PPACA and The US Supreme Court

Next week will probably bring the Supreme Court decision on the Patient Protection and Affordable Care Act. At the time the court accepted the case, my somewhat informed prediction was that their decision would be 7-2 in favor. Lest you doubt my sanity, there were better informed people who predicted 8-1 in favor. My prediction may yet be vindicated if Chief Justice John Roberts takes the view that a partisan decision against the PPACA would reflect poorly on the court's reputation and his own.


The bulk of the media have reported the decision as if they were covering a horse race and made speculative inferences from the oral arguments. This type of coverage has, IMHO, affected the national polls and brought forth the question of how insulated the court's decision-making process might be from the partisan divide which is the national news topic.


Polls and pundits currently predict that the court will break away from past legal decisions supporting the individual mandate as being within the range of powers granted to the federal government, declaring only that part of the PPACA an unconstitutional extension of government power. If the media and poll majorities have correctly predicted this outcome, what of it? The individual mandate as written in the PPACA is unenforceable.


The comparison between Massachusetts' experience under Governor Romney and states such as my native Texas is made by Paul Starr in The New Republic.

The one state with a mandate hardly offers much guidance. Massachusetts now has near-universal coverage, but, even before its recent reforms, only about 10 percent of its population was uninsured. Romney’s program passed with overwhelming support from both Republicans and Democrats in the state legislature. Business, labor, and the health care industry all backed the law. And, when the mandate went into effect, the agency in charge of the program ran TV ads with stars from the Boston Red Sox saying it was time to get health insurance. In some states today, by contrast, the uninsured represent 20 percent or more of the population, and, instead of elite-led support for the health care legislation, there is elite-led opposition. Under those conditions, open defiance of the mandate will be respectable, and compliance with the mandate may be much lower than the official estimates assume.

Sarah Kliff made the comparison to Washington state's repeal of an insurance mandate in two Washington Post articles. A graphic representation of what happened to insurance companies in Washington state selling individual policies is presented by Aaron Carroll of The Incidental Economist.

Experimentation at the state level is one possible answer to a Supreme Court finding that the individual mandate is an unconstitutional extension of the power of the federal government. Charles Goozner presents options in his post at GoozNews, Why Reform Will Survive Mandate’s Fall.