At long last, two years after its passage, President Barack Obama’s nationalized government takeover of health insurance is headed to the Supreme Court’s chambers. It’s important now to consider what will happen if the Supreme Court does indeed strike down the individual mandate.
The answer is: We can’t know. But we can make some reasonable suppositions.
The current problem for the White House is that the law remains unpopular. Beyond the overwhelming opposition from Republicans and independents, Obamacare isn’t even popular within the president’s own party. A recent ABC News poll found 48 percent of Democrats say they want the mandate or the entire law tossed out.
What’s more, Americans of all political stripes expect the Supreme Court to find the mandate unconstitutional–an idea then-House Speaker Nancy Pelosi (D-CA) scoffed at when the law was passed. Polls from the Kaiser Family Foundation consistently show most of the public expects the mandate to be ruled unconstitutional.
Assume most Americans are right and the Supreme Court does indeed find the individual mandate unconstitutional. If the Court decides in favor of severability, it could leave the rest of the law intact. This could make for a complicated and messy decision that leaves the public confused about what comes next–and could make many assume Obama’s health care law has been repealed or struck down in full.
But that would not be the case–the individual mandate is a crutch supporting only a small portion of Obama’s law. It can be stripped out while leaving dozens of other mandates intact.
Eliminating the individual mandate will do nothing, for example, to remove the portions of the law demanding states create bureaucrat-run health insurance exchanges driven by massive redistributionist taxpayer subsidies and organized according to the whims of Washington. Nor will it eliminate Obama’s price controls, his mandate on employers, his massive expansion of Medicaid, his conscience overrun, or his unelected rationing board. All those elements and more will remain intact.
The likeliest result of a decision stripping the individual mandate but not much else from the law is a temporary pause in the debate during an election in which both sides will try to play the decision to their advantage.
A Court rejection of the individual mandate could actually do Obama a favor–removing the most unpopular aspect of his law and allowing him to stress other elements of it. Without the mandate coalescing opposition, Republicans may find the surviving balance of Obama’s law looks less objectionable to voters.
Indeed, the White House has been working on ways to accomplish the goals of the law and make it sustainable without the mandate, but the administration will likely hold back from putting anything in legislative language until after the election.
The Republicans, for their part, have yet to coalesce fully behind the “don’t mend it, end it” voices, and with presumptive nominee Mitt Romney saying he would be happy to “repeal the bad and keep the good” if he couldn’t get full repeal as president, it’s likely Republicans will have to stop short of full repeal if the government remains divided. This could easily result in a mess of a law that pleases no one and does nothing to lower health insurance costs, which have continued to climb despite Obama’s promises.
Right now, proponents of the law can only keep their fingers crossed and hope Justice Anthony Kennedy is in the right mood on the day the Supreme Court decides. Opponents of the law must work to educate the public about what will remain even if the individual mandate is struck down, so voters do not move on under the mistaken impression the problem has been solved.
Whichever side succeeds will determine the future of health care in the United States after the Court rules. The next Congress and president will have to decide whether more government is still the answer.
Benjamin Domenech ([email protected]) is a research fellow at The Heartland Institute and managing editor of Health Care News.