It is an article of faith among many on the Left that the answer is easy: the majority on the Roberts Court is in the tank for the Republican Party. And within certain limits and with qualifications that is my view too. But the question today is WHICH Republican Party? The nativist libertarian leaning Christianist Tea Party? Or the internationalist corporatist Republicans? And the answer is critically important when it comes to the ACA bill. And the key factor is the individual mandate.
The sideshow of outright repeal was settled last week The debate over the ‘individual mandate’: Stuck in neutral? the Republicans got an up or down vote, albeit with a 60 vote majority needed and ended up with a party line 47-51 vote to waive the budget rule, or not even the 50 votes actually needed to win final passage on the underlying amendment or the final bill to repeal. They had their shot, demonstrated to both sides of the Party that they were willing to do the ‘right/Right’ thing, but had to move onto one of the other three paths available: defunding implementation, piecemealing it, or supporting court action. But there is where things fall apart on them. More below the fold.
Would the insurance companies welcome total repeal and a return to their old business model? Well probably but it would be a mixed bag, because they love the new locked in customer base and tax breaks for small business even as they hate much of the insurance reform. But the biggest and most powerful driver of that locked in customer base is the individual mandate, the worst possible outcome for them is for just that piece to be knocked out via legislation or the courts. For them it is all or nothing, a piecemeal approach being fatal.
Teabaggers come at this from a different directions. Those who start from a more libertarian position detest the individual mandate while the nativist side is driven by darker visions of socialized medicine and death panels but the real point of communality and the focus of their organized efforts is precisely the mandates. These people could conceivably settle on a package that preserved most of the insurance reforms relating to pre-existing conditions as long as mandates were stipped out.
Meaning that any intermediate solution leaves Teabaggers and Insurance companies in diametrically opposed positions, their only common ground being outright repeal. Which leaves the Supreme Court in a bind. Are they really willing to rely so heavily on the lack of a severability clause that they would just steamroll over the intent of Congress on a matter that had been under constant debate for half a century and throw out the whole bill? Or are they more likely to just focus on the actual legal challenge centered on the mandate and possibly just strike down that provision of the law and so leaving insurance companies high and dry? I don’t know but the vote on Citizens United suggests the majority is weighted towards the corporatist side.
So once again, and starting from the assumption that the Court operates on ideological and Party grounds, which faction are they going to stand with? And this is complicated further by the fact that the interests of other sectors outside big insurance have different stakes in this, if you are a ‘small’ to ‘large’ business as defined (as opposed to ‘largest’) there is a lot to like in the ACA in the way of subsidies. That is the question’s answer does not resolve down to ‘Republicans’, that is more a starting point than ending one.