The Washington Post

The Supremes will take on health care. But will it matter in 2012?

The Supreme Court will consider the constitutionality of the Affordable Care Act during its current term, with arguments likely in March and a decision scheduled before the end of June. The Court will allow five and a half hours for arguments on the case — two hours of which will focus on the mandate, which according to SCOTUSblog may be a record.

As Sarah Kliff explained in an excellent primer, a wide range of decisions is possible: they could simply decide that the entire law is valid, as a conservative appeals court judge did just last week; they could remove the individual mandate and leave the rest of the law intact; they could rule that the mandate is unconstitutional and that the entire law must fall; or they could still kick the can down the road and rule that no one has proper standing to challenge the individual mandate until it goes into effect in 2014. The Obama administration has been pushing for a quick judicial resolution. White House press secretary Dan Pfeiffer immediately tweeted: “We are pleased the Court has agreed to hear this case. We know the ACA is constitutional and are confident the Supreme Court will agree.”

Of course, the decision is extremely important in substantive terms, at least in the short term. While a Congressional fix for the individual mandate wouldn’t be technically difficult should the Court toss it out, in practical political terms there does not appear to be any possibility that the House would agree to pass any such fix. And without the mandate or some substitute for it the ACA won’t work. ACA requires insurance companies to sell policies to everyone, but without an individual mandate only those likely or certain to receive benefits will sign up. The question of how Congress will react to any SCOTUS decision tossing the mandate — by passing a fix, repealing ACA entirely, or finding some other solution — will hinge on the results of the 2012 elections.

But in political terms, I’d be very cautious about assertions that the Supreme Court decision will have any effect in November 2012 at all. Supposing the Court acts at the very end of June: that still leaves four months before the election. That’s a very long time in politics, especially for something that won’t have any immediate, tangible effect on people’s lives. I expect that both sides will deploy health care rhetoric in the fall 2012, with Republicans firing up their base with scare stories about Obama administration overreach, perhaps blaming “Obamacare” for premium increases over the last couple years, and the Democrats bragging about specific gains from ACA (such as young people staying on their parents’ insurance and the gradual closing of the Medicare prescription drug donut hole). But all of that will happen whatever the Supremes say in June, and would have happened had they decided to wait until after the election to act.

Bottom line: the Court actions will be important for the future of health care in the United States but not for the 2012 elections. Indeed, one could certainly make a strong case that the outcome of those elections will have a lot more to say about how health care is eventually handled than whatever the Court says about it.


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