‘Obamacare’: Nothing without the mandate?

The Supreme Court is tackling two aspects of the healthcare reform law Wednesday. One is the subject of an editorial by The Times -- whether expanding Medicaid coerces states to do something Congress doesn’t have the power to order them directly to do. Not surprisingly, given its general position on the law, The Times’ editorial board argues that the expansion is legal.

The other issue is whether the entire law should be struck down if the individual mandate to buy coverage were held unconstitutional. It may be more than just a hypothetical at this point, Justice Antonin Scalia suggested in comments from the bench Wednesday: “[T]here is no way that this court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it … in toto, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance?”

One interesting aspect of this issue is how it forces opponents of the mandate to undermine some of the arguments they’ve been making about its constitutionality. The Obama administration, citing the Supreme Court’s reasoning in Gonzalez vs. Raich, has argued that the mandate plays a vital role in the regulatory regime the law creates for the healthcare market. In short, it prevents people from gaming the system by signing up for coverage only when they need treatment, knowing that the law’s new rules bar insurance companies from denying coverage to people with preexisting conditions.

Opponents of the mandate have argued that it’s not a proper way to accomplish that purpose. They contend that there are a number of mechanisms available to combat cherry-picking by insurers and gamesmanship by their customers. Congress just chose the wrong one.

On Wednesday, former Solicitor General Paul Clement, who represents the National Federation of Independent Business and a handful of business owners, argued that the entire law should be thrown out if the mandate were ruled unconstitutional. That’s because the mandate is crucial to the functioning of the other key portions of the act -- the insurance reforms, the insurance-buying exchanges, the subsidies for individual policies. Congress would not have enacted those provisions without the mandate, Clement argued; therefore, the court should invalidate the entire thing and let lawmakers start over from scratch.

But if the mandate really is one of several approaches that could have been taken, why not leave Congress to pick another one to fill the gap the court would leave by striking it down? And what about the bill’s efforts to slow the growth of healthcare costs, which have nothing to do with the insurance reforms? Or the Medicaid expansion?

Justices Ruth Bader Ginsburg and Sonia Sotomayor framed it as a question of judicial conservatism: How far should the justices go to decide statutory matters that Congress could decide for itself? But Justice Anthony M. Kennedy offered an opposite take: Would it be an abuse of judicial power to leave provisions of the law in place without the mandate when there’s evidence they won’t work as Congress intended?

We’ll have to wait a few months for the answer, assuming that we even get one -- the court will take up the issue of severability only if it finds the individual mandate unconstitutional.

Scalia said the court has never before been asked to leave pieces of a law in place after striking down its heart. Opponents of the law certainly want the court to believe that the mandate is, indeed, the heart of “Obamacare.” In reality, though, the measure is designed to promote higher-quality and more efficient healthcare in addition to broader insurance coverage. The three efforts feed into each other, but they’re not mutually dependent.

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