I have no idea which way the Supreme Court will rule this year on the Affordable Care Act. Let me go out on a limb and predict a 5-4 vote on the question of whether the individual mandate is Constitutional. Just don’t ask me which way the vote goes.

I found the recent Obama administration brief submitted to the Court on the mandate question somewhat ironic. Not surprisingly, the Obama Justice Department argued that a finding by the Court that the individual mandate is unconstitutional should not jeopardize the vast majority of the new health law.

But the Obama Justice Department did concede that there are two provisions of the Affordable Care Act that should also be declared invalid if the Court rules the individual mandate is unconstitutional—the health insurance guaranteed issue and community rating provisions.

Now, I know there are lots of other people, many of them filing briefs with the Court, that disagree arguing that the whole law needs to be found invalid because the mandate is the lynchpin for all of it. But I will suggest it is significant that the administration would appear to be building a firewall for the rest of the law as they concede these points.

But consider this potential scenario.

First, if the Republicans win the Senate come November—not a certainty but very possible—they will do it with only one, two, or three seats to spare. That would be way short of the 60 votes necessary to get rid of the entire law. You will recall it took 60 votes to pass the entire law in the first place. I fully expect Republicans will hold their House majority and a Republican House would be only too willing to support whatever the Senate could accomplish in repealing the Affordable Care Act.

Many Republican legislative strategists have already concluded they can get rid of all of the new health law having to do with the budget—with a House majority and only 51 Senate votes. The insurance subsidies are the biggest part of the law and they are budget related. Of all of the non-budget items needing 60 votes, the biggest are the insurance reforms—the guaranteed issue and community rating provisions.

The Obama Justice Department, in conceding these insurance reform provisions would have to go if the mandate falls, may have just potentially paved the way for getting rid of effectively the entire law should the Court throw out the individual mandate: The Court knocks out the mandate and with it the insurance reform provisions and a 2013 bare Republican majority gets rid of almost all of the rest of the law.

That just leaves one detail. Will it be a Republican President or President Obama that would have to sign any Republican repeal legislation?

Robert Laszweski has been a fixture in Washington health policy circles for the better part of three decades. He currently serves as the president of Health Policy and Strategy Associates of Alexandria, Virginia. Before forming HPSA in 1992, Robert served as the COO, Group Markets, for the Liberty Mutual Insurance Company. You can read more of his thoughtful analysis of healthcare industry trends at The Health Policy and Marketplace Blog, where this post first appeared.

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9 Responses for “Dismantling the Affordable Care Act”

  1. BobbyG says:

    Nice.

    I found the DOJ amicus brief interesting, too. Nervously hedging a bit? Or a political taunt?

    The AHIP/BCBSA brief is unapologetic: “we want our risk-exclusion/pricing, recission, etc back if you dump the Individual Mandate.” Rewind back to 2008.

    Absent the Mandate, PPACA would be a Zombie Law.

    Hard to disagree with the logic of some of the briefs arguing that it is not “severable.” “Intent of Congress” and all that.

    6-3, or minimally 5-4 to Uphold.

    • Nate Ogden says:

      what risk exclusion? If PPACA is struck down we revert to the state laws on the books and 90% of what you claim is risk-exclusion is already eliminated. Name a state that doesn’t have guarantee issue small group reform on the books. Individuals are protected with HIPAA guarantee issue.

      • Exactly: There is nothing in the risk-rating part of PPACA that did not already exist under state laws or could have easily existed if states had legislated so. Nothing infuriated me more during the debate over PPACA than when President Obama and other Democrats touted the “benefit” that a health plan would no longer be able to “drop” a beneficiary once she became sick – a claim swallowed wholly by his court media.

  2. John says:

    Agreed. The DOJ amicus brief is interesting. However, I would like to address the growing amount of discontent with the ACA and its subsequent provisions. I don’t know if the Supreme Court, or the administration in general, is ready to handle the consequences regarding the eventual ruling. Clearly, more and more who begin to be educated on the ACA are against it. Be sure to check out the link below, which is the amicus brief submitted by the American Action forum on behalf of the ACA’s unconstitutionality.

    http://bit.ly/xVpItU

  3. MD as HELL says:

    Congress exceeded its authority. It is toast. If not, then the conservatives will roar back into power and repeal it. The young will eject the old and cancel their binging on healthcare, The unfunded mandates will be cancelled. The new morning in America will be without scooters and lift chairs and feeding tubes and dialysis for all the cocaine addicts. Disability will be disavowed and unfunded.

    Say Good night, Barack.

  4. DeterminedMD says:

    but what gets lost in this endless debate about his this legislation is what would be a better and more effective substitute if PPACA is dumped. I have said since day one the status quo prior to the law passed was unacceptable, then the idiots of Congress in 2009-10 showed no real problem solving skills of real effectiveness, and now we just see the legislation be a rope for tug of war between waring factions of extreme, rigid, inflexible jerks who are only grabbing at it for their own agenda, not society’s.

    Real representation is about solving problems, and if making a mistake with the first intervention effort, then redo it. No one, let me repeat this, NO ONE in Washington has started or ended any dialogue with such a comment.

    Both parties suck, they can’t leave office fast enough for me having been there longer than 10 or more years, and no one of substance and concern would want to run with the status woe continuing ongoing.

    This is the best we’ve got, folks, garbage in, garbage out!

    • Nate Ogden says:

      4 years of no washington involvement in healthcare would be a nice start. Seeing as how everytime government tries to fix healthcare the problem gets worse

  5. Bill says:

    It’d be great if the health care industry could solve the issues of the US health care system without government intervention, but one can’t ignore the role of the Medicare and Medicaid programs, malpractice liability and defensive medicine, and health care intellectual property rights law here. We all have to play in the sandbox and work together as much as possible to move forward from an unsustainable status quo.

    • Nate Ogden says:

      Which would be great but government is has always(since 1907ish) and is trying to push everyone else out. Government/Public plans have been the biggest failure yet they insist they are the solution.

      This is a problem created by government intervention that will only ever be solved by the removal of government.

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