ACA-Supreme Court Musings

I have read extensively over the past three months about how the Supreme Court may rule next week on the pending case regarding the ACA. I have read articles from some of this country’s most respected experts and none of them can agree as to how the United States Supreme Court will rule. At Northeast Delta Dental, we have added resources to help prepare us for any outcome as the market is changing irrespective of the Supreme Court decision.

Now I am going to speak with a different voice. As CEO, I try to provide you with pertinent information that directly affects you as a participating member dentist, purchaser, or subscriber. This time I am going to give you my opinion on how I believe the USSC will rule. In any event, please do not infer from anything that I say here that I am taking a position supporting or opposing the ACA. The ruling will affect you as a dentist, small business employer, large group decision maker, parent, child, and citizen.

I am going to concentrate on the minimum provision clause, the so-called ‘individual mandate’: the government compelling an individual to enter into commerce to purchase health care insurance. This part of the law will affect every American.

First, the USSC has to rule whether this is a tax or a tax penalty. If it is ruled a tax, then under the Anti-Injunction Act (AIA) of 1867, until the tax is collected in 2014 it cannot be ruled on by the USSC. If it is ruled a penalty, then they can rule on it immediately.

I believe it will be ruled a penalty and the USSC will find the individual mandate unconstitutional.

The next aspect that would be decided upon is whether the individual mandate can be severed from the rest of the law. Most legislation includes that verbiage; however in this case, they either forgot or purposely left it out. By severing, it would allow only the individual mandate to be struck down as unconstitutional on its own and allow part or the rest of the law to continue as is.

I think it will be severed and then the USSC will rule on the Medicaid Expansion clause. I believe they, like every lower court has, will uphold this part of the law as not being coercive to the state of Florida and the other 25 states who have filed the case.

So what’s next?

Without the individual mandate, 43 million Americans who presently are without health care insurance will not be required to purchase it; therefore, there will be less income to implement several parts of the ACA.

What will stay preserved are the State Exchanges, a young adult to be added to a parent’s health insurance plan until the age of 26, and the allowance of people to purchase a health insurance plan regardless of any precondition.

With regard to the State Exchanges:

Maine: Governor Paul LePage informed the HHS in April that Maine would not be pursuing efforts to create an Exchange; however, then signed into law a Navigator Program which allows brokers to act as navigators in the Exchange.

New Hampshire: Governor Lynch signed into law a bill that prohibits planning, creation or participation in a State Exchange, but protects State control of the New Hampshire insurance industry as a condition of participating in a “federally facilitated exchange.”

Vermont has adopted a State Exchange and is moving towards a single payer system in which all its citizens will purchase health care insurance through their Exchange.

The remainder of the 47 states may choose one of those models.

That is it for now; I will follow up next week. Depending on how the USSC rules, you may either want to consult with me to pick who is going to win the World Series in the fall or ask me to go back and do what I do best, which is to lead a strong prepaid dental benefits organization.

This entry was posted in Health Care Reform, Patient Protection and Affordable Care Act. Bookmark the permalink.

2 Responses to ACA-Supreme Court Musings

  1. Thank you, Tom, for your succinct and informative overview. Regardless of how the Court rules, the healthcare system needs to change. As of the 2001 census, microbusiness mades up almost 70% of all business in America, however very few microbusiness owners can afford healthcare for themselves or their employees; the system is failing most American business owners. IMHO, the Supreme Court is tending more toward political decisions that judicial ones.

    As my friend Jorge Redmond, CEO of Chocolates El Rey in Venezuela said of Hugo Chavez this weekend, we’ll outlive the politics, but it might not be pleasant.

    Kind regards,


    • neddblog says:

      Hi Rich,

      Thank you for your comment on my blog. As you know, and per my latest blog, the Supreme Court has spoken and basically the entire ACA survives, except for a piece of the Medicaid provision. I believe Chief Justice Robert’s opinion (that it is a tax, even though President Obama said it was not a tax) was such that he didn’t want the Supreme Court to make the call – rather, if the current or future congress and the body politic (“the people”) don’t like some of the ACA provisions, then make new law or elect new legislators to make new law. So, Mr. Redmond may be right, and it appears political considerations crept into the Supreme Court (and the Supreme Court’s apolitical credibility may still be recovering from the 5 to 4 Presidential election decision, Bush v. Gore).

      In any event, whether the ACA is a tax or not, health care costs continue to increase. The ACA may ultimately fix access and universal coverage, but it doesn’t appear to address the cost issue. As my good friend and business mentor, Dr. Syl Dupuis likes to say, in health care, one can have two of the following three: robust access, low price, high quality. And we Americans tend to want all three! I do understand that health care costs are difficult for small employers to deal with, and candidly, even for large employers.

      Thanks Rich for writing to me.
      Tom R

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