Obamacare: In the Hands of the High Court

Oral arguments for President Obama’s sweeping healthcare reform law, dubbed “Obamacare,” were heard by the United States Supreme Court for three days, March 26 thru 28. The primary focus was the “individual mandate” which requires that Americans carry health insurance or pay a penalty. This blog has been following the healthcare challenge and debate over the last year. [See blog articles dated December 27, 2010, January 18, 2011, February 1, 2011, March 16, 2011, May 19, 2011, December 1, 2011, and January 10, 2012.]

Some media and legal analysts have attempted to predict how the justices will decide based on the justices’ lines of questioning and demeanor towards the government during the oral arguments. Many are scrutinizing Justice Anthony Kennedy’s questions because typically he is the swing vote in controversial Supreme Court decisions. Forecasting a justice’s vote or the outcome of the case based merely on the oral arguments is fruitless – oral argument is only a small facet of the appellate process, many other factors must be taken into account before an accurate prediction of the Court’s decision can be made.

A fair amount of the arguments last Wednesday were spent analyzing the “severability” of the law, which is “how much of the law ought to survive if the individual mandate is struck down.” See Atlanta Journal-Constitution article dated March 30, 2012. In one Court of Appeal’s opinion (the 11th Circuit), the court only struck down the “individual mandate” but kept the rest of the law intact. The Attorney Generals, including Rob McKenna of Washington, for the states challenging “Obamacare” argued that “none of the law can stand if the mandate falls, because it was the central component of the law: The other provisions don’t work without [t]he mandate, and Congress wouldn’t have passed the law without it.” Attorneys for the government in favor of “Obamacare” argued that “only a couple of other provisions – chiefly, the ones covering pre-existing conditions and ‘community rating,’ which holds that insurers can’t charge different premiums based on certain behaviors – should fall in that case because they would severely distort the insurance market absent the mandate, while the rest should stand.”

Regardless, we should know our fate regarding the future of healthcare in America within the next few weeks.

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