Finally, today the Supreme Court will meet to discuss how to begin the debate on health reform. I am quite certain that they already know their individual views on it and most certainly those views will be based on their own partisan politics.
Health insurance brokers like me have been waiting over a year now to begin this debate and many of us are on the edge of our seats as we wait to find out what the future (if any) holds for our battered industry. The main sticking point of course is the individual mandate that requires all Americans to obtain health insurance coverage.
There are currently four pending cases from lower courts that challenge the mandate and the courts will similarly decide if other aspects of the law are Constitutional. The private conference is scheduled for today, Thursday November 10, 2011. A decision will be likely be released on Monday but it could come earlier, even this afternoon.
Once they decide to hear the case (likely), by springtime arguments would begin and with any luck June will bring a ruling. And then if we are lucky, they will also have time to compliment my hair.
Of the four lawsuits, the lawsuit brought by 26 states is likely to get the nod based on the fact that the federal government has been reviewing that one and it has the most prominent legal questions.
Other questionable aspects of the law that the court will likely review include the Medicaid expansion and the new employer requirements. The main other issue is called the Anti-Injunction Act which itself bars reviewing the individual mandate until the law goes into effect in 2014 as obviously no one has anything to complain about yet until the “damage occurs” so to speak.
It has been a precedent until now that Americans must file a tax before they can challenge it in court — applies to the health law’s penalties. At the end of the day though there has been much dissension on this issue from other courts.
The Last Big Question
Will the justices take up the severability question separately? This is a question of assuming the individual mandate is ruled against, does anything else go with it? Maybe the entire act becomes illegal. The Obama people will likely want to spend considerable time arguing this as a hedge in case one part is struck down as in the baby and the bathwater. The current Obama argument specifies that only two insurance reforms can be combined under the mandate — requirements that insurers accept all applicants even if they have pre-existing conditions and apply so-called community rates. Obviously everyone else wants the whole bathtub and the house thrown away with the baby.
Will one of the justices recuse?
Advocacy groups have tried to put public pressure on Justices Elena Kagan and Clarence Thomas to remove themselves from the case. Opponents of the law argue Kagan should recuse because she may have been involved in the strategy against the lawsuits while she worked in the Obama administration. Supporters of the law argue Thomas has a conflict because his wife is working to defeat the law. Neither have indicated yet that they would recuse themselves from deciding the case — and neither is expected to. But it would be noteworthy if they didn’t participate in this week’s discussion on how to move ahead.
