“The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
“The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it ‘can’t be right’ that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, ‘then the statute’s gone.’ Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.”
“‘Democrats in the Congress have long-believed in judicial review,’ Pelosi said during a press briefing in the Capitol. ‘We respect the third branch of government and the role that they play under our Constitution, and that is a role to have the opportunity to review laws passed by Congress.
“‘This is part of our constitutional process, and we respect it,’ she added…
“Asked to predict the outcome, she said, ‘I have no idea –- none of us does.'”
“Healthcare interest groups spent tens of millions of dollars cutting deals with the Obama administration and Congress in 2009 and 2010. The Supreme Court may soon leave those deals in tatters — and saddle the healthcare industry with multi-billion dollar losses…
“Obama used the individual mandate as a selling point for the pharmaceutical industry, arguing that more insured individuals would translate into a larger market of customers. If the court severs the mandate, however, companies would still have to abide by the price controls while receiving little in the pledged market growth…
“Hospital interest groups agreed to multi-billion cuts — $10.6 billion in 2018 and 2019 in Disproportionate Share Hospital adjustment payments alone — after receiving assurances that the individual mandate would cut down on uninsured hospital stays, which cost hospitals $16 billion in 2008. These same groups, which spent nearly $30 million lobbying for the bill, would now have to endure the cuts while shouldering the financial burden of uninsured stays.”
“Some health care experts have suggested that there might be ways to replace the insurance mandate by using market incentives to encourage the uninsured to gain coverage.
“The government could, for instance, give consumers limited enrollment periods to buy insurance so they could not wait until they were ill. Or it could tell them that if they did not buy a policy during a defined period they also would not be eligible for benefits, like subsidized coverage.
“But supporters of the health care law contend that such measures would insure only a fraction of the 30 million estimated to gain coverage with the mandate in place.
“‘There are alternatives to the mandate, but none of them are considered as effective,’ said Neera Tanden, a former Obama aide who now heads the Center for American Progress.”
“If Democrats make little progress on alternatives, some purists might decide it’s best to just renew the case for a single-payer system in which all Americans receive health care paid for by the government.
“Sidney M. Wolfe, the director of the Health Research Group at Public Citizen, an advocacy group, has been pushing for government-run health care for decades…
“‘If this is what happens, it may offer more incentive to say let’s decide once and for all that health care is a right,’ Mr. Wolfe said. ‘It will certainly present an opportunity to a number of people.’
“But it’s not clear where the support for such a change would come from, especially after the bruising fight over Mr. Obama’s health care plan two years ago.”
“Conservatives want to change the system so markets can work their magic. But Republicans have been unclear about what they want to replace Obamacare with, exactly. Rep. Paul Ryan, the GOP’s resident wonk, gave a speech last September where, in addition to advocating block granting Medicaid to the states and transitioning Medicare to a premium support system, he endorsed ‘replacing the inefficient tax treatment of employer-provided healthcare with a portable, refundable tax credit that you can take with you from job to job, allowing you to hang onto your insurance even during those tough times when a job might be hard to find.’…
“But there might be a compromise out there. Look to Switzerland, where there is universal coverage despite no government health insurance programs. Consumers choose among private plans. And the nation spends 40% less than the U.S. on healthcare, as a share of GDP.
“Here’s Regina Herzlinger: ‘Republicans could enact Swiss-style universal coverage by enabling employees to cash out of their employer-sponsored health insurance. (Although many view employer-sponsored health insurance as a ‘free’ benefit, it is money that would otherwise be paid as income.) The substantial sums involved would command attention and gratitude: A 2006 cash out would have yielded $12,000—the average cost of employer-sponsored health insurance—thus raising the income of joint filers who earn less than $73,000 (90 percent of all filers) by at least 16 percent. Employees could remain in with an employer’s plan or use this new income to buy their own health insurance.'”
“Mr. Obama could announce he respects the court’s decision and pledge to fashion a bipartisan solution to provide access to affordable health-care insurance for all Americans. This would help his re-election by repositioning him back in the political center, as he was in 2008 when he ran television ads that said ‘both extremes’ — ‘government-run health care [and] higher taxes’ — ‘are wrong.’
“But he could instead lash out against the court’s majority — as he did in the Citizens United case upholding free speech for corporations — and insist on an even larger role in health care for Washington. Perhaps he would advocate a ‘public option’ where government competes with private and not-for-profit health-insurance companies, hospital consortiums and the like.
“The president has very little room to maneuver.”