Monday, January 17, 2011

An interesting exchange on the role of the insurance industry

Jack Balkin (Yale) and Ilya Somin (George Mason) have posted an interesting exchange on the role of the health insurance (or health plan) industry in supporting the ACA's minimum essential coverage provision, and its potential impact on the ACA litigation. Balkin's post is here, and Somin's response is here.

The exchange raises a some important questions, each of which deserves more exploration: (1) If the Supreme Court ultimately invalidates the individual mandate, will it also invalidate the ACA's "guarantee issue" and "community rating" provisions in ACA 1201? Everyone concedes that these provisions work together as an integrated, systematic regulation of the market (though there is considerable dispute about the wisdom of that system). But would the Court invalidate those provisions itself, or would it leave rationalizing what is left of the Act to Congress? (2) If the latter, will Congress actually do so? That is, would there be the political will to repeal--in a stand-alone vote--the portions of the ACA that are actually quite popular with the American public? (3) To what extent will "big business" (admittedly, a vague term, especially when applied to legislation as varied and as complex as the ACA) get involved in the ACA litigation? The hospitals have already filed amicus briefs supporting the ACA's constitutionality. The National Federation of Independent Businesses (which represents a large swath of small businesses) is a plaintiff in Florida v. HHS. Will other businesses jump into the fray? For instance, will the influential Chamber of Commerce National Litigation Center take a position? And if it does, how much might this influence the Supreme Court?

All matters to keep our eyes on.