It may hinge on Justice Anthony Kennedy. He’s often the Supreme Court’s swing vote; for the most part conservative, Kennedy sometimes sides with the high court’s liberal four justices.
And this is where reading the tea leaves regarding Kennedy’s comments in the three days of oral arguments on the Affordable Care Act gets dicey. During the government’s turn defending the individual mandate, the heart of the law, Kennedy seemed skeptical of its constitutionality. He referred to the mandate as changing “the relationship between the Federal Government and the individual in a fundamental way” that puts “a heavy burden of justification” on the administration.
But when Paul Clement went to the dais to argue on behalf of the states challenging the law, Kennedy appeared to give hope to the act’s supporters. He showed some sympathy for the government’s position when asking Clement whether “the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks?” That question seems to recognize the impact of the noninsured’s “actuarial reality” on interstate commerce, which is the core of the government’s defense of the individual mandate’s constitutionality.
At another point, Justice Kennedy revealed an understanding of the notion that the uninsured have a substantial affect on the healthcare market: “But they are in the market in the sense that they are creating a risk that the market must account for.” The justice made the same point in another comment: “The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”
It is axiomatic that a justice’s comments during oral arguments often provide little clue to how he or she might vote in chambers. Kennedy gave each side reason to believe he would support their position, but that is wishful thinking based on trying to read the tea leaves, which most court watchers know is risky.
Many legal experts had thought — prior to the arguments this week — Chief Justice John Roberts might vote with Kennedy and the liberals to uphold the law, yielding a 6-3 majority. Now it looks like the verdict will be 5-4 one way or the other, which does not do much for the court’s institutional image. Such a split decision would reinforce the public perception that the Supreme Court is as partisan an institution as the other branches of the federal government. True or not, that would be a damaging perception given that the court has to decide several more ideological issues in the next few years, including the Arizona immigration law, a followup to the Citizens United case on campaign financing, and a Texas affirmative action case.
Aside from institutional concerns, what happens if the court overturns the individual mandate, but leaves the rest of the law intact, including restrictions on the rates insurance companies can charge and the ban against discriminating on the basis of pre-existing conditions?
If that happens, the Obama administration might be able to salvage the law by adopting an approach used in Medicare’s Part B program, which is not mandatory but if recipients wait too long to sign up for physician coverage they pay higher premiums. Also, there is a narrow window for signing up after an individual’s initial eligibility, which guards against people applying for health insurance in the ambulance.
But that fix, like others, would require congressional approval, which in turn means the Democrats would need to recapture the House and achieve a filibuster-proof majority in the Senate.
Absent a federal fix, many of the states that have been gearing up to implement the law — including New York, California, and Connecticut — might follow the example of Massachusetts and establish mandates of their own. Many of these states, and others, already have begun to insure the previously uninsured, and they would be reluctant to remove these people from the rolls.
That would leave a patchwork of insurance policies. Far better for all for Anthony Kennedy to vote to uphold the Affordable Care Act. Even better if John Roberts would also vote yes.