Wednesday, March 28, 2012

ObamaCare: What Happens Next?

I’ve been giving this some thought the last couple of days and I wanted to put it down. I’ve even moved it ahead of some of my backlog on blog posts, but don’t worry, I’ll get to the others.

As I’m sure you’re aware of by now, the Supreme Court of the United States is hearing oral arguments on the constitutionality of ObamaCare this week. Since they’re doing this, it’s worth a minute to consider what happens next in the various scenarios. The first scenario is that SCOTUS might punt on the issue altogether because the states don’t have standing to take up the case against a tax that hasn’t been levied yet. Since this doesn’t appear at all likely, I’m going to ignore that option.

So, here are the others.

SCOTUS upholds the law in its entirety.

I still consider this the most likely option. I’ll say there’s a 45% chance of this happening. Obviously, if this happens, our efforts must turn to repeal. Having former Governor Mitt Romney (R-MA) on the Presidential ticket will not make that any easier, but the bigger hurdle will be the stamp of approval by SCOTUS. In fact, Romney has gotten pretty good at making the case that what he did in MA is entirely different than what the President has done. Still, if this happens, we must take control of Congress and the White House. November becomes a harder climb, but an extremely necessary one.

SCOTUS finds just the individual mandate unconstitutional.

This is the second most likely option, at about 40%. In the past, many have pointed out that Congress neglected to add the “severability clause” to the health care bill. Congress puts that in laws to protect themselves from SCOTUS overreach, by saying that if SCOTUS finds one part of a law unconstitutional, that the rest of the law is still valid. So, one of the theories has been that since Congress left this out of the bill, that the whole law goes down in flames if SCOTUS finds any part of it unconstitutional. However, that does not appear to be the case. SCOTUS has generally taken the severability clause as implied lately, and it’s likely they will do so again, in this case. However, the court may decide (correctly in my view) that the mandate is the cornerstone of the law, and that the law can not stand without it. I’ll cover that one later.

Assuming they decide to break up the law, it’s going to be left in shambles. The CBO will be forced to rescore the law, and the new score will not be pretty. Supporters of the mandate, citizen and company, will be screaming to have this addressed. The next Congress and the next President will have to rewrite the law from scratch. November now becomes absolutely huge. For both sides. This might be just the thing to motivate Dems to get out and vote in November. And don’t think that if the GOP can hold the House while the Dems hold the Senate and White House that Speaker John Boehner (R-OH-08) will be able to do much. He’s not going to be able to direct his caucus to just vote no on everything. The law will have to be rewritten. Doing nothing in this case is possibly worse than doing something. This is the ugliest of all possible scenarios. Welcome back to summer of 2009!

SCOTUS finds other pieces, such as the Medicaid Mandate, unconstitutional.

There’s maybe a 10% chance of this happening. I really think that if the court gets to here that they toss the whole law. I don’t think it’s possible that they uphold the individual mandate and yet toss the Medicaid mandate. I also don’t see how the law can stand if both are gone. Politically, this scenario isn’t all that different from the one above. While I think it’s easier to rewrite the law without the Medicaid mandate than without the individual one, the effects of this are felt everywhere. This situation might help Romney a bit because it goes to his strength in this argument, states rights and economics. The Medicaid mandate really puts a huge financial burden on the states. I think losing this one would be an emotional blow to the liberals, rather than a cause to rally behind.

SCOTUS tosses the whole law out.

I give about a 5% chance of this happening. Now, it may happen in a multitude of different ways. The court may decide that the whole law is an overreach and needs to go away. They might just decide that the individual mandate is the problem, and punish Congress for neglecting the severability clause. Or they might decide that even though it’s just the individual mandate, that the law crumbles to pieces if it’s removed. They might make a similar argument about the Medicaid mandate. If both are found unconstitutional, they might look at the law and say “what else is there?” None of these options are at all likely, but all together the odds might be up around 5%, and worth discussing. Obviously, this is the best case scenario for ObamaCare opponents. The law’s destroyed, and it’s not going to be brought back by the next Congress, no matter who’s in charge. It’ll be dead for a generation. It’s good for Romney because he’ll be able to campaign and not worry about RomneyCare. And it’s almost certainly going to leave the Democrat base dispirited. The only question is whether the Republican base would be motivated, or whether they’d feel like they’d earned a rest after that.

So, 45% chance SCOTUS does nothing and 55% chance they knock down the law, at least in part.

If you were thinking that you might sit out November’s elections, expunge that thought. Your vote is definitely going to be needed.

UPDATE: I meant to mention earlier why I believe a complete overturn is unlikely. This court seems to prefer to make its rulings as narrow as possible. A broad ruling that the entire law should be thrown out does not fit the profile. Also, the Supremes are very much aware of their role in the three branches of government. And very much aware that a complete overturn of this law would likely be seen as equivalent to a declaration of war on the Legislative and Executive branches. Not saying it’s impossible. But I wouldn’t bet on it.

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