The Remaining Health Care Arguments: Fewer Fireworks, Possibly Bigger Consequences

March 28, 2012 2:02 a.m.

After Tuesday’s explosive arguments over the constitutionality of President Obama’s health care law threw conventional wisdom about the Supreme Court’s likeliest course of action out the window, it would be easy to conclude that highest-stakes issue was behind us.

It’s not.On Wednesday the court will weigh two very different, but extremely consequential issues. One will help determine how much of the health care law will stand if the court rules the individual mandate unconstitutional. The other, which has received far less attention, has the potential to upend decades of precedent that underlie scores of massive federal programs, from health care to transportation to civil rights. An adverse ruling by the court on either issue would be in many ways far more consequential for both policy and jurisprudence than a narrow ruling against the individual mandate.

These issues have flown under the medias radar for a few reasons. First, the mandate has been the most controversial piece of health care reform since Congress began debating it in early 2009. It’s the focal point of both the legal challenges to and the public outcry against the law. Second, the consequences of an unexpected court ruling would, in both cases, be exceptionally far-reaching, both for the court, Congress and the public. As such, most experts find it unthinkable that the court’s conservatives will decide to reach under the biggest fault lines in federalism and set off a constitutional earthquake.

First: severability.

If the court rules the individual mandate unconstitutional it will have greater-than-usual latitude to determine how much of the rest of the law — if any — can stand. The court as invited an outside advocate to argue that the entire rest of the law can stand, even if the mandate must go. This was the same conclusion the 11th Circuit Court of Appeals reached, when its three-judge panel ruled the mandate unconstitutional.

The administration itself will argue that if the mandate falls, so too must provisions requiring insurance companies to provide coverage to all consumers, without bias to consumers’ pre-existing medical conditions. This follows a common policy rationale, but it would also vastly diminish President Obama’s signature legislative achievement.

The challengers, however, argue that if the mandate falls, the rest of the law must go as well. It’s a stretch of an argument, and so far only one trial court judge has agreed. But if the five conservative justices are somehow swayed, it would wipe “Obamacare” off the books. It would also ignite a massive flame war between the parties over judicial overreach and create a historically controversial legacy for the Roberts court.

But they could actually do more damage than that.

The plaintiffs are also challenging the law’s expansion of Medicaid, arguing that the new requirements unfairly coerce states. The Medicaid program is optional, but entrenched, and by imposing dramatic new requirements on federal Medicaid funds, Congress is giving the states a loaded choice. If the five conservative justices agree, it would call scores of similar programs that states operate in conjunction with money and strings from the federal government — or at least make it very difficult for Congress to revisit those strings in the future.

The high stakes are precisely why most court watchers doubt a majority will vote to strike the Medicaid expansion alone. But as Mother Jones blogger Kevin Drum notes, you’ll get a sense of just how eager the conservative justices are to roll back the existing federalist status quo by watching how many of them are comfortable with the idea that this violates the Constitution. If only for that reason, tomorrow’s arguments will be worth watching.

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