The court could knock out the mandate and also strip out the pre-existing condition coverage, since it wouldn’t work anyway once the mandate is gone. That’s what the Obama administration says the court should do if it gets rid of the mandate.
Either way, for Obama’s team, a split verdict would be the worst of all worlds: a phantom law on the books that energizes tea party Republicans who want it dead.
The fact that it would be mostly dead — between the policy hurdles when the mandate disappears and the political support the law loses if the Supreme Court rules against any piece of it — would offer Obama little solace. His policy team would be forced to find some way to preserve it. And that would keep the endless, enervating debate alive, much to the delight of the GOP.
The challenge of redesigning a workable system would fall on Health and Human Services Secretary Kathleen Sebelius and other top administration officials, who would prefer not to be burdened with an excruciating, campaign-year rewrite likely to raise a lot of messy questions — while keeping health care in the news until November.
“We still remain confident and optimistic that this change within the law was well within the purview of Congress,” Sebelius said at a women’s health town hall Thursday at the White House. “Having said that, we’ll be ready for court contingencies.”
But a mixed decision is the toughest to game out. That’s why Obama’s lawyers argued that the insurance industry reforms would wobble and fall if the mandate, which provides the cash for everything else, is overturned.