Not a great deal has changed after hearing the oral arguments and the questioning by the Justices. Keep in mind that whatever side is being argued before the Court is going to be “attacked” by the Justices – it’s not unlike defending a thesis, in that the Justices want litigators to defend the suppositions used in their reasoning – if the premise is flawed, arguments supporting it are moot. They probe for weaknesses. Also, orals are only a part of what goes into the decision process. Each side also has the support of various interest groups who are not represented before the Bar – these arguments are filed as Amicus Curiae (“friend of the Court”) briefs that argue single-issues. It’s the totality of argument that the Justices then take into deliberation, and discuss among themselves before they vote and retire to write their opinions.
The largest shift in my thinking is an increased probability that the entirety of the law may be struck down if the mandate is found to be unconstitutional. I believe it was Justice Alito that hit upon the key in this regard when he noted that to remove the mandate is to remove the engine of the law, and that would not result in retaining the bulk of congressional purview. In other words, removing the funding removes the function itself. In taking this view, the Court is admitting that don’t believe the double-counted $500 billion will ever be taken out of Medicare, leaving only the relatively small tax changes and the mandate as funding mechanisms for this massive program. They believe that a complete re-think of the problem by Congress would be better than leaving a crippled system on the books.
There is a middle ground that may eventually win-out – removing the mandate and the two programs that entirely depend on it: prohibiting the exclusion of pre-existing conditions (or charging market rates for their inclusion); and, the limitations on rate structures imposed under the law.
The rate question could be largely mitigated by allowing health insurance to be sold across state lines, as is done with other kinds of insurance. The single most powerful dynamic to exert downward pressure on price is competition. That’s a possible remedy that Congress could consider, but the issue wasn’t discussed before the Court. Government could also define and assume coverage for pre-existing conditions and catastrophic care – two areas that private insurers would have to charge actuarial rates for or go out of business if forced to include them.
Overall, I haven’t moved much on my views as to what I think will happen with this case. I still think the probable outcome will be the striking down of the mandate (and possibly the above-noted insurance-related provisions) and the leaving in-force the remainder of the law.