12:30 pm EDT - 1:00 pm EDT

Past Event

Web Chat: Health Care and the Supreme Court

Wednesday, June 20, 2012

12:30 pm - 1:00 pm EDT

The Brookings Institution
Online Only

1775 Massachusetts Ave., NW
Washington, DC

President Obama’s controversial health care reform law has sparked numerous battles in the lower courts with state challenges to the constitutionality of the individual mandate. Following the lively oral arguments in March, the Supreme Court will decide the fate of the landmark Affordable Care Act before the term concludes at the end of June.

Does the current law infringe on individual and state rights? How will the Supreme Court’s decision impact the future of health care in the U.S.? On June 20, Brookings expert Henry Aaron took your questions and comments in a live web chat moderated by Vivyan Tran of POLITICO.

12:30 Vivyan Tran: Welcome everyone, let’s get started!

12:30 Comment From Kris:
If the healthcare law is struck down, what are the chances of making progress on healthcare reform in a new administration?

12:31 Henry Aaron: Not much, in my view. The president would see that two previous presidents (Clinton and Obama) had suffered major political losses trying to reform health care and would be unlikely to propose anything bold

12:31 Comment From Benjamin:
What is the legal argument against the individual mandate? On what basis is it considered unconstitutional?

12:33 Henry Aaron: Congress has rarely, if ever, required people to buy something. It has, however, the power under legal precedent since the 1930s to do so. For the court to decide that Congress cannot regulate insurance by requiring participation of nearly everyone, it would have to go back to legal doctrine that prevailed before The New Deal.

12:33 Comment From Darnell:
Is there any way to predict the Supreme Court’s decision? Do we know which justices will most likely vote for or against the law’s constitutionality?

12:34 Henry Aaron: It is easy to predict the outcome…everyone is doing it. They just don’t agree!! It is nearly certain that four justices will vote to sustain the law and that three will vote to invalidate at least some parts of the law. The common view is that the outcome is up to Justices Kennedy and Roberts.

12:34 Comment From Alexandra:
What if the individual mandate is struck down? Will remaining parts of the law stay in effect?

12:35 Henry Aaron: That is up to the Court. It could preserve the whole bill, none of it, or parts of it. All three positions were argued orally and briefed to the Court.

12:35 Comment From Robert:
What qualifies something as “interstate commerce” and does the purchasing of health insurance fit that definition?

12:38 Henry Aaron: Most everything has some effect on interstate commerce. In one famous decision, the Court ruled that a farmer who grew wheat for his own use was doing something that influenced interstate commerce because if he hadn’t grown the wheat, he would have had to buy it in the market, which is definitely interstate. The interstate character of insurance is not a close question. The issue in this case is whether the failure to buy insurance affects interstate commerce. As an economist, I don’t think that is a close question…it definitely does affect the price of insurance and, hence, interstate commerce.

12:38 Comment From Edward:
When is the Supreme Court expected to rule on health care reform. Do you expect we will know its fate before the end of the week?

12:38 Henry Aaron: They are expected to rule before the adjourn for the summer at the end of this month. The decision could come at any time. No one knows for sure.

12:38 Comment From Brad:
The government is arguing that Congress can require citizens to purchase insurance. What is the argument against this?

12:39 Henry Aaron: The argument is that doing nothing cannot be defined as influencing commerce. As I indicated in a previous answer, I think that argument is a bad one, but, clearly, the Court is considering it quite seriously.

12:40 Comment From Nina:
In your opinion, what decision from the Supreme Court would represent the best case scenario for our healthcare system?

12:41 Henry Aaron: The best outcome, in my view, would be to proceed with the Affordable Care Act. It is not perfect legislation and we will encounter unexpected consquences. Changes will need to be made. But if we go back to square one, we will find it difficult or impossible to make the bold changes necessary to extend coverage to the uninsured and to change the payment and delivery systems to rein in the growth of spending.

12:41 Comment From Guest:
Considering the low public support to the affordable care act, some people say that it is better for Obama when the law is determined unconstitutional. Would you agree with those who say so?

12:43 Henry Aaron: Political analysts disagree. Much depends on the wording of the Court’s decision. My own view is that a loss is a loss and that it would be better for Obama to be sustained. One of my colleagues counters: Winners celebrate; losers organize. If that is true, then my intuition is wrong.

12:43 Comment From Guest:
Recently several major insurers announced they will retain portions of the ACA, regardless of the Court’s decision. What affect do you think these announcements have on the political arguments surrounding health reform?

12:44 Henry Aaron: Not a whole lot of effect. The decisions of the insurers were heartening. But they do not go to the heart of the problems with narrowing coverage or rising costs.

12:44 Comment From Samantha:
If the Supreme Court upholds the law, could a President Romney really repeal it?

12:46 Henry Aaron: He can try. Congress might respond, but if the Democrats wanted to block outright repeal and enough Senators wanted to stop repeal, then the bill would remain on the books. If elected president, Romney could refuse to take the administrative steps necessary to implement it.

12:46 Comment From Bill in Va.:
What benefits that have already kicked in would be forfeit if the law is struck down? For example, would children under 26 suddenly lose coverage? This seems like a major political liability for the GOP.

12:49 Henry Aaron: The extension of coverage under parents’ insurance of students up to age 26 has already kicked in. So has the process of beginning to close the ‘donut hole’ in the drug benefit. A large number of administrative steps have already been taken, such as soliciting bids to form accountable care organizations and to carry out research on comparative effectiveness. All of these measures could be stopped. If people understood the Affordable Care Act better than they appear to do, then I would agree that repeal would be a major liability. But the level of information seems quite low.

12:49 Comment From Doyle:
If the individual mandate is struck down, is it in everyone’s best interest for Congress to strip away the rest of the law? If not, then why?

12:50 Henry Aaron: Much of the bill is quite independent of the individual mandate. The government argued that if the mandate is struck down, then only two other provisions (mandatory issue and ‘rate bands’) should be struck down.

12:50 Comment From Daniel:
Can you discuss the implications of the severability issue(s). My understanding is that the law does not have an explicit severability clause, nor does it have to in order to implements parts, but not the whole law.

12:51 Henry Aaron: The law does not have a severability clause. That means that if the Court strikes down the mandate, it can decide to retain some, all, or none of the rest of the law.

12:51 Comment From Guest from California:
Romney is saying he will “repeal and replace” Obamacare. Assuming the law’s major provisions are upheld by the Court, what do we know about Romney’s plans for health care policy?

12:53 Henry Aaron: Not much. His statements have been remarkably vague. He says he would authorize cross state sales of insurance, seek repeal of the ACA, and not a great deal more. I think that there are defnesible ‘conservative’ reforms of the health care system that are serious proposals, even if I may not agree with all of them. But so far Romney has not put forward a well-defined program.

12:53 Comment From matthew:
2 people are in a car wreck. One has insurance and the other does not. When they both get to the hospital, both are treated the same. Doesn’t this mean that everyone has insurance in a way and that all the government is asking is everyone to pay for the service they already have.

12:55 Henry Aaron: I think that the scenario you describe indicates why the failure to buy insurance does influence interstate commerce. But there is another way out of this problem, and Justice Scalia actually suggested it in oral argument…namely, get rid of the requirement that hospitals treat the uninsured in the case you describe. [I am not making that up!]

12:55 Comment From Charles:
Historically, have Republicans always loathed the individual mandate as they do today?

12:56 Henry Aaron: The individual mandate is a Republican idea, originated at the Heritage Foundation and embodied in a plan put forward by Senator Chafee in opposition to the Clinton health plan.

12:56 Comment From Marco:
If the mandate is stricken down on a national level, do you think state gov. would try to pass it themselves as a state’s right, and if so, will there be any ground if the act is taken down?

12:57 Henry Aaron: States have the power to mandate coverage. How many would do so is open to question. One–Massachusetts–has done so, but they had some considerable financial help under special arrangements. I do think that interest in promoting reform at the state level, which existed before president Obama took office, could well return.

12:58 Comment From Guest:
If the SCOTUS strikes down the mandate, do you think we’ll see a lawsuit against MA’s health system? Will we see an effect on any laws beyond health care?

12:58 Henry Aaron: No. That is up to Massachusetts

12:59 Comment From Steve D.:
Would you be surprised if Chief Justice Roberts ended up being the swing vote instead of Justice Kennedy? Justice Kennedy during oral arguments seemed very weary of how far reaching a precedent upholding the ACA would be while CJ Roberts asked even handed questions of both sides during oral arguments. Roberts has what he wants his legacy to be to consider as well and he could narrow a ruling in favor of the ACA to the facts of the case which is an approach he often seems to prefer.

12:59 Henry Aaron: I would be surprised if Roberts was not in the majority, which is slightly different from what you asked.

12:59 Comment From Tom:
How successful has Masachusetts been at curtailing costs through its new healthcare policy? If the ACA is struck down, can we expect to see more states adopting their own policies, perhaps with an individual mandate?

1:00 Henry Aaron: So far, not very. But they are working on that problem now and expectations for significant reforms are quite high.
1:00 Vivyan Tran: Thanks everyone. See you next week!