The mixed record for health care reform in the courts continued today with a partial win for conservatives, with the 11th Circuit ruling that the individual mandate is unconstitutional. As David Kurtz reports, the Appeals Court didn’t follow the lower court ruling that the entire ACA must be thrown out; instead, they said that the rest of the law could be implemented without the mandate.
Five quick points:
1. It has been clear from the start that ACA was eventually headed for the Supreme Court; now it’s almost certain that the Supremes will take the case, since today’s ruling conflicts with an earlier ruling from the 6th Circuit. The most likely scenario is a SCOTUS decision next spring.
2. As Sarah Kliff points out, this ruling makes it much more likely that most of the law is safe. The remaining issue is whether the law will or won’t include the individual mandate. However, do remember that the Supreme Court is free to revisit or even introduce new issues, so that’s not a 100% guarantee. Still, it remains highly likely that the rest of the law will be fine.
3. On the same theme, remember: the Supreme Court is only constrained by the arguments and logic in lower court decisions if it wants to be. In practical terms, this has always been about what the median Justice — presumably, Anthony Kennedy — wants to do. It still is.
4. The health care policy wonks tell us two things about the individual mandate. One is that the function that the individual mandate fills within the ACA is necessary to make the entire policy work. The other is that that function doesn’t have to be filled by something that looks exactly like the individual mandate in the current law. So if the Supreme Court does toss it, a legislative fix wouldn’t be difficult — if Congress wanted to fix it.
That’s certainly unlikely, but even assuming a Congressional fix doesn’t happen, there are various ways a patchwork substitute could be built by regulators and interested state governments. Austin Frakt has a rundown of those possibilities right here.
5. You’re going to read a lot of claims that the SCOTUS ruling will come down in June, 2012, right at the high point of the presidential campaign, and it will shake up the race. Those claims are probably wrong. Instead, June 2012 will most likely be a lull in the campaign, after Mitt Romney or Rick Perry or whoever has clinched the nomination but at any rate well before the conventions. Voters won’t be tuned into the election in late spring next year, and by the time they do — in the fall — the ACA ruling will be just part of the background. No doubt some voters will be affected by health care in general (although issues are always less important in presidential elections than pundits tend to think), but the fate of ACA in the courts isn’t likely to matter much.
That’s especially true if the Supreme Court follows the 11th Circuit and zaps the individual mandate but leaves the rest alone (or if they follow the 6th Circuit and uphold the whole thing). In either case, absolutely nothing visible to voters will change between June and November.