The discussion in the Supreme Court has quickly turned from whether the case can be heard to whether the individual mandate is consitutional to whether the entire Patient Protection and Affordable Care Act law falls as a result of any part being declared unconstitutional.
In one of the most interesting discussions on Wednesday, Justice Samuel Alito asked what the fallback position would be for the rest of the act if the mandate were declared unconstitutional. He then referred to the amicus, or "friend of the court," brief filed by AEI health experts Thomas Miller, Joe Antos, Jim Capretta and Chris Conover, among others, which contends Title I, mandating the establishment of health exchanges and the means to pay for them, must go.
In response, Paul D. Clement, lead attorney for the petitioners and a former solicitor general under President George W. Bush, said that Title I and "a handful of related provisions that are very closely related to that are really the heart of the act."
"At a certain point, I just think that, you know, the better answer might be to say, we've struck the heart of this act, let's just give Congress a clean slate. If it's so easy to have that other big volume get reenacted, they can do it in a couple of days; it won't be a big deal. ... I'd rather suspect that it won't be easy," Clement said.
Here are some other pieces by Conover, Capretta and AEI fellow J.D. Kleinke relating directly to the case.
- AFTER OBAMACARE?: In a just-published piece in National Affairs, AEI visiting scholar and health expert James Capretta sets out the seven principles for an effective, market-based solution to America's health care problems. His proposal would address the systems current flaws, without relying on centralized federal power.
- SLIPPERY SLOPE?: In a new post, AEI expert and Duke University professor Christopher Conover examines Justice Scalia's line of questioning: if lack of exercise, like failing to cover the uninsured, raises health costs for all, could the government mandate exercise? Conover does the math. The failure to purchase health insurance raises rates for the insured by at most 20 cents per day (and more accurately 6 cents per day), far less than the almost 50 cents per day cost of failing to exercise. Conover is the author of American Health Economy Illustrated (AEI Press, 2012), an essential compendium of health information.
- PERILS OF WAITING: In a new op-ed, AEI resident fellow J.D. Kleinke, an expert on the business of health care, describes how the health care industry and state governments are watching and waiting for the Court’s decision--and in doing so, harming the health system. Businesses are consolidating and shifting capital away from innovation to prepare to implement the health reform law's mandates. State governments have delayed creating the exchanges necessary to implement the new law because of the uncertainty surrounding the case, and so have enabled the federal government to take on that task and gain more power.