SCOTUS votes, people wait

If tradition holds, today the Justices all met in a conference room at the Supreme Court and voted on the individual mandate’s constitutionality. The next step is the writing of opinions and some (or lots) of back-and-forth among the Justices until they release the decision in late June.

If you’re like me and a whole lot of people on the Democratic side, you’re very worried that the majority will decide it’s not constitutional and throw the whole Affordable Care Act into chaos, or they’ll just decide it can’t be salvaged and throw the whole thing out.

Well, maybe not

As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.

[snip]

As Justice Kennedy asked Verrilli, “Can you identify any limits on the Commerce Clause?” To get Kennedy’s vote, there has to be an affirmative answer to that question.

There is a limiting principle, however, and Verrilli and several of the justices articulated it during the two-hour-long argument. The nature of healthcare is such that we are all inevitably participants in the healthcare market (save for the Christian Scientists, and they are exempt). No one can avoid the need for healthcare, no one can predict when he or she will need it, and virtually no one can afford it when he or she does need it. And ultimately, the healthcare market provides free care to those who cannot pay for it (principally at hospital emergency rooms).

The thing that struck me the most about Roberts’ and Alito’s arguments was this: they seem to genuinely not understand how insurance works. They both objected that “the law requires healthy people to subsidize unhealthy people, by compelling the young and healthy to buy insurance that they might not use (at least not immediately).” Well of course it does. All insurance works that way. We all buy auto and homeowner’s insurance; our premiums go into one vast pool from which individual claims are paid out when somebody’s car is damaged or house burns down. It’s immaterial whether we ever file claims or not. It boggles my mind to think that two guys in their 40s and 50s don’t seem to understand that.

Anyway, there’s a ray of hope from The Nation’s legal affairs correspondent.

One Comment

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