The immediate chaos
In all likelihood, the decision will come down to two questions: Is the law’s individual mandate constitutional; and, if not, how much of the law should the justices strike down?
It’s entirely possible that those two issues will be resolved with different majorities. For example, Justice Anthony Kennedy could side with the conservative justices for a 5-4 decision saying the mandate is unconstitutional, then side with the liberals to say, also by a 5-4 decision, that the entire law shouldn’t be thrown out.
The most complicated scenario might be a plurality decision. If five justices can’t come to an agreement on how much of the law to strike, so there’s no majority opinion on that question, what actually happens?
Randy Barnett, a Georgetown University law professor who has worked on the case against the mandate, said it probably won’t come to that — though anything is possible.
“I think they’re going to rise to the occasion and issue a clean decision,” he said. “I would have a greater fear of an outright loss than of a complicated win.”
The policy chaos
The Affordable Care Act will, if implemented, cover about 30 million uninsured Americans. If the court strikes the whole law, those people will remain uninsured.
Although the bulk of the coverage expansion hasn’t happened yet, some policies are already in place.
Rep. Tom Price (R-Ga.) told The Hill he wouldn’t expect to see a big push to take back money that was spent or agreements that were made during the brief window when healthcare reform was the law of the land. But other stakeholders are anticipating a wave of lawsuits trying to reclaim the billions of dollars that have already been spent on implementation.
What about the people enrolled in new high-risk pools created by the healthcare law? They’re people with pre-existing conditions, most of whom have been denied insurance when they tried to buy it. Do those people lose their coverage at 10:30 a.m., as soon as the court rules?
Probably the biggest policy nightmare would come from a decision striking down only the mandate. All sides agree that other popular provisions aren’t workable without the coverage requirement. So if the court doesn’t throw out the entire law, and Republicans can’t fully repeal it after November, Congress might have to actually work together and solve a big problem.
The White House is reportedly preparing a series of executive orders in case the court strikes some or all of the law, and policy experts have tossed around possible replacements for the mandate. But for now, no one seems to have a concrete path forward on healthcare policy.
The political chaos
When the Supreme Court issued its ruling earlier this week on Arizona’s immigration law, reporters and pundits had a hard time declaring a political winner. Figuring out who won and who lost could be even harder with the complicated healthcare decision.
Even once the basic decision on the mandate and severability are clear, the tenor and reasoning of the opinion will be important. Both sides of the case say they’re in line with decades of well-established precedent and that a decision for the other side could upend the balance of federal power.
If the court strikes down all or part of the law, Democrats will ask whether other applications of Congress’ Commerce Clause power are now on the chopping block. If the court upholds the law, its critics will question whether there can be any limit to federal mandates.
“Are the limits a fig leaf, or are they real? That will take some parsing,” Barnett said.
And if the law falls, it will likely be decades before policymakers wade back into the healthcare issue.