When the Supreme Court hears arguments Monday in the big health care cases, it will be considering much more than a simple yes-or-no question about whether the 2010 health care reform law is constitutional. That might be hard to determine from the public discussion, which has focused on the case's core question"”whether the individual mandate to buy insurance exceeds Congress's power. Polls show that a small majority of Americans simply believe that the Court will overturn the law.
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But the health care case is complicated, and the Court is considering a series of legal questions with interrelated answers. It could uphold or strike down the law, but it could also throw the suit out or perform surgery on health care reform. Here are a few of the possible outcomes:
- The Court says come back in three years. Monday's argument will be about a technical statutory question that could have a huge impact on the direction of the case"”whether a 19th-century tax law means the Court has no jurisdiction to consider challenges to the mandate this year. Court watchers say the odds of such a decision are slim but not impossible. The question is legally close, and the justices may be tempted to avoid the bad optics of a big political opinion in the midst of the presidential election. "The Court might think, you know, it might be better not to decide it in the middle of a presidential election," former Solicitor General and O'Melveny & Myers partner Walter Dellinger said at a briefing this week.
- The Court upholds everything. Despite all the debate, protest, and the public's ambivalence about the health care law, a majority of Court experts think that this outcome is likely. A recent American Bar Association poll of "a select group of academics, journalists, and lawyers who regularly follow and/or comment on the Supreme Court," predicted wins for the government on both key constitutional questions. There are four reliable votes for the government (the Democratic appointees), one predictable vote against (Clarence Thomas), and four justices who, to varying degrees, are in play.
- The Court abolishes the mandate, but just the mandate. If the Court finds the individual mandate unconstitutional, it then has to decide what happens to the rest of the law. That argument happens on Wednesday. The health care law lacks a severability clause, a common legislative tack-on that says what parts of the law can be divided from the rest if the courts identify a problem. None of the parties wants the Court to sever just the mandate"”the challengers want the whole law abolished, and the government says such a result could wreak havoc on the insurance markets.
- Bye-bye, health care reform. The Supreme Court is usually not enthusiastic about making decisions that amount to rewriting legislation. That is one reason the justices could decide that the mandate was such a key piece of the law that, without it, health care reform would never have passed. "I don't think they'll split the baby," said Todd Gaziano, the director of the legal center at the Heritage Foundation, and an opponent of the law. Of course, the health care reform law contains much more than just the mandate and subsidies for the uninsured. It created Medicare payment reforms; it includes funding for the Children's Health Insurance Program; it requires insurers to cover adult children up to age 26 on family policies; it requires restaurants to put calorie counts on their menus; and large employers to provide places for women to express breast milk. A decision striking down the whole law would be a big victory for the law's opponents. But it would leave Congress and the Department of Health and Human Services with several messes to fix, and fast. "I think it would be a tremendous disruption in the operation of our health care system," said Timothy Jost, a law professor at Washington and Lee University who supports the law.
- Out go the insurance reforms. The government is arguing that the mandate is needed to make other insurance reforms in the law work"”the requirement that insurers take all comers and the limitations on how much they can vary prices according to age. The Court could excise those provisions with the mandate. The Court could also slice and dice the law in any number of other ways. Every interest group imaginable has filed a friend-of-the-court brief suggesting what provisions should be cut or saved. It would not be fun to be a law clerk assigned to this question.
- No more Medicaid expansion. The mandate has been getting all the attention, but the Court is also considering another hot constitutional question: Does the law's expansion of state Medicaid programs inappropriately use Congress's spending power to coerce the states? No federal court has ever struck down a law on this basis, and experts across the political spectrum think a win for the challengers on this question is very unlikely. But the Court's answer could have very big repercussions outside of the health care sphere. Congress has grown very fond of using the carrot of federal funding to compel all sorts of state action, in areas as broad as educational policy, civil-rights enforcement, and the drinking age. And even a decision upholding the law could include some guidelines that would signal the Court will limit Congress's powers in the future. "I think this is one where the challengers can win by losing," said Kevin Walsh, an associate law professor at the University of Richmond former Antonin Scalia clerk.