Thursday, June 21, 2012

Seven things we know for certain about the health reform ruling

We don’t know yet how the Supreme Court will rule in regard to the challenge to the Affordable Care Act however there are seven things we know for certain about the court ruling:

1. It WILL NOT be a unanimous ruling.  Mostly likely the decision will be 5 to 4 with sharp disagreement among the justices expressed in several different written concurring and disenting opinions.

2. The majority opinion WILL NOT uphold the law in its entirety.  At a minimum, the 5 to 4 majority opinion will declare the individual mandate unconstitutional.  It is very likely that the majority opinion will go further to strike down other major pieces of the legislation such as the ban of denial of coverage for pre-existing conditions.  There is a better than even chance that the 5 to 4 majority will strike down the entire law.

3. The majority opinion WILL overturn almost all previous precedents concerning Congress’ power to regulate interstate commerce. In order to agree with this ruling justices siding with the majority, Justice Scalia in particular, will have to overturn their own previous decision(s) with respect to the commerce clause.

4. Every law passed by Congress that relies upon the commerce clause, especially New Deal legislation, will be the subject of future litigation with complainants relying upon the Affordable Care ruling as a basis for striking down other legislation, even legislation that has been in effect for decades.  There will be an explosion of lawsuits seeking to overturn established law, some of which have been in effect for decades.

5. The court’s ruling on the Affordable Care Act will have NO effect on the outcome of the 2012 election regardless of how the court rules.

6. Regardless of how the court rules, health reform WILL NOT be revisited by any administration either Democratic or Republican for decades.  There will be no appetite in Washington to take on health reform again anytime soon.

7. If the court overturns the law in whole or part as expected, then health care costs and the number of Americans without access to affordable health insurance will continue to increase, perhaps at a dramatic pace.

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