What If the Supreme Court Decided ObamaCare in Favor of the Insurance Industry?


The White House is calmly assuring anyone who asks that there's no question that last year's health care overhaul will be found constitutional in its entirety. But as The Hill reports, some Democrats aren't so confident:

Over the last couple weeks, congressional Democrats have told The Hill that the law faces danger in the hands of the Supreme Court, which The New York Times editorial page recently labeled the most conservative high court since the 1950s.

To some extent, this is all just expectations setting. I've cautioned critics of the law that the odds are against them in the Supreme Court. And even though conventional wisdom now gives opponents a much better shot than when the challenges first began making their way through the court system, I'd say that's still true. It's not that critics should be more confident of their chances; it's that everyone on both sides should be far less certain they can predict the outcome. The decision could go 5-4 either way. It could go 7-2 against the mandate. It's still useful to look into each justice's history and previous court decisions, but at this point, reading the tea leaves will only get you so far. 

The Hill report continues:

While the lawmakers are not second-guessing the administration's legal strategy, some are clearly bracing for defeat.

"Of course I'm concerned," said Sen. Sherrod Brown (D-Ohio). The justices "decide for insurance companies, they decide for oil companies, they decide for the wealthy too often."

"Decide for insurance companies." That's an interesting choice of phrase. What would happen if the Supreme Court decided "for insurance companies" in this case? Well, according to a Supreme Court brief filed by the insurance industry's biggest lobbying group, the industry doesn't oppose the law—just so long as it includes the most constitutionally dubious provision, a mandate to purchase health insurance. So one way to decide for the insurance companies would be to leave the law exactly as it is.