The Fate of Obamacare

| Tue Nov. 15, 2011 10:57 AM PST

The Supreme Court agreed yesterday to decide if Obamacare is constitutional, and in particular, whether the individual mandate is constitutional. One senator thinks it's all a big nothingburger:

Sen. Sheldon Whitehouse (D-R.I.), a former state attorney general who sits on the Judiciary Committee, said that the individual mandate might very well fall, but that the law’s defenders have gotten “overexcited” about it.

....“So the mandate falls? Big deal,” Whitehouse said. “I think a family able to keep their sick kids on insurance even though they have pre-existing conditions, kids out of college able to stay on their parents’ policies while they look for that first job with healthcare — things like that are what will stick. Irrespective of what the Supreme Court says, that’s the things people really care about and are counting on.”

In a way, he's right. If the mandate falls but the rest of the law remains intact, what happens? Here's Scenario #1: In the 2012 election, Republicans win the presidency and big majorities in both houses of Congress, which gives them the power to repeal the whole thing. But if that's the case, then who cares what the Supreme Court does? The whole thing is going to get repealed anyway.

But Scenario #2 is more likely: Republicans don't win such a sweeping victory, which means that Democrats will be able to prevent them from repealing the rest of the bill, either by veto or by filibuster. Then what? Democrats will want to replace the mandate with something else that requires everyone to buy health insurance — maybe something tax based — but Republicans will kill it. So both sides will be stymied.

So then what happens? Answer: insurance companies go ballistic. If they're required to insure all comers at the same price but healthy people aren't required to buy insurance, then prices spiral as sick people sign up for coverage and healthy people drop out. Eventually this death spiral will lead — as the name implies — to death for insurance companies, and at that point it becomes a staredown. Something has to be done, and either Democrats or Republicans will blink first. It may seem like a no-brainer that Democrats will be the ones to cave if this happens, but that's not clear. All it takes is 41 holdouts to filibuster the GOP, and as the insurance industry gets ever more desperate they'll start pushing hard on their Republican pals.

Obviously the outcome is unclear. But depending on where public opinion falls — and requiring insurance companies to insure everyone is pretty popular — Congress might end up reinstating the mandate in some form or another. It's genuinely a crapshoot.

But will it come to that? I just emailed a friend that I'm too much of a coward to publicly predict what I think the Supreme Court will do, but admitting that privately has galvanized me into action. So here it is: I think they'll uphold the individual mandate 7-2, with Scalia and Roberts joining the majority. Does that sound crazy? Yes it does! But I've never thought this was a Commerce Clause case. There's no question that, in general, Congress has the power to regulate healthcare under the Commerce Clause. The real question is whether the Necessary and Proper Clause allows them to legislate an individual mandate as a reasonable way of implementing their regulatory goals. In the end, I think the government will be able to persuade both Scalia and Roberts that the individual mandate falls well within the scope of McCullough v. Maryland: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." The individual mandate may not be the only way to accomplish Congress's goals, but I think the facts of the case provide an extremely strong basis for concluding that it's appropriate and "plainly adapted" to those goals.

So there you have it. I'm now on record with my first Supreme Court prediction, one with a strong chance of turning out to be idiotic. But I'm sticking with it for now. Believe it or not, I think that the case for constitutionality is clear enough that, in the end, both Roberts and Scalia will do the right thing even though it's not ideologically what they'd prefer. Feel free to mock me in comments.

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