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Wednesday, June 6, 2012

Tangent: PPACA at the precipice

There's Beltway chatter in the digital ether today that the SCOTUS "ObamaCare" ruling could be handed down next week (likely a week from today). I've been predicting that they will Uphold (6-3?), but, after the Scott Walker Recall effort thumping in Wisconsin, I have to wonder (nah, the Court isn't "political"). The outcome doesn't affect my work directly one way or the other(s) short-term -- though "ACOs" and a number of our QIO initiatives are authorized under PPACA subtitles, as I've written about before.

I hope they do in fact rule next week, whatever its fate. I've been predicting 6-3 to Uphold (way out on a limb there), maybe only 5-4. If it goes the other way, there's no doubt it'll be 5-4 to Strike (Thomas, Scalia, Alito, Kennedy, Roberts). The only material question there would be how much will they strike? All of it? (PDF: The AHIP/BCBSA amicus brief wish in the event they Strike.**) Just the Individual Mandate? The Medicaid Mandates?
** "AHIP submits this brief in support of neither party. The parties’ briefs will extensively address the legal questions surrounding the constitutionality and severability of the individual mandate provision. In this brief, our purpose is not to speak to those constitutional issues or to how or whether this Court should conduct a severability analysis in the event the mandate is determined to be unconstitutional. Rather, AHIP’s purpose here is narrow and limited, seeking to draw on insurers’ knowledge and experience in the States to assist the Court in understanding why the insurance market reforms found in Section 1201— particularly the guarantee issue and adjusted community rating requirements and the prohibition on pre-existing condition exclusions—would not be economically and actuarially sound if the individual mandate were struck down."

How magnanimous. Did the President get played here?
6-3 to Uphold (Roberts and Kennedy +4) effectively puts it to rest, as far as "constitutionality" goes. Get Over It, Reeps, Fox, Heritage, and Cato. Your only recourse is to mount the votes in Congress to repeal it, in toto, or eviscerate and kill it it via a death of a thousand cuts.

5-4 to Uphold (Roberts gives Kennedy cover, or vice versa) says "this is all we're grudgingly giving you regarding your ungainly Frankenstein Monster; let the 2012 campaign begin in earnest"), and 5-4 to Strike (even just the Individual Mandate) says "we're not afraid of you, or the clueless passively pro-PPACA public; let your one-termer lengthy retirement begin in earnest next year. Hit the reset button on health care legislative reform."

BTW, it's 906 pages long (with wide margins, to boot), not "2,700." I have a copy, and I've read it.


Interesting. Like Justice Scalia and Thomas in particular could give a flip. And, I would have to concur that theirs is not a plebiscite role. But, they're called "Justices" for a reason.

Obama Was Pushed by Drug Industry, E-Mails Suggest

[N]ewly public e-mails open a window into the compromises underlying a health care law now awaiting the judgment of the Supreme Court.

Mr. Obama’s deal-making in 2009 represented a pivotal moment in his young presidency, a juncture where the heady idealism of the campaign trail collided with the messy reality of Washington policy making. A president who had promised to negotiate on C-Span cut a closed-door deal with a powerful lobby, signifying to disillusioned liberal supporters a loss of innocence, or perhaps even the triumph of cynicism.

But the bargain was one that the president deemed necessary to forestall industry opposition that had thwarted efforts to cover the uninsured for generations. Without the deal, in which the industry agreed to provide $80 billion to expand coverage in exchange for protection from policies that would cost more, Mr. Obama calculated he might get nowhere...


Tick, tick, tick...

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