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Supreme Court Hearings regarding the Patient Protection and Affordable Care Act (PPACA)

There are four legal arguments that were in front of the Supreme Court last week. First, can the Court hear the case prior to a taxable event? Second, does Congress have the power to issue such a mandate? Third, if the mandate is unconstitutional, can it be severed from the bill? And fourth, did Congress improperly burden the States when it expanded Medicaid eligibility?

The federal Anti-Injunction Act, dating back to 1867, bars anyone from challenging a tax until it has taken effect. The way the PPACA was written the word “penalty” was generally used instead of “tax”. And even some who are pro-PPACA feel that the court should hear this case so that we can move on with reform.

The Justices seemed to imply on Monday through the questions that they thought the answer to the first question is “yes”. On Tuesday, their questions implied that individual mandate may be in jeopardy. And on Wednesday, they pressured the Solicitor General about the expansion of Medicaid. It is very difficult to know what the Court is thinking prior to them issuing a decision. But the tone of the questioning early last week seemed to be in favor of the 26 States who brought the case against the PPACA.

The Court will likely be split with Justice Anthony Kennedy being the swing vote. He said that (this law) “changes the relationship of the federal government to the individual kid very fundamental way.” And Chief Justice Roberts questioned the power of Congress to regulate this market. Currently the States regulate insurance. He seemed concerned that this is a slippery slope, and Congress has taken on more power than they have been assigned by the Constitution.

As of now, the Justices have taken an initial vote. There are three common opinions which will be written. The Majority Opinion will be the decision of the court. The most senior Justice who agrees with that decision will be tasked with writing the Concurring Opinion, although he or she can delegate that to another Justice. Likewise, most senior Justice who disagrees will write the Dissenting Opinion. The vote can still change between now and the time the Court offers the Majority Opinion.

So there are three potential outcomes from the Court. One, it could deem the Mandate unconstitutional and strike it down entirely. Second, it could deem the Mandate unconstitutional, but only remove that Mandate and anything else it needs to remove. Third, it could deem the Mandate constitutional and the bill would remain intact. A decision is expected from the Supreme Court in late June. In addition, we have to consider the upcoming election. The Republican candidates have come out strongly against the PPACA, calling it “Obamacare”. If a Republican is elected, he will fight the bill. However, he can’t do that alone.

So where do we go from here? We have to wait until late June for the Supreme Court to issue its decision. If any or the bill is severed, it will need to be replaced by something. It’s fair to say that our Healthcare System is broken. Our challenge is to fix it with the broken system of Politics. Our power as citizens is to be more educated consumers. Start asking why care costs as much as it does. We need to be educated consumers in order to bring ‘value’ back to healthcare. If we do that, we can start to control some of the underlying cost of our care.

What do you think about this healthcare debate? How would you improve our system?

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