While the Supreme Court wrestles with how to untangle the constitutional complexities of the Affordable Care Act, the politics are becoming crystal clear -- and they may ultimately benefit those of us who would like to see affordable, high-quality health care for all Americans.
As we have learned from the arguments in the case, the central issue is the individual mandate, which the opponents argue exceeds Congress's power under the Commerce Clause. While most of the Court's cases since the early 19th century would support the constitutionality of the act, the conservative shift in the Court suggests that the mandate could be struck down.
The question then becomes whether the mandate is severable from the rest of the law. Common sense says that it is not, since there would be no way to pay for health care reforms without everyone participating in the health insurance pool. It would seem unlikely that the Court would strike down the entire ACA, but even if it finds that the mandate is severable, it would likely doom the law in its present form.
If the Court did make the mandate severable, then the new Congress would probably take up the issue after the election in an effort to save the law minus the mandate. If the Republicans maintain control of the House, then that would be an effort in futility, since they have vowed to repeal the law in its entirety and would have no reason to try to salvage it.
This is where the politics gets interesting. If the Court's decision makes the law unworkable, then Americans will be faced with a stark choice. If they vote in the Republicans, then health care reform is doomed -- specifically all the provisions that have already gone into effect, including mandatory coverage for existing conditions and insurance for children up to 26 under their parents' policy. If they vote for Democrats and the House goes back to Democratic control, then health care reform has a decent chance of passing.
The question then becomes what kind of health care reform do we want? With a Democratic House, there are a lot more choices. So why go back to a clunky and flawed act that may have constitutional infirmities? Why not institute some form of universal health care that even the opponents admit does not have the constitutional problems that exist under the current act? The Republicans have already conceded that they will do nothing to promote health care reform, so why not call their bluff and go after real health care reform in the shape of universal coverage?
Presented with a choice of universal health care coverage -- essentially extending programs like Medicare that already work and are popular -- and doing nothing, American voters seem likely to support a program that tested and proven, rather than wander back into the wilderness of half-measures and partisan bickering. A Supreme Court decision against the mandate -- if not the entirety of the ACA -- may prove to be a blessing in disguise in achieving comprehensive medical care for all Americans.
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