WASHINGTON – Covering all the bases ahead of a momentous Supreme Court ruling, the Obama administration plans to move ahead with major parts of the president's health care law if its most controversial provision does not survive, according to veteran Democrats closely involved with the legislation.
Even if the requirement that nearly every U.S. resident have health insurance is declared unconstitutional, the remaining parts of the law would have far-reaching impact, putting coverage within reach of millions of uninsured people, laying new obligations on insurers and employers, and improving Medicare benefits even as payments to many service providers get scaled back.
The White House says President Barack Obama is confident the whole law will be upheld when the court issues its ruling in the next week or two, but officials will be ready for any outcome.
"We do believe it's constitutional, and we ... hope and expect that's the decision the court will render," senior adviser David Plouffe said Sunday on ABC. "We obviously will be prepared for whatever decision the court renders." Administration officials have not wanted to discuss contingency plans to avoid creating the impression that the president is preparing for a high court rebuke.
Nevertheless, the Obama administration will move ahead to implement major elements of the law if the individual coverage requirement is struck down, two senior Democrats told The Associated Press. One is a leading Democrat familiar with the administration's thinking, the other a high-level Capitol Hill staffer. The two Democrats spoke on condition of anonymity to avoid appearing to be out of step with the administration's public stance.
Because the law's main coverage expansion does not begin until 2014, there would be time to try to fix serious problems that losing the individual coverage requirement may cause for the health insurance industry.
Surviving parts of the law would "absolutely" move ahead, said the congressional official. A Congress mired in partisan trench warfare would be unable to repeal or amend what's left of the law, allowing the administration to advance. Much of the money for covering the uninsured was already provided in the law itself.
"Legislatively we can't do a thing, and we are going to move full speed ahead [with implementation]," the official said.
How the Supreme Court will decide is unclear. It may uphold the law, strike it down entirely or do something in between. Skeptical questioning by the court's conservative justices during oral arguments this spring has fueled speculation that the court may invalidate the so-called individual mandate.
Opponents say the requirement that individuals have coverage is unconstitutional, that the federal government can't tell people to obtain particular goods or services.
Supporters say the mandate is a necessary component of a broader scheme to regulate health insurance, which is well within the powers of Congress. By requiring people to carry health insurance or pay a fine, the law seeks to broaden the pool of people with coverage, helping to keep premiums affordable.
If the mandate is struck down, that would still leave in place a major expansion of Medicaid, the federal-state safety net program for low-income people.
The Medicaid expansion was originally estimated to account for about half the more than 30 million people slated to get coverage under the law. Without a mandate, the number would be smaller but still significant.
Federal tax credits to help middle-class people buy private health coverage would also survive, as would new state-based insurance markets.
Such subsidies have never previously been available, and millions are expected to take advantage of them, whether or not insurance is required by law. Still, it could be tricky to salvage the law's full blueprint for helping middle-class uninsured people.
Overturning the mandate would have harmful consequences for the private insurance market. Under the law, insurers would still have to accept all applicants regardless of health problems, and they would be limited in what they can charge older, sicker customers.
As a result, premiums for people who directly buy their own coverage would jump by 15 percent to 20 percent, the Congressional Budget Office estimates. Older, sicker people would flock to get health insurance but younger, healthier ones would hold back.
To forestall such a problem, the administration asked the court – if it declares the mandate unconstitutional – to also strike down certain consumer protections, including the requirement on insurers to cover people with pre-existing health problems. That would mitigate a damaging spike in premiums.
Whether or not the court goes along with that request, more work would be needed to find alternatives to a federal mandate. That could provide an opening for state officials, as well as major insurance companies, to join in finding workable substitutes for the mandate. Congressional approval would likely be needed.
Without the individual requirement, some 14 million people would still get coverage, budget office estimates suggest. Supporters of the law point out that's still a lot of people.
