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Six Ways the Supreme Court Could Rule on Obamacare

9:01 AM, Oct 3, 2011 • By JEFFREY H. ANDERSON
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4. The Supreme Court could declare the individual mandate unconstitutional and also void the law’s “guaranteed issue” and “community rating” provisions (provisions that, in tandem, would require insurers to cover all applicants without charging higher premiums to those with expensive preexisting conditions), while upholding the rest of the legislation. This is essentially how U.S. District Court judge Christopher Conner ruled. In the drafting of the legislation, these mandates were inextricably linked. Without the individual mandate, the requirement that insurers cover everyone with expensive preexisting conditions — without charging them higher premiums — would simply lead to people waiting until they are already ill or injured before signing up for “insurance” to pay for their care. 

Again, this point has been made quite well by the White House: “If insurance companies can no longer deny coverage to anyone who applies for insurance — especially those who have health problems and are potentially more expensive to cover — then there is nothing stopping someone from waiting until they’re sick or injured to apply for coverage since insurance companies can’t say no. That would lead to double digit premiums increases — up to 20% — for everyone with insurance, and would significantly increase the cost [of] health care spending nationwide.”

It would seem that if the individual mandate is struck down, then the mandates requiring coverage of those with preexisting conditions (“guaranteed issue”) at the same premiums as everyone else (“community rating”) must be struck down as well.

5. It could strike down the individual mandate and the rest of the legislation along with it. U.S. District Court judge Roger Vinson ruled in this manner, arguing that since the individual mandate is “the keystone or lynchpin of the entire health reform effort,” upon its removal the entire act must be invalidated. Vinson wrote,

“[T]his Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which...were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act.”

6. It could decide that the states lack legal standing to bring the suit at this time, thereby postponing challenges to Obamacare’s constitutionality until after the election and likely until after its full implementation (in January of 2014) — if it’s not repealed first.

Whichever way the Court rules, and by whatever vote, three things are important to remember:

First, while the justices have the final say on whether Obamacare will be treated as being unconstitutional or not, and while their judgment should be respected and observed, they have no claim to infallibility. In other words, no private citizen should feel compelled to yield to the rightness of the justices’ decision, only to its authority — an important distinction that Lincoln made clear in response to Dred Scott

Second, as Chief Justice John Marshall said in McCulloch v. Maryland, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” In other words, the wisdom and the constitutionality of legislation are two distinctly different things, and Obamacare is an unprecedented threat to Americans’ liberty, the nation’s fiscal solvency, and the basic relationship between the government and the people — regardless of whether the Court rules that it is also unconstitutional.

Third, all but one of the six possible holdings by the Court (#5 — striking down the legislation in full) would still require a political resolution. In all likelihood, therefore, the fate of Obamacare will be determined not by a decision of the Court, but by the success or failure of the repeal movement — which in turn will likely be decided by the presidential election.

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