March 30, 2012
If the comments made during the oral arguments before the Supreme Court accurately reflect the justices’ views, then many observers have speculated that PPACA’s individual mandate is in trouble. Justice Kennedy, who has long been considered the key swing vote on the mandate, appeared quite skeptical of Congress’s authority to enact the controversial mandate. However, he did not commit himself one way or the other, and the law’s constitutionality remains very much in play. Even assuming one can predict from his demeanor that Kennedy would join his four conservative colleagues and strike down the controversial requirement, no majority position appeared to emerge on the critical question of what happens to the rest of PPACA. While five of the justices, including conservative Chief Justice Roberts, appeared inclined to let the rest of the law stand, they disagreed about whether insurance reforms on pre-existing conditions or insurance pricing should fall with the mandate. The four remaining conservative justices appeared supportive of invalidating the entire law if the mandate goes. Either way, the Court was in full agreement that if the mandate falls, the law should go back to Congress for a fix. Justice Ginsburg captured this sentiment in commenting that “if Congress doesn't want the provisions that are not infected to stand, Congress can take care of it.” Even if the Court were to strike down the individual mandate before the end of June, it is very unlikely that Congress would take any action to fix the health reform law before the November election. Moreover, even after the election it is very uncertain whether the House, Senate and White House could all reach agreement on a fix for PPACA. Meanwhile, implementation moves forward, and employers remain bound to comply with all aspects of the law.