Monday, March 19, 2012

The Constitutionality of the Affordable Care Act: From Twitter to the Supremes

In a hyperconnected fit of participatory democracy, the White House's Deputy Chief of Staff Nancy-Ann DeParle hosted a Twitter health reform Q and A under the hashtag "WHChat." "Tweeps" poised questions using 140 characters or less and Nancy responded in 140 characters or less. The sanitized White house version extolling the virtues and constitutionality of the Affordable Care Act (ACA) is here, but if you look at what actually happened in Twitter, most questions ranged from rhetorical to outright obnoxious. That being said, there were some deliciously irreverent flamers like:

#WHChat Give me a motorcycle helmet! I could be hospitalized if I don't get one for free

#WHChat My Best Buy extended cell phone warranty won't cover my wife's birth control. Why does Best Buy hate women

#WHChat Can you look at this mole and let me know what you think? Oh, not those kind of questions

#WHChat what's the official twitter hash tag for his "take over" executive order?

If all this Twittering has prompted a renewed interest in the upcoming SCOTUS arguments next week on the constitutionality of the ACA, you may want to check out this article examining the merits and the "severability" of the individual mandate. If the mandate is separated from the Court, it's possible that the ACA will be ruled constitutional, but the mandate itself will be struck down.

Drs. Sessions and Detsky note that the Court has historically tilted in favor of preserving as much legislation as possible. That makes it more likely that it will consider the Affordable Care Act separately from its mandate provisions.

If that's the case, the Administration will have a difficult time arguing that the ACA will collapse without it. If the mandate is struck down, insurers could still impose open enrollment windows or waiting periods (which would lessen the phenomenon of persons only buying insurance when they discover they are ill). In addition, the combinations of subsidies, employer penalties, Medicaid expansion and the exchanges make it much easier for consumers to buy insurance as intended.  When these are combined with weak penalties (signalling a belief that the law didn't really need a "mandate") and the pretzel legal logic of "partial severability," it would appear that the Supremes' threshold to "severing" the mandate and declaring it unconstitutional is quite low.

The DMCB shared a delicious California red with a smart lawyer last week and heard an interesting prediction: given the law's historical importance, the Justices are going to seek a strong numerical majority one way or another.  One way to do that would be to support the ACA and duck the issue of the mandate by forcing Congress to rewrite those provisions that are legally problematic. That way out for both sides may be another reason to doubt the mandate's constitutional prognosis.

Last but not least, there's always the prediction markets and public opinion. According to intrade, the individual mandate's odds of not surviving are 45%.  In the meantime, 51% of Americans believe the mandate is unconstitutional, while 53% predict it will be struck down.

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