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What Would Happen if the PPACA Is Struck Down?

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This is the time when it seems obligatory for Supreme Court analysts to make predictions about how the Court will rule in the imminent health care ruling. Mine is the same — I have no idea. The case will come down to a justice with an erratic record on the relevant issues who didn’t show his hole cards at oral argument.

What is worth considering is what would happen if the PPACA, or its mandate, is struck down. We should first of all be clear that the mandate is necessary for the bill to work, for reasons Sarah Kliff details:

In 1993, Washington state passed a law guaranteeing all residents access to private health-care insurance, regardless of their health, and requiring them to purchase coverage.

The state legislature, however, repealed that last provision two years later. With the guaranteed-access provisions still standing, the state saw premiums rise and enrollment drop, as residents purchased coverage only when they needed it. Health insurers fled the state and, by 1999, it was impossible to buy an individual plan in Washington — no company was selling.

Not only should this settle the policy question, it should have settled the legal question. Unless you take the radical libertarian position that the federal government cannot regulate the health insurance market (or are a soldier in the even more crackpot libertarian War on the Concept of Insurance) the mandate is a necessary and proper part of a regulatory framework that is concededly constitutional. And, of course, the War on the Concept Of Insurance is incredibly stupid. Health care emergencies and long-term health care issues are distributed unpredictably without any regard to ability to pay, and the expenses involved would bankrupt all but the most wealthy. The pooling of costs and risks is fundamentally necessary, and while the PPACA is not my ideal means of accomplishing this there’s no constitutional requirement that policy fixes be optimal (particularly when the structure of American political institutions makes is impossible to enact them.)

Which brings us to another important point. The PPACA isn’t very popular. But this is somewhat misleading, in that the public supports most of the provisions of the bill but opposes the mandate, but the former are impossible without the latter. So while it’s superficially true that the public is comfortable with the Supreme Court striking down the PPACA, it’s also worth noting that if “the Supreme Court strikes down President Barack Obama’s signature health care reform law, 77 percent of Americans want the president and Congress to work on new legislation overhauling the system” and “[o]nly 19 percent of Americans want lawmakers to leave health care the way it is.” Much of the public — like some analysts who really should know better — seems to have the idea that if the PPACA is struck down it will be immediately replaced by the Magic Pony Plan With the Same Benefits and No Costs. In fact, Congress’ offer will be nothing, and especially not the fees for your long-term illness, which it would appreciate if you would head straight to bankruptcy court put up personally despite your negative net worth.

And, should anybody still be tempted to make a heighten-the-contradictions argument, let’s not forget where the burdens of the contradictions would fall.

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