ACA's Fate Rests with Court

Justice Ginsburg stepped in to clarify the point. "I thought a major, major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do. They will get services that they can't afford at the point when they need them, and the result is that everybody else's premiums get raised. So, it's not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way."

Barker expects the Supreme Court to rule that it has jurisdiction over the case and to uphold the Medicaid expansion. He believes the individual mandate will be ruled unconstitutional and that the mandate will be ruled either completely severable or the severability will be limited to insurance rating reform.

If the individual mandate is ruled unconstitutional, Barker says there are alternatives to consider, including taxing the uninsured and limiting health insurance enrollment periods for the individual market.

The debate over severability was equally troubling for the administration. In answering a question from Justice Ginsburg about salvaging portions of PPACA if the individual mandate is rules unconstitutional, Paul Clement, who argued that the PPACA should be thrown out if the individual mandate is eliminated, explained that "the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this act. And then if you look at how they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid. If you follow that through what you end up with at the end of that process is just sort of a hollow shell."

View All Comments Make a Comment

Comments are moderated. Please be patient.