Election vs. Supreme Court on Health Reform

In my travels many I’ve spoken with about health reform’s future seem to have the impression that the Supreme Court’s consideration of the individual mandate is where the law will live or die.  Think again — the American electorate will have far more sway over the future of the ACA than the 9 Supremes ever will.

Think of it this way: the Justices are only considering the constitutionality of the mandate; voters are considering the whole shebang, and every GOP candidate has sworn to scrap the entire law.  In many ways, November 2 is a referendum on whether to implement the ACA, even though it’s barely registering as a campaign issue.  As a general proposition, if Obama gets re-elected, the ACA moves forward in 2014; if he loses, it’s dead.

Front-runner Mitt Romney has pledged to repeal the law, and his advisors are figuring out just how much dismantling could be done through the White House and HHS, without congressional action. A new president and HHS secretary would have enormous power to slow-walk the law during their first year in office. That’s when HHS will have to finalize all the regulatory details for the state or federal health insurance exchanges where many consumers will buy coverage after 2014.

It’s unknown whether the Senate or House will be controlled by Democrats, who could hinder legislative efforts to repeal or defund the law. Even if they lose control of the Senate, Democrats may still have enough votes to be able to slow down or block efforts to repeal ACA.

If Democrats retain the White House and control both chambers of Congress, implementation could move forward, and they could even pass a law amending the health care reform legislation to make the mandate a tax, which would largely clear it of its constitutional hurdles.

It appears that even if the Supreme Court ruled against the individual mandate in June, the damage probably would be limited.  The 26 states are asking the court to strike the entire law, but most legal experts think that’s unlikely. Most analysts say that if the court strikes down anything, it would either get rid of the mandate alone or, at most, the mandate with some of the insurance industry reforms and regulations.

The court’s ruling could have an impact on state implementation, however: states have to prove to HHS by early 2013 that they have the basics in place if they want to run their own health exchanges; otherwise the federal government would do it. Some states have said they won’t do anything on an exchange until they know whether the law is constitutional.  “If it is upheld, the states that have been reluctant may look at this and say, ‘You know the odds of the Republicans winning the presidency as well as [both chambers of Congress] is not so high that we should stop all implementation efforts,'” said Tevi Troy, an adviser to the Romney campaign and a former deputy HHS secretary who opposes the law.  If a state were to get started after a ruling in June, it might have time to meet the deadline. But the states can’t wait until November to decide.

So the Court’s upcoming ruling certainly matters to the future of health reform — it’s just that the election matters a lot more.  Stay tuned.