What Didn’t Happen: A Non-Functioning Health Care System if the Entire Law Was Overruled

I teach in the summer, so I got to ditch my lesson plan for tonight and we spent an hour of class discussing the health care decision.  Most of my summer students here in DC work in federal agencies, so they all had interesting takes on what they had seen today.

Here’s what I haven’t seen in the coverage — what would have happened to the entire system of federal reimbursement and health care payments if the entire law had been struck down.  (Links welcome if others have covered this.)

The law was enacted in 2010, and billions of dollars have been spent in reliance on the law — systems changed, reimbursements realigned, and on and on.

The dissent clearly stated that they would have ruled null and void all the major and minor provisions in the 900-page bill. No severability.

If they had a fifth vote, what would our health care system have looked like tomorrow morning?  The same Congressional gridlock that couldn’t raise the debt ceiling would have been confronted with a truly mind-bending challenge — rebuild the payment system for 17% of the economy.  When no one had a draft bill ready.  When we were a million miles from consensus.  With no offsets to pay for it. During a close election campaign.

How do you think that would have worked out?  How much uncertainty would that have caused the economy?  What size dip in GDP would that have resulted in over the next couple of quarters?

So, a prediction based on pure speculation.  Historians at some point will assess what Roberts was thinking when he became the fifth vote to uphold. Lots of commentators have said that he wanted to maintain the court’s legitimacy and avoid a partisan bloodbath.  My prediction — he also wanted to avoid chaos in the health care system and the economy.

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4 Responses

  1. Frank Pasquale says:

    I agree, and that is a very important angle on the law almost entirely missing from the journalistic (or legal) treatment of the cases.

    It’s possible that the Democrats would entirely capitulate and pass this:
    http://www.forbes.com/sites/aroy/2012/04/30/how-george-w-bush-would-have-replaced-obamacare/

    But then you probably have at least 50 million still uninsured, and many more underinsured, for years.

  2. Shag from Brookline says:

    Query: Does Article III empower the Court to regulate commerce among the states, or merely the power to deregulate such commerce?

    As to Peter’s prediction, if such chaos resulted, would it have enhanced Obama and the Democrats politically this November? Was CJ Taney’s opinion in Dred Scott enough to cause dread, by Scott!, for Roberts? Take a peek at Chuck Krauthammer and George Will’s columns in today’s WaPo as they go through a huge pile of right-wing spin from which they hope an elephant will emerge – or did the metaphoric elephant create the pile?

  3. Shag from Brookline says:

    This should have been a Brown v. Board of Education moment for the Court, a unanimous decision, finally accepting the importance of healthcare for a civilized industrial nation. ACA isn’t perfect. There should be improvements down the road, hopefully in a bi-partisan manner. Healthcare for all is that important, close to being a right, as FDR had proposed in his Second Bill of Rights speech in 1944. Libertarians who got theirs perhaps could care less about others, which is another sign of careless libertarianism.

  4. Peter Swire says:

    In terms of needing improvements down the road, the budget and reconciliation process each year in the Senate will be the biggest must-pass moment that will shape the future of this bill. People who care about this issue may need to learn more about what can and cannot happen through reconciliation.

    Everything else usually requires 60 votes in the Senate.