With this understanding of the issue before the Court, the question is what the Court could decide. You would expect that with one key issue, there would be two possible rulings, but actually, the Court might issue any one of four possible rulings.
First, the Court could decide that Congress has the constitutional authority to require citizens to purchase insurance. Several arguments have been offered as the basis for such a ruling, including that Congress has the power to regulate interstate commerce, and financing the health industry (which constitutes 17% of our Gross National Product) is clearly interstate commerce. If the Court adopts this reasoning, then the law goes forward. Of course, another Congress at another time may decide to change it, but as we saw in the adoption of this law, it is not easy to pass an Act of Congress concerning health care.
Second, the Court could decide that Congress does not have the Constitutional authority pursuant to be able to compel citizens to buy a commercial product like insurance and impose a penalty if they refuse. The Court could rule that the rest of the law, all 2400 pages of it, goes forward, but it goes forward without an Individual Mandate.
Third, the Court could rule the Individual Mandate is unconstitutional, and that it is such a critical part of the entire law, that the whole Act must be invalidated. The difference between scenarios two and three is referred to as “severance.” That is, whether Congress drafted the law in a way that one section could be declared unconstitutional without affecting the rest of the law, or whether the one section is critical so the law cannot stand without it.
Fourth, the Court could announce that it won’t decide the case yet. This is unusual, but there is an argument that until a penalty is actually assessed against a citizen there is no harm that has been done, and the Court does not weigh in on what might be. (Note: most legal authorities do not consider this last possibility likely.)
The expansion of Medicaid eligibility could plan into the final decision, as well.
The case was argued months ago, so why does it take so long for the Court to announce its ruling, whatever that ruling might be? Well, the Court won’t simply announce a result in a “This side wins, 5-4” fashion. Rather, the Court will write a detailed Opinion, thoroughly explaining its ruling and the reasoning of the majority. If the Chief Justice is in the majority, he will assign the task of writing the Opinion to a Justice. If the Chief Justice is in the minority, the most senior Associate Justice in the majority will assign the task of writing. The assigned Justice writes an Opinion for the Court and the Opinion is then circulated. All justices can comment on it, and argue about it, until all the justices in the majority agree on the Opinion of the Court. Justices in the minority can write dissenting opinions, and generally do, with the same process. Given the complexity of the arguments, you can see why this can take a while.
As I write this, no one outside of the few people at the Court know what the Court is likely to do. All Justices take the confidentiality of the proceedings very seriously. Attorneys, political commentators, and law professors can speculate to their hearts’ content, but we all must wait together. In the end, it will come down to these nine experienced judges, each having a passionate reverence for the Constitution, for the rule of law, and for the role he or she plays in the history of this republic.
Sometimes, amidst all the shouting and passion, it’s worthwhile to remember that this is one heck of a thoughtful system.
About the Author:
Steve ErkenBrack currently serves as President and Chief Executive Officer of Rocky Mountain Health Plans. Prior to assuming this position, he served as Vice President of Legal and Government Affairs for the organization since 2002.
For more than twenty years, Mr. ErkenBrack worked as an attorney with an emphasis on health care, civil litigation, and government affairs. Mr. ErkenBrack maintained a private practice with offices in Grand Junction and Denver, and served six years as Mesa County’s elected District Attorney and four years as Colorado’s Chief Deputy Attorney General. He is admitted to practice before the United States Supreme Court.
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