What should be done if the Supreme Court strikes down the Affordable Care Act’s individual mandate?
If the Court does anything—which, of course, it should not—it would likely only remove the mandate and possibly the associated insurance company regulations and subsidies for purchasing insurance. Striking down the entire law would be a dramatic and unlikely step, even for this conservative bench.
So where would the law stand if the mandate disappears, and what could be done to patch it?
Many Democrats and their political allies have been publicly and privately talking up the benefits of the Affordable Care Act outside the mandate—like the Medicaid expansion, the ongoing creation of state exchanges for buying health insurance, the various cost-control measures in the bill—and downplaying the severity of losing it.
“There’s been entirely too much attention paid to the mandate, and not enough attention paid to what the law will do and the ways that it’s already benefiting millions and millions of Americans,” Ethan Rome, executive director of the progressive coalition Health Care for America Now, which was instrumental in getting the law passed, told me in a phone interview. “The sport of speculation about what the Court will do is in overdrive, and as part of that, people are overthinking how to make the law work if one thing or another about it is changed.”
But there’s no doubt that if the Supreme Court indeed guts the mandate, it would create a political opportunity for more reform of the healthcare system. Seventy-seven percent of Americans want another reform attempt even if part of the law is struck down, and President Obama has been privately telling donors his administration would probably make another run at improving it. House minority leader Nancy Pelosi is on board too. And who really thinks that, even if it remains untouched, the Affordable Care Act represents the pinnacle of health reform?