With the Supreme Court likely to rule on the Affordable Care Act before the end of the month, here are eight ways the decision could come done. There are technically numerous ways and small deviations of how the Court could theoretically decide this case but these basic eight categories should cover all the likely, and even most of the unlikely, possible outcomes.
1) Whole law is constitutional – The Court could find the whole law its constitutional and it will go into effect as planned.
2) Whole law is unconstitutional – The court could decide that one or more provisions of the law (the individual mandate and/or the Medicaid expansion) are unconstitutional and the interdependence of those components to others parts of the law means the entire act must be thrown out. This is only a possibility because in an act of believable legislative malpractice Democrats didn’t include a standard severability clause in the law. This is a clause included in most big laws which states even if one provision is unconstitutional the whole law doesn’t need to be thrown out.
3) Court decides the court can’t rule yet – It is theoretically possible the Court could decide the individual mandate is a tax and that under law the Court can’t rule on the constitutionality of a tax until it has gone into effect. This would kick the issue of deciding the constitutionality of the mandate down the road until at least 2014. Based on the justices’ questions during oral arguments this seem extremely unlikely.
Beyond these three simple straightforward rulings things get much more complicated.
4) Only the individual mandate is struck down – The court could find the individual mandate is unconstitutional but is severable from the rest of the law. As a result, only the mandate would be struck down but all other provisions would remain in place.
5) Only the mandate, ban on pre-existing condition, and community ratings are thrown out – The Obama administration very strangely chose to make the difficult argument that the individual mandate is not completely severable from the whole law, only partly severable. They argued that the mandate can only not be severed from the ban on pre-existing conditions and requirement that insurers use community ratings to set premiums. The position of the Obama administration is that if the mandate is struck down, only these two provisions should be thrown out with it, but the rest of the law should be left intact.
If the court does rule this way, the Obama team deserves a decent amount of blame for Americans losing this protection for pre-existing conditions because they chose to make this strange and idiotic severability argument.
6) The Court rules against the mandate and randomly picks what is and is not severable – The Court could rule the mandate is unconstitutional using its own judgement to decide what is and is not severable. I can not even begin to guess what provisions they would choose, but it would probably be similar to, although more expansive than, the Obama administration’s stated opinion on what is not severable from the mandate.
7) Court could uphold the mandate but declare the Medicaid expansion is unconstitutionally coercive to the states, which is also severable – While this is unlikely in theory, the Court could rule that the individual mandate is constitutional but also rule that the Medicaid expansion is unconstitutionally coercive to the states. The Court could throw out just the provisions related to the Medicaid expansion, but leave the rest of the law in place. This would create potentially huge policy problems with people too well off for their state Medicaid programs, but too poor for exchange subsidies, getting no insurance. The Medicaid expansion is responsible for most of the increase in insurance coverage.
8) Court rules against the mandate and the Medicaid expansion but agrees some elements are still severable – This is another unlikely but possible outcome. The Court rules that both the individual mandate and the Medicaid expansion are unconstitutional but still conclude that some provisions are severable from those components.
For example, it is easy to make the case that all the provisions that went into effect before 2014, when the the mandate or the medicaid expansion is set to start, are inherently not dependent on those components. For example, the Court could decide to allow people under the age of 26 to stay on their parents’ insurance plans or that new rules about nutritional labeling at restaurants is severable, as is the mandate and Medicaid expansion.
A ruling like this would significantly gut the law; and depending on what provisions were left, would likely result in relatively little increase in insurance coverage.