Preparing for the Supreme Court's Big Health Care Decision

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Everyone's waiting for the Supreme Court's ruling on the Affordable Care Act that's expected to come as early as tomorrow, so here's our guide to how you should be preparing of the Court's decision. Depending on how the Supreme Court rules, which is expected before the Court's term ends this week, the Affordable Care Act could live, die, or limp into existence in a modified form. Obviously, the part of the bill causing the most discussion is the individual mandate and whether or not it will survive. This is how most people are looking at tomorrow's ruling. 

The 'Stock Up On Bread and Bottled Water' Types

The uncertainty over how the Court is going to rule is forcing Democrats and Republicans to prepare multiple press releases to respond to the different ways the ruling could go down. It never hurts to be prepared for every scenario. The Washington Post's Sarah Kliff spoke with Families USA Executive Director Ron Pollack who said he has eight different press releases preparing for how the Court will rule. "There’s one for if the whole law gets upheld, and another for a situation where it is all taken down. One for where just the individual mandate falls, and a completely separate statement should the end to preexisting conditions go with it," Kliff explains. "I know it sounds ridiculous," Pollack told her, "but how many things do you want to be unprepared for?" Indiana Treasurer Richard Mourdock was red in the face on Friday when Politico caught him accidentally uploading four different reaction videos to Youtube. 

The Monday Morning Quarterbacks

Some are already looking back on the strategies Obama's team used to defend the Act and criticizing their choices. Did they use the right offense, the right defense, the right special teams? The Washington Post's Peter Wallsten and The New York Times' Peter Baker are both looking back and wondering what Obama could have done differently in the event the Act falls. The Times' Baker writes that the Democrats' early confidence over the bill's constitutionality might end up being their undoing. He explains: 

Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.

Adversaries said the law’s proponents had been too attentive to liberal academics who shaped public discussion. “There’s very little diversity in the legal academy among law professors,” said Randy E. Barnett, a Georgetown University law professor and a leading thinker behind the challenge. “So they’re in an echo chamber listening to people who agree with them.”

Wallsten, on the other hand, looks at arguments over whether Democrats should have appealed to Conservative Supreme Court judge's penchant for drafting their decisions based on the thinking of the Founding Fathers: 

The critics say the administration failed to fully develop arguments tailored to the court’s conservative members, who often look to the original intentions of the Founding Fathers for guidance. The critics represent a small but influential group of scholars who believe that this “originalist” thinking — typically dismissed by the left as outmoded and dangerous to modern precedents such as the Roe v. Wadeabortion ruling — could be used effectively to defend liberal laws. Some say that Obama, who has criticized the originalist view, and lawyers in his administration may have decided for ideological reasons to steer clear of a conservative-seeming argument — a suggestion deemed absurd by administration officials.

To defend the health-care mandate, for instance, the government could have cited past measures such as a 1792 law signed by President George Washington requiring able-bodied men 18 or older to purchase a musket and ammunition. Several scholars, even former president Bill Clinton, have cited the 18th-century law as an example of an individual mandate that happened to be imposed by a president with impeccable originalist bona fides.

Hindsight is 20/20, etc. "Monday-morning quarterbacking is always easier than actually playing the game," Harvard University law professor Laurence Tribe told Wallsten. Tribe's advised the Obama administration on legal issues in the past. H said there were "weighty considerations" that probably led Obama's team to opt out of using the musket defence but that he likely would have used it. 

The All-Or-Nothing Crowd

There are some who think that if the Court passes a neutered version of the Act that doesn't include the individual mandate, then the bill itself will fall apart, or the repercussions will lead to an outrageous rise in health care prices. Talking Points Memo's Brian Beutler writes: 

The prevailing view among policy experts and industry insiders is that if the mandate falls, the rest of the health care law becomes unsustainable. A phenomenon known as adverse selection will dominate the insurance market when younger, healthier people opt not to purchase insurance, premiums will spike, and the market will enter a death spiral. If the court strikes the mandate, they say, Congress or the states will have less than two years to figure out how to replace it, or the insurance industry’s in for some big problems.

Ron Pollack doesn't agree with this, though. "The sky is not going to fall if the mandate is invalidated," he told TPM. "Will there be some escalation of premiums? Maybe. I don’t know. But there are some serious differences between the experience most people see as examples of what happens if you don’t have a mandate and what’s in the Affordable Care Act." 

The Legacy

Of course, the person the ruling is going to mean the most to is President Obama. As The New York Times' Jodi Kantor writes, the Affordable Care Act is the cornerstone to Obama's presidency, and could play a huge part in how he fares come November. "Before he became president, critics said that Mr. Obama’s greatest achievement was his own rise, that he played it safe — sometimes voting “present” in the Illinois State Senate — rather than taking risks for what he really believed," she writes. Critics called out Obama for being too passive as far back as when he was an upstart politician in Illinois. He's faced the same criticism in his stint in the White House too, but he's held strong on his belief in the Affordable Care Act despite some of his closest advisors warning against it. "For those who wondered what Mr. Obama really believed in, universal health coverage seemed to be the answer."

Until the Supreme Court makes its ruling, everything is speculation. We just have to wait and see, and be ready to react accordingly. 

This article is from the archive of our partner The Wire.