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The Affordable Care Act: Day 3 at SCOTUS

By Gregg A. Masters, MPH

It’s deja vu all over again!

The theater circa 2010 at the Senate Finance Committee via the reconciliation process that delivered unto us the Patient Protection and Affordable Care Act, the framework enabling the accountable care industry, is in play again this time at the Supreme Court of the United States (SCOTUS).

[Editor’s note: For a comprehensive and politically agnostic resource c/o @CSPAN, click here].

Day 1 dealt with the Anti Injunction Act (AIA), an arcane Federal law that would have deferred consideration of the constitutionality of ACA, was both interesting and curious in substance and contribution to ‘sentiment meter’ of the individual justices.

Day 2 took a rather problematic turn, at least for those who favor the Act (a long list of supporters) vs. Florida AG Clement, et al , who are determined to ‘restrain’ the relationship between the Federal Government and the people via at times simple minded bright lines of markets v. commerce inherent in the intent of the ‘commerce clause’. Many pundits concluded the Solicitor General arguing the Government’s position grossly mismanaged the message, and lost control of a compelling narrative during his argument and subsequent lively questioning by the court.

Now comes the finale, Day 3, with the focus on the question of ‘severability’ of the individual mandate. While a rather boiler plate clause typical of most contracts, the severability of the mandate alone (in whole or part) vs. the Act in it’s entirety, is the question before the court. The omission is a rather curious fact in it’s own right, and will no doubt be grist for the ‘Congressional intent mill’.

I’ve drawn a line between the process associated with the passage of the Act as it played out via the theater of the Senate Finance Committee hearing in 2010. Apparently, I am not alone as reported this week by Bloomberg 75% of the public believe politics vs. merits will drive the consideration process:

So yes, here we go again. This law has had a hard time in the public sphere, see Pew piece ‘Public Remains Split on Health Care Bill, Opposed to Mandate‘, mostly misunderstood in the aggregate due to its complexity, yet embraced when you consider it’s line item nature, i.e., eliminating benefit caps, pre-existing conditions, requiring a minimum of medical loss ratio of 80%, extending dependent care coverage up to the age of 26, the establishment of health insurance exchanges to assist in the standardization, evaluation and purchase of health insurance plans, an oversight role of the unrestrained nature of the individual insurance market and more.

Today’s proceedings will add content to the odds makers and pundits’ calls on which way the court will decide. For a setup piece, watch this clip from the Wall Street Journal:

For audio analysis of the proceedings to date, check out the higlights from SCOTUSblog here.

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