Predictions and Possible Outcomes of the Supreme Court Decision on ObamaCare

Every objective data point I have discovered, both before and after the oral arguments in the Supreme Court, point to the entire law being made null and void.

Both the HSA Coalition and the 26 state governments went before the Supreme Court with the same fundamental argument: the ObamaCare regulations are the real source of the unconstitutionality of the law, and therefore, the entire law should be made null and void.

The states and the HSA Coalition took completely different paths to arrive at the same argument, with the states attacking head-on, whereas the Coalition attacked the law on its right flank — with our Milliman study providing gravitas.

Do not believe the salivating mainstream media’s drumbeat of illusion that the “most popular” aspects of the ObamaCare law will be passed in “bite sized” chunks.

“Most popular” and “ObamaCare” do not appear in any sentence that I know of among any of the rank and file GOP House or Senate elected officials.

It is instructive in this regard that when the GOP leadership even hinted of passing anything remotely connected to any ObamaCare provision — except to repeal it — the long knives not only came out, but found their mark.

Yesterday, the Speaker released his talking points on what will happen if the Supreme Court declares unconstitutional all or part of ObamaCare. Not on the list, any single provision of ObamaCare — shocking, I know.

Here is the Speaker’s one pager handed out to the House GOP caucus:

*As mentioned by the Speaker at this morning’s House GOP Conference meeting, here are the talking points the Speaker’s office is currently using in response to questions about the upcoming Supreme Court ruling on President Obama’s health care law* (this was in red text in the document)

From the Office of the Speaker of the U.S. House:

· The president’s health care law is making things worse — raising health costs and making it harder for small businesses to hire workers. The only way to change this is by repealing ObamaCare in its entirety.

· Unless the Court throws out the entire law, we need to repeal what is left of ObamaCare and enact common-sense, step-by-step reforms that protect Americans’ access to the care they need, from the doctor they choose, at a lower cost.

· Republicans will not repeat the Democrats’ mistakes. We won’t rush to pass a massive bill the American people don’t support.

· Health care coverage has become too expensive for too many people. The number-one health care concern of families and small business is the cost of health care, and Republicans’ health care reforms will lower costs.

· Women make 85 percent of the health care decisions in our country, and represent the vast majority of health care professionals. Republican health care reforms will ensure families and doctors make health care decisions — not Washington.

· We want families to be able to make their own choices in health care, visit the doctor of their choosing, and receive the health care they and their doctor feel is best. Those decisions shouldn’t be made by Washington.

Meanwhile, the next day, President Obama said he wants a do-over on health care reform in his second term. The President is preparing his base for parts or all of his law being thrown out. What could be clearer?

Here is the lead from Bloomberg: “President Barack Obama is confiding to Democratic donors that he may have to revisit the health-care issue in a second term, a position at odds with his publicly expressed confidence that the U.S. Supreme Court will uphold the Affordable Care Act, according to three Democratic activists.”

The messiest option will be that some parts of the ObamaCare law will be made null and void, and others, not. Prior to the oral arguments, this was the consensus position: if anything happens to the law, it’s the individual mandate that will get thrown out.

Then, the White House went before the Court and said if you throw out the mandate, you have to throw out a number of other insurance reforms. The Court is likely to agree with the White House, but take their logic to its logical conclusion: given the regulations will remain in place, that both the States and the HSA Coalition argued the regulations are the real underlying problem, then the regulations should go too.

If so, then the whole law goes — and given there was a severability clause in the law in an earlier version, and the final version did not have it, then this argues, also, for all of the law to go, not just a section.

Prudence, however, dictates a plan in case a messy decision results — essentially, the Court takes out only part of the tumor.

In that case, the HSA Coalition will immediately go to Congress and petition for relief from the Minimum Loss Ratio, and the Actuarial Value regulations to be part of any legislation moving in the House or in the Senate.

Since any law that could pass either the House or the Senate, will not pass the other, then whatever bills will pass as a result of the messy Supreme Court decision, will not become law.

Any legislation that passes either House of Congress post Supreme Court decision — regardless of whatever the Supreme Court decides — is just a dress rehearsal for a) the fall elections; and b) the next Congress, when the GOP expect to hold their gains in the House and take control of the U.S. Senate.

If the Supreme Court does the control-alt-delete option for ObamaCare, and we all get a nice, clean white piece of paper, and then the first up for us is the Hatch Omnibus HSA wish list bill.

We will push for all, or part of it, to be part of the “new” reform.

If the Supreme Court decides to leave ObamaCare completely untouched as Minority Leader Pelosi asserted with her prediction of a 6-3 victory for the constitutionality of ObamaCare, then the HSA Coalition will petition for legislative relief from the MLR and AV regulations, and make them part and parcel of the health care reform bill that may, or may not move in the House or Senate after such a decision.

The political considerations of a decision to make ObamaCare null and void are that Obama and the Congressional Democrats get off the hook politically from their ObamaCare wound. This will help them immensely in the fall elections, and remove a key GOP talking point and motivating issue to get voters to the polls.

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