Quick Take — “Community Rating” And “Guaranteed Issue” Likely To Fall If Mandate Does, Rest of Law’s Fate Unclear

The Supreme Court just adjourned after an hour-and-a-half of argument on whether the rest of the Affordable Care Act can stand if the individual mandate is struck down.  Stay tuned for a full update and a Q&A at 3 p.m.  For now, here are some quick highlights from Dom at the Court:

  • As with yesterday’s argument, the Court appears deeply divided, with a few key Justices up in the air.
  • Justices Sotomayor, Kagan, and Ginsburg seem to agree with the government’s argument that if the mandate falls, the “community rating” and “guaranteed issue” provisions should fall as well, while the rest of the Act stays in place.
  • Justices Scalia, Kennedy, and Alito appear to agree with the plaintiffs that if the ACA falls, the whole law falls.  And all three repeatedly expressed concerns for the losses insurers will suffer if the community rating and guaranteed issue provisions remain in place absent the mandate.
  • Justice Breyer was concerned about how the Court should decide which provisions stay and which fall.  He floated the idea of a remand to the lower courts to work it out.
  • The key may be Chief Justice Roberts.  He had hard questions for the plaintiffs, pointing out that much of the ACA is totally unrelated to the mandate.  But he also expressed concerns about the economic consequences of leaving only part of the law in place.

Stay tuned for a full post.  And please join us for a Q&A on this site from 3 p.m. to 4 p.m.  Dom will start a new post just before 3 p.m.; you can ask your questions in the comments, and he’ll do his best to answer them.


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