06.19.2012 0

What happens if the Supreme Court overturns Obamacare?

NRD Editor’s Note: This is the first of three articles examining three potential outcomes of the upcoming Supreme Court ruling on Obamacare’s constitutionality.  Today we examine what happens if the Supreme Court overturns Obamacare in its entirety.

ObamaCareBy John Vinci — Last March’s oral arguments before the Supreme Court over Obamacare caught liberals off guard.  Up until that point liberals had assumed that there was little chance of Obamacare being overturned. But after hearing Solicitor General Donald Verrilli seemingly stumble in his arguments and after hearing the strength of the arguments against the individual mandate, liberals began to freak out.[1]

Surprisingly the Obama Administration has admitted that they are not making contingency plans should Obamacare be overturned.[2] But while the Obama Administration embraces a “do nothing” preparation strategy, some liberal groups are reportedly planning to tell the stories of individuals who have been hurt by the fallout of an overturned Affordable Care Act.

Make no mistake—there will be repercussions if Obamacare is overturned.  The Obama Administration, the states, private insurers, and other businesses have all spent the past two years implementing and preparing for Obamacare, which has a potential impact of hundreds of billions of dollars.  Overturning it would be like stopping a freight train by running it into the side of a tunnel-less mountain.  Secretary of Health and Human Services, Kathleen Sebelius said that overturning Obamacare would have a “pretty cataclysmic impact.”[3]

Obama’s lack of a contingency plan is astounding, given the gravity of Sebelius’ statement.  And while we can only speculate what the impact would be, here are just a few of the uncertainties:

  • Maryland’s Secretary of Health and Mental Hygiene, Dr.  Joshua Sharfstein, reported that his office has received calls from patients in the federal high-risk insurance pool wanting to know if they should schedule their surgeries before the Supreme Court makes its decision.[4]
  • States are asking whether Exchange implementation grants will continue and whether they will be reimbursed for progress already made.[5]
  • States that have been preparing for an influx of new Medicaid patients, may have to act quickly to make adjustments should Obamacare be overturned in its entirety.[6]
  • And what happens to the hundreds of millions of dollars in low interest loans that have been granted to new CO-OP insurance companies?[7]

States, insurance companies, and even local doctors’ offices want to know what will happen if Obamacare is overturned.

But while liberals plan to give us sob stories of people who will be hurt by the overturning of an unconstitutional law, let us also be clear about who would be at fault—Obama himself.

On the campaign trail in 2008, Obama had serious reservations with an individual health insurance mandate. In Confidence Men, Ron Suskind’s chronicle of the early days of the Obama Administration, Suskind tells that “Obama, never much for the mandate, was concerned about legal challenges to it….”[8]

Obama’s eventual support for the individual mandate, then, was reckless.  He is no dummy.  As a former law professor, he knew full well that there would be legal challenges to it.  In fact, as Suskind reveals, this was part of the reason he was originally against it. But Obama allowed his advisors to convince him to place the individual mandate into his health care reform law anyway—and not only place it into the new law—but to make it its centerpiece.[9]

It doesn’t take a law professor to figure out that placing a constitutionally questionable provision at the center of a law jeopardizes not only the law itself but anyone who relies on it.

For the sake of liberty—and if there are ever to be any constraints on federal power—Obamacare must be overturned.  But if people are harmed by the overturning of Obamacare, Obama will have no right to decry the injustice of it.

John Vinci is a staff attorney with Americans for Limited Government and is the editor in chief for the www.obamacarewatcher.org website.


[1]HuffingtonPost.com, “Jeffrey Toobin: Obamacare ‘Looks Like It’s Going To Be Struck Down’ (VIDEO)” http://www.huffingtonpost.com/2012/03/27/obamacare-trial-jeffrey-toobin_n_1382914.html?ref=politics&ir=Politics

[2] Jennifer Haberkorn and J. Lester Feder, PoliticoPro, W.H. ready but not planning for health ruling (June 8, 2012) https://www.politicopro.com/story/healthcare/?id=11981

[3] Nurse.com News, Sebelius: Overturning ACA would be ‘pretty cataclysmic’ (June 7, 2012) http://news.nurse.com/article/20120607/NATIONAL02/106110031

[4] Joshua Sharfstein, comments given at Pro Health Care Breakfast Briefing (June 1, 2012) See http://politico.cvent.com/events/pro-health-care-breakfast-briefing/event-summary-7d51f9c67c1a46e192b6a80262e03e07.aspx

[5] Dylan Scott, If ACA is Overturned: What Happens to $1 Billion in Exchange Grants?, Governing.com (June 5, 2012) http://www.governing.com/blogs/fedwatch/gov-if-aca-overturned-what-happens-to-health-exchange-grants.html

[6] Dylan Scott, If ACA is Overturned: What Happens to Medicaid?, Governing.com (June 4, 2012) http://www.governing.com/blogs/view/gov-if-aca-is-overturned-what-happens-to-state-medicaid-enrollment.html

[7] Fact Sheet, U.S. Dep’t of Health and Human Servs., New Loan Program Helps Create Customer-Driven Non-Profit Health Insurers (May 18, 2012) available at http://www.healthcare.gov/news/factsheets/2012/02/coops02212012a.html

[8] Avik Roy, Obama Was “Concerned About Legal Challenges” to Individual Mandate When Obamacare Was Being Designed, The Apothecary (Sept. 22, 2011) http://www.forbes.com/sites/aroy/2011/09/22/obama-was-concerned-about-legal-challenges-to-individual-mandate-when-obamacare-was-being-designed/ .

[9] Id.

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