurance from a “private” corporation? NY Senator Chuck Schumer pointed out on “Meet the Press” yesterday that if “ObamaCare is ruled unconstitutional, it opens the floodgates for other laws being ruled unconstitutional”, including Medicare and The EPA. If “ObamaCare” were ruled “unconstitutional”, how long do you think it would take Republicans to start challenging the Constitutionality of just about every Federal Agency in existence? (I even started a folder on the subject last year. Republican teanut Duncan Hunter (CA) actually tried to claim bike paths are unconstitutional” last June. I kid you not.

Scenario #2: The Court rules, “Unconstitutional: Inseparable from the mandate, so the entire ACA must be scrapped”.

This is the ugliest, most catastrophic (and IMHO the least likely) verdict. Yet oddly, could be the best of all possible outcomes. The court could decide the mandate is both Unconstitutional AND is just too integral to The Affordable Care Act that the entire law is worthless without it and therefore must go. But huge chunks of The ACA have already gone into effect. Young men & women under the age of 26 and just starting out can stay on their parent insurance while earning a degree instead of dropping out to pay for insurance. Or they can take “starter jobs” with little or no benefits as they establish their career”. People with “pre-existing conditions” can now buy insurance thanks to The ACA. If you strike down the entire law, then can insurance companies legally dump all these people from their insurance? How do you “unring the bell?”

States claiming to be “opposed” to “ObamaCare” have already received millions in Medicare funds through The ACA. 13 states have accepted money to create “health insurance exchanges” in their state. Scrap “ObamaCare” and what then? Already-cash-strapped states will have to repay Medicare the millions of dollars they received under a law the Court says must be thrown out? I just don’t see that happening.

On the flip-side, IF the entire law were thrown out, what then? “Health care reform”… whether you support “ObamaCare” or not… is something nearly EVERY American (sans a few extreme Conservatives) has decided is a done-deal, absolutely needed to control the soaring cost of health care (but don’t look to the GOP for an alternative). The idea that we’d go back to “no reform at all” is unimaginable. What then?

If you can’t have a “mandate”, that leaves just three options: “Single-Payer”, where ALL insurance companies are prohibited by law from selling BASIC health insurance, and a Federal program takes its place (this is what Japan’s mandate does to control costs); or the government could create its OWN insurance… aka: The Public Option… that competes with private insurance to keep rates low; or third… and the least likely… the full-scale nationalization of the health care system (ala: The V.A.) You thought “ObamaCare” was “a government takeover”? Wait till you see: “CanadaCare!”

If I had my drothers, I’d MUCH rather have “The Public Option” (TPO). “ObamaCare” actually does very little to control prices, and COULD in fact end up costing the government even more as insurance companies “cherry pick” the healthiest customers, leaving the sickest to go on Medicare. With almost no overhead, no shareholders to compensate, no huge salaries or executive bonuses to fulfill, TPO would force the big insurance companies to reform their business practices and abandoned their most deplorable profiteering if they wish to compete/survive.

But I think the likelihood the entire bill will be scrapped is the least likely, which leads us to:

Scenario #3: The Court rules, “Unconstitutional: But not vital to the survival of The ACA”.

This, I believe, is the most likely (and least thought-out) scenario. With the current partisan divide in The Court, and their penchant for split decisions, I suspect this court will try to “split the baby in half” and rule in a way that (they think) will make both sides happy (regardless of the consequences): that the “mandate” portion is a violation, but the entire bill doesn’t have to be scrapped because of it.

Now, as I point out in “Scenario #1” above, insurance companies actually LIKE the mandate and all the healthy new customers suddenly forced to buy their product. And the other new requirements that no one can be denied due to a “pre-existing condition”, plus full coverage of all children, are very popular and almost no one wants to see go. But can insurance companies afford to continue them without the mandate? With millions of fewer healthy people paying into the system, the sudden cost of covering seriously ill people could cause dozens of smaller insurance companies to declare bankruptcy and either go out of business or be gobbled up by bigger & bigger insurance companies until only a few remain, creating a near monopoly and sending insurance prices through the roof… undoing the very reform for which The ACA was created, rendering the entire law moot.

The only question left is whether this is a thoughtful court that actually considers the ramifications of their decision, or whether they go for the “quick fix” and leave it to Congress to deal with the fallout later. We’ll know by tomorrow.
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April 2, 2012 · Admin Mugsy · No Comments - Add
Posted in: Healthcare

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