More expert information/speculation on SCOTUS and the ACA

What follows is some of the more interesting stuff I've been reading over the last several hours on how the SCOTUS decision on the ACA might play out, and when we might get this historic decision.

And yes, to those who don't like speculation, you can stop here--everyone else, continue reading.

When might the decision be announced?

Avik Roy writing in Forbes has this to say. Keep in mind this Avik Roy fellow is a card carrying Republican.

June 25 remains the most likely date for the opinon

Brad Joondeph of the ACA Litigation Blog has published a comprehensive breakdown of when the Supreme Court may issue its opinion in the case. “Setting aside the ACA cases,” he notes, “the Court essentially has twelve other decisions to hand down.” In addition, “in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.” Worth also noting, he writes, “the Court almost never issues more than four or five opinions on the same day.”

Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.

“If the Court has handed down virtually all of the twelve [non-Obamacare] opinions…by next Thursday, then June 25 would likely be the last day of the term,” Joondeph says. “But if the Court only hands down, say, five or six opinions next week, it will need at least two days the following week to hand down what remains.” That means that the Court will probably reserve either June 27 or June 28 to hand down the last set of rulings.

How might Kennedy vote?  (again from Roy)

Roy is writing that his sources say that SCOTUS is still arguing about severability--whether if the mandate falls does the entire law go down?

My sources (which I freely admit to be third-hand) suggest that Kennedy will side with the conservatives and strike down the Affordable Care Act’s requirement that nearly every American must buy health insurance. The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

Jonathan Cohn in the New Republic

When the decision does come, don’t be surprised if the outcome and implications are not instantly clear. The Court could issue multiple decisions, with different justices ruling to uphold or strike down different parts of the law. When the Supreme Court decided Bush v. Gore in 2000, analysts needed several minutes to figure out both what the court was ruling and what that meant for the presidential election. The same thing could happen this time.

Uphold the entire law: If you believe in health care reform, as I do, this is obviously the best outcome. And it remains a very credible one. Remember, two very conservative judges at the appellate level found the law to be constitutional, despite tough questioning during oral arguments.

Strike the mandate, keep everything else, including the penalty: This would be a moral victory for the critics and it would, quite possibly, limit federal power for generations to come. But it would probably do very little damage to the law itself. The financial incentives for obtaining and declining insurance would remain in place. If Justices Roberts and Kennedy want to have their cake and eat it too—to issue a major ruling with long-lasting doctrinal effects, but in a way that doesn't look like a naked usurpation of legislative authority—this is the way to do it.

Strike the mandate and the penalty, keep everything else. I keep reading that this would be equivalent to gutting the law. That is very, very wrong. Such a ruling would significantly weaken the law: Many fewer people would get insurance and, at least initially, and individual insurance premiums would be higher. But middle-class people buying coverage on their own would basically pay the same as they would if the mandate stayed in place, because of the way the subsidies work. (People who get coverage through employers or through Medicaid would also fare the same.) The law would still bring coverage to between 10 and 20 million people, according to the projections, and the deficit would actually end up slightly lower. In the future, state and federal lawmakers could bolster the law by thinking up alternatives to the mandate, or versions designed to meet the Supreme Court’s legal criteria.

Strike the mandate, the penalty, the insurance reforms, but keep everything else. This would be a lot more devastating. The dysfunctional insurance market would remain. Insurers could still charge higher premiums, or deny coverage altogether, to people who represent medical risks. One question is what happens to the law’s subsidies: If the Court let those stand, people could still be eligible for them, although it’s not clear (to me) how that would work if the rest of the insurance reforms stay in place. On the bright side, the expansion of Medicaid would effectively guarantee insurance to everybody making less than 133 percent of the poverty line. We'd have universal coverage for the very poor and for the old (thanks to Medicare). The non-elderly middle class would be the ones left out.

Strike the whole law—in other words, keep nothing. This is as bad as it sounds. Thirty million people lose health insurance they were supposed to get. People who would have had insurance anyway lose consumer protections and guarantees of minimum benefits. The deficit goes up, according to projections. Incentives to make the health care system safer and more efficient disappear.

This list is not exhaustive. The Court could decide that it can't decide the case until the law is in place and somebody can allege actual harm. The Court could also make a ruling on one part of the law and then "remand" the case to a lower court to sort out the rest. Those outcomes, and other permutations I've heard, seem far less likely, at least according to the experts I've consulted. But this is the Supreme Court. The justices can do pretty much what they want.

And I'll leave you with this also in the New Republic.

People who would benefit have little idea what they may lose if the Supreme Court strikes down health law. These people are the lowest of low information voters.  They are simply fighting to survive day-in-and-day-out.

SEWANEE, Tenn. - As Robin Layman, a mother of two who has major health troubles but no insurance, arrived at a free clinic here, she had a big personal stake in the Supreme Court's imminent decision on the new national health care law.

Not that she realized that. "What new law?" she said. "I've not heard anything about that."

 . . .Layman was hardly the only patient unaware that the law aims to help people like her, by expanding health insurance beginning in 2014. And this gets to the heart of the political dilemma for Democrats: Despite spending tremendous political capital to pass the law, the party is unlikely to win many votes from the law's future beneficiaries, most of whom live in Republican-dominated states in the South and West. In fact, many at the clinic said they don't vote at all.

This is tragedy heaped on tragedy.  Many, perhaps even most, of those desperately in need of healthcare and the Medicaid expansion piece of the ACA--literally don't know that the law exists.