Key takeaway from day 3 of the Supreme Court hearings

March 30, 2012

Key Takeaway from Day 3:

Based on the Justices tough questions to law’s challengers and defenders, anything is possible.

What happened:

Two questions were considered on Day 3. The first question asked whether other parts of the law should be struck down if the individual mandate was struck down. The Solicitor General (SG) argued if the mandate were to be struck down, then the guaranteed issue and community rating provisions should also be struck down, but the rest of the law should stand. The Challengers argued if the mandate were to be struck down, the rest of the law should go with it. The Court appointed a third party lawyer to argue if the mandate were to be struck down, everything else should stay in place. The justices were equally tough on all three arguers, and by the end of the day the consensus was that the court could conceivably go in any of these directions if the mandate were struck down, although some suggested that striking down the mandate while leaving everything else in place was the least likely option.

The second question asked whether Medicaid expansion called for by the Affordable Care Act (ACA) was unconstitutional. The ACA offers to pay 90% of the costs of expanding Medicaid coverage to all state residents earning less than 133% of the Federal Poverty Level. States that refuse to do so could risk losing not only those funds but all federal Medicaid funding. The ACA’s challengers argued that such an arrangement was coercive, a way to force states to spend more on health care coverage for low-income residents at a time when state budgets make that difficult. Justices from across the ideological spectrum questioned the challengers’ argument, but they also pushed the SG for examples of why the Medicaid expansion did not constitute coercion. Many commentators noted that none of the lower courts had ruled that the Medicaid expansion unconstitutional, and one could speculate that the nature of the Court’s questions would suggest it was poised to follow suit.

The Justices will vote on all questions of the case in their private Conference, and then begin to write the opinions, which are expected to come out by the end of June. After researching the ongoings these last few days, it seems the only conclusion to come to is that anything is possible. I don’t envy their task.

John Barkett

Director, Extend Health, Inc. and former HHS analyst
Extend Health, Inc.

Visit Extend Health to use the ExtendExchange™ platform – the nation’s largest private Medicare exchange.

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