Cookies and the Affordable Care Act

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5 Responses

  1. This argument works both ways. The cookie for the left could be the MCP, not Medicaid.

  2. Matt Bodie says:

    Might there also be a “cookie” in terms of the severability? Don’t the Justices have to decide the extent to which the whole act goes down if the mandate does? The Court did something similar in the Sarbanes-Oxley case: they found PCAOB to be unconstitutional, but spared the rest of the Act.

  3. Jennifer Hendricks says:

    Matt —

    The problem with compromising on severability is that the mandate really is necessary to the whole model of reform. You can’t (1) try to base your entire health-care system (including entirely predictable routine care) on a for-profit insurance model, (2) prohibit exclusion of preexisting conditions, and (3) not require everyone to have insurance.

    So really, the challengers’ argument for severability is inconsistent with the primary argument against the mandate.


  4. Matt Bodie says:

    I agree. But if only the mandate is struck down, there is political disequilibrium, and both political parties would have the incentive (from the insurance companies) to rejigger the law. If the whole thing is struck down, likely nothing will happen, which is much worse for the pro-reform side.

  5. Andy Siegel says:

    I agree with both Jen and Matt. As I told the Washington state appellate judges at a conference today, this sets up perfectly for Chief Justice Roberts. He can keep the opinion on all four issues–firmly but politely striking down the mandate with the votes of the four conservatives, striking down between five and ten crucial sections of the statute that are realistically unseverable for the reasons Jen states with dissents from both sides, and reluctantly rejecting the Medicaid challenge while making a lot of bad law and perhaps provoking a dissent from the right for cover. If that is the result, he will have moved the law sharply to the right and accomplished his political aims while looking like a moderate consensus-builder.