Health Care A Go Go

In the next two weeks, we should be hearing what the Supreme Court of the United States thinks about the Patient Protection and Affordable Care Act. Will they overturn all of it or just parts of it? The political world and, indeed, many others are anxiously awaiting the verdict.

My inkling is that they vote against the mandate but keep the rest of it. But what then? Andy over at eletoral-vote.com has the answer.

If the mandate is struck down, the Democrats have an easier path if they choose to take it. The Court's argument in striking down the mandate will no doubt be something like the government does not have the power to compel people to engage in commerce (like buying insurance) if they don't want to. The solution is simply to structure the mandate differently. Congress could amend the internal revenue code to say everyone has to pay a tax of $1000 to cover the costs generated by uninsured people getting treated at hospital emergency rooms (because Congress has mandated this). However, to help people who are not part of the problem, the same change to the law could give a $1000 credit to anyone who can prove they have health insurance. In effect, this is almost the same as a mandate except that failing to have insurance is no longer a violation of the law. It simply means you lose out on one of the myriad of credits the tax law provides. There is little doubt Congress has the power to tax, so such an approach is likely to be acceptable to Justice Anthony Kennedy, who seems to have acquired the power to veto laws singlehandedly, even though he never campaigned for the job. 

And what of the Republicans?

Be careful what you wish for, you might get it. If, as Republicans are hoping, the Supreme Court strikes down some or all of the Affordable Health Care Act later this month, they will cheer for a week. Then Democrats will pound them on what they plan to replace it with. An answer like "Nothing. The current system works well" is not likely to get many votes among the 50 million people currently uninsured. But despite the real possibility that the Court may strike down part or all of the law, the GOP does not have a plan of its own. 

The problem for the Republicans is that coming up with a minibill that just includes the popular features of the ACA would be a disaster. Allowing young people up to 26 to stay on their parent's plans until 26 would be easy to do--in fact some health insurance companies may do it voluntarily because it means more customers. The tricky part is the provision that allows anyone to sign up for health care regardless of any preexisting conditions. A bill that included that but did not have a mandate for everyone to get health care would bankrupt all the insurance companies in short order since many people would wait until they were seriously ill before getting insurance. Every country in the world that requires insurance companies to take everyone also has a mandate in one form or other.

If this happens, it would be a great example of what I mean when I say that one can win the argument and still lose.

The more I think about this, the more I realize that I'd rather have SCOTUS strike down parts or all of the law so it be changed for the better. The GOP has signaled that they are going to keep the more popular provisions anyway so raising taxes and/or offering tax credits seem much more likely now. Even the public option could make a bold reappearance and pass. It would simply be Medicare for all and that is perfectly legal under the Constitution.

Here is a handy dandy flow chart to help you with all the possible outcomes.