The PPACA, aka the new health care law, is skating on thin ice. While one Appellate court has ruled it constitutional, another has ruled that one component -- the individual mandate -- is not. Should the law survive the inevitable Supreme Court challenge, a Republican President in 2013 could make it very difficult to enforce many parts of the law, or a Republican Congress could defund other parts. One can only imagine new Health and Human Services Secretary Michelle Bachmann's take on implementing the remainder of the PPACA and enforcing its current provisions.
And there's always the possibility of full repeal. Should the Presidency, the House and the Senate all be Republican in 2013, there is nothing to stop the Senate from removing cloture procedures (aka filibusters), passing a law repealing the PPACA, then having it pass the House and be signed by President Perry in the Yellow Rose Garden.
But let's consider the near-term future. It is likely that the Supreme Court, having two and possibly three Appellate Court decisions in conflict, will take up the constitutionality of the PPACA this coming term and rule on it before it adjourns sometime in late spring of 2012. What are the Supreme Court's options?
One of four things is likely to happen:
- They rule that the PPACA is constitutional, as did the 6th Circuit Court.
- They rule that the PPACA is constitutional, EXCEPT for the personal mandate, as did the 11th Circuit Court.
- They rule that the personal mandate is unconstitutional, along with some set of other provisions of the PPACA (e.g., making it illegal to discriminate on the basis of pre-existing conditions) which they would deem cannot be severed. Therefore this set of provisions would be stricken from the law. (I'm not actually sure they can do this, but hell, they're the Supreme Court. If they can name Bush President they can do just about anything...).
- They rule that the entire PPACA is unconstitutional, as did a District Court judge in the 11th Circuit.
If the first option comes to pass, no harm, no foul. The fate of the PPACA will probably depend on the 2012 elections. Without a Democratic administration, the law is unlikely to be enforced well. With an all-Republican sweep, the law could well be repealed.
If the second option happens, effectively the ball will have been batted to a Congress who will want nothing better than to let it go through their legs. The most likely possibility is that this Congress punts (thereby mixing metaphors), leaving it to their successors in 2013 to work something out -- probably on December 31st, 2013, a day before the exchanges and the pre-existing ban provisions take effect.
The pre-existing condition ban is the most important provision tied to the individual mandate. What tweaks to it might a new Congress enact? (Reconstituting the mandate as a tax instead of a penalty as should have been done in the first place would be constitutional but obviously verboten.)
Perhaps allowing some time-limited pre-existing condition non-coverage, as many employer-based health care plans do now? Having open enrollment periods instead of allowing anyone to get insurance at any time? Instituting significantly higher premiums for a limited time for anyone who signs up after having been without continuous coverge? Provisions like this might be palatable to Congress while mitigating, but not eliminating, the problem of people only obtaining insurance when they fall ill or have an accident.
Or will the insurance lobby be so powerful that Congress and the President will agree to simply get rid of the pre-existing condition ban? Surely the insurers will be screaming to their bought and paid for Congresscritters that the status quo would be untenable. But insofar as we have no idea who will be President or what the composition of Congress will be, all that we can do is wonder.
If the third option becomes reality, Congress could well choose to leave the whole hot potato be. After all, the Supreme Court will have spoken and done Congress' job for it. But that would likely leave the health care bill without the provision that guarantees access to health insurance irrespective of pre-existing conditions, while leaving no provision for a high-risk insurance pool (which will by law go away as of January 1, 2014). Basically back to square one, instead of providing health insurance coverage for almost everyone -- as has RomneyCare with an individual mandate and a pre-existing conditions ban in Massachusetts.
And if the Court rules the whole thing unconstitutional, then we are all truly and royally f***ed, at least in the shorter term. No subsidies, no high risk pools, no pre-existing condition ban for adults or children, no adult children able to stay on their parents' plans, no closing of the Medicare donut hole, no money for Federal health centers, no more liberalized eligibility and increased Federal monies for Medicaid.
And no prospect of Congress doing anything about it. Until such time as the health insurance and health care situation in the United States becomes absolutely impossible AND the Tea Party has been reduced to ineffectiveness, AND there is rioting in the streets, we cannot expect another attempt by Congress to attempt to reform health care.
What is the Supreme Court likely to decide? Given that even constitutional scholars have no clue, it seems foolish to speculate. All that is clear is that the issue seems to boil down to whether Congress can pass a law forcing me to eat broccoli. I wish to go on record as stating that I am against Congress passing a law forcing me to eat broccoli. Whether or not they have such power. Boiled, steamed or raw. And should Congress pass such a law, I will got to jail rather than eat my broccoli. Nor will I eat green eggs. But I do like ham.