Just as bright yellow “Don’t Tread on Me” and American flags flew high in front of the Supreme Court this week, so did the tempers of the crowds of supporters and opponents of health care reform gathered outside.
Completing three days of historic arguments Wednesday, the nine justices heard arguments on whether the rest of the law can survive should the court decide Congress exceeded its powers by requiring all Americans buy insurance by 2014.
Although industry organizations are reluctant to comment given the uncertainty surrounding the oral arguments, National Association of Insurance and Financial Advisors President Robert Miller says of the Supreme Court arguments, “As always, NAIFA is committed to working towards improving the health care system for Americans. We’ve never been shy about voicing our concerns over some aspects of the Affordable Care Act that would harm consumers and make it more difficult or impossible for agents and brokers to effectively serve them. For example, we have worked to mitigate negative effects of the medical loss ratio provision of the law and to ensure a meaningful place for agents in the state exchanges. We’ll continue these efforts as the Supreme Court considers this week's arguments over the broader health care law.”
On Tuesday the Obama administration faced skeptical questioning from the court's five-member conservative majority on the individual mandate insurance requirement. Although a decision is not expected from the Supreme Court until the summer, broker Reid Rasmussen of Benefit Brainstorm in McKinney, Texas, believes "regardless of what specific decisions come out of this, I don't believe we'll see a full repeal. So many pieces of the law have already been implemented, which I don't foresee being taken away.
"Plus, the public is still looking for someone to make their health care / insurance costs less," Rasmussen adds. "So regardless of the court's decision in June, brokers need to learn new ways to serve our clients because our business is NOT going back to revert to the way we did business five years ago."
Meanwhile, on Wednesday the challengers, 26 states and a small business trade group, were represented at the Supreme Court on the severability issue by Paul Clement, a former solicitor general during George W. Bush's presidency. Clement argued in written briefs that the insurance mandate was at the heart of the law and so critical to its operation that all of it must be invalidated if the requirement to buy health insurance is stripped from it.
Tom Christina, a shareholder in the employee benefits practice group of Ogletree Deakins, wrote an amicus brief on the severability issue. “Something I found during my research that I thought was very interesting,” Christina says, referring to a 2008 publication by the Congressional Budget Office that analyzed various legislative approaches to increase the percentage of Americans with health insurance coverage, “… distinguishes between a mandate and a mandate-with-penalty. [It] notes that a mandate without a penalty still has some effect because many Americans will obey a federal law even if there is no penalty for non-compliance.”
Deputy Solicitor General Edwin Kneedler argued on Wednesday on behalf of the federal government, advocating the administration's position that if the insurance mandate is struck down, then only two other provisions would have to fall.
The provisions bar insurers from refusing coverage because of a person's pre-existing medical condition and from charging more due to a person's medical history.
The court appointed an outside private lawyer, H. Bartow Farr III, to argue that all other provisions can survive without the insurance mandate.
Follow EBA’s live coverage of the action outside the Supreme Court this week inBrief, as well as on Twitter @EBAmagazine and @MarliDRiggs_EBA and on Facebook at facebook.com/EBAmagazine as we post photos, video, podcasts and more.
For even more EBA coverage on the Supreme Court’s decision and its impact on brokers:
- View a
slideshow of exclusive photos taken by EBA and sister publication Employee Benefit News capturing the action outside the Supreme Court. - NAIFA’s Diane Boyle discusses what the state exchanges final rule means for brokers in a recent
podcast. Learn how each potential ruling concerning the constitutionality of the individual mandate could affect plan sponsors and advisers alike.
(Additional reporting by By James Vicini and Joan Biskupic. Jeremy Pelofsky and Lewis Krauskopf in New York; editing by Todd Eastham)
