At issue is Obamacare’s central requirement that every American buy health insurance or pay a penalty. Critics say this is an unprecedented expansion of federal power — that if the government can force people to buy insurance, it can force them to buy anything.
Supporters, including me, say the mandate is just a logical extension of federal authority to regulate this market — a market that everyone eventually participates in at one time or another. We also know that if the mandate is struck down chaos is inescapable.
Under one scenario, the court would invalidate the requirement while leaving the law’s many other rules and regulations in place.
In that event, insurance companies would have to insure anyone who asked for coverage — but they would be barred from charging premiums equal to a best guess of what the new customers will cost.
Limiting how much insurers charge can work, but only if the mandate is in place — if everyone, the healthy as well as the sick, has to have insurance. It can’t work if people can go without insurance until they get sick and only then call up their friendly insurance broker and say “Cover me.”
So, Congress would have to do something. But what? One option would be to repeal the parts of the law that the Supreme Court left standing. Finding the votes to repeal the health reform is unlikely, as the next Congress is almost certain to be closely divided.
A second option would be to do nothing. But that can’t work — not for long.
Many people would drop insurance coverage and come back to buy it when they get sick. That outcome would doom insurance, insurers, or both. Premiums low enough to be affordable would not cover insurers’ costs. Premiums high enough to cover the insurers’ bills would be exorbitant.
And what if the Supreme Court throws out the whole bill?
That would leave America, including the nearly 50 million uninsured, even worse off than we were four years ago: with higher costs, more uninsured and a political atmosphere poisoned by the failure of an all-out effort to reform a health care system everyone knows is flawed.
Health insurance costs, driven by the steady march of new technology and population aging, will claim ever larger shares of our income. Those higher costs will make health insurance unaffordable for more and more people.
It would be hard to imagine any President or Congress returning for a generation to touch the endless political grief of basic health care reform with a ten-foot pole.
Is that the future we want?
For that reason and despite its unpopularity, the best possible outcome would be for the Supreme Court to find the requirement that people have health insurance constitutional. The health reform legislation is very far from perfect. But the right thing to do is to fix it, not scrap it.
Henry J. Aaron is a senior fellow of economic studies at the Brookings Institution. Aaron focuses on the reform of health care financing; public systems such as Medicare and Medicaid; Social Security; and tax and budget policy. This piece originally appeared at the Brookings Institution.