Sunday, February 27, 2011

The GOP’s Anti-Health Reform Crusade Now Brought To You By Industry Lobbyists

From ThinkProgress:

"In an effort to deny more than 30 million uninsured Americans health care coverage, 26 states have filed legal action against the Affordable Care Act which passed last year. But Republican demagoguery costs money and “the [lawsuit's] cost the states have split so far amounts to $46,000.” But Florida Republican Attorney General Pam Bondi has “paid less than $6,000″ for its lawsuit. Why? Because an anti-health care lobbying group is picking up the 26-state tab"
While dubbing itself “the Voice of Small Business,” NFIB has spent the past two years “yoking itself to the GOP” while simultaneously “jeopardizing billions of dollars in credit, tax benefits and other federal subsidies” at the expense of small businesses. Affiliated with both the U.S. Chamber of Commerce and the GOP “since the Reagan era,” NFIB “is run mostly by and for Republicans” and spent 93 percent of its campaign contributions on GOP candidates. It is no wonder, then, that NFIB is happy to pay to secure the top GOP priority and equally “delighted” to see the pay off.

Thursday, February 24, 2011

Director of Massachusetts Medicaid Program Admits A Single Payer Plan Would Be Better

A [Massachusetts] official may have gone off-script last week, but what he had to say is an important contribution to the state’s ongoing debate over reining in health care costs.

Terry Dougherty, director of MassHealth, the state’s Medicaid program, was addressing a budget hearing in Boston Friday, State House News Service reports. He noted a little-known fact that runs counter to the widespread assumption that government is more wasteful than the private sector.

MassHealth, which insures nearly 1.3 million Massachusetts residents, spends just 1.5 percent of its $10 billion budget on administration, Dougherty said, while private insurers spend about 9.5 percent of their revenue on administration.

“I like the market, but the more and more I stay in it, the more and more I think that maybe a single payer would be better,” Dougherty said. Under a single payer system – like MassHealth or Medicare – the government pays health care providers directly, instead of an insurance company.

Unlike private insurance companies, Dougherty said later, at MassHealth “We don’t build big buildings. We don’t have high salaries. We don’t have a lot of marketing, which makes, to some extent, some of the things that we do easier and less costly than some things that happen in the marketplace. Overall, my point is, we have individuals who work in state government in MassHealth … who are just as smart, just as tactile, just as creative as people who work in the private sector, but they work for a lot less money.”
Source: The Milford Daily News

Wednesday, February 23, 2011

No "Free Rides" on Health Insurance, Says Blunt Federal Judge

From Andrew Cohen in The Atlantic:

"U.S. District Judge Gladys Kessler didn't just endorse the constitutional legitimacy of the Patient Protection and Affordable Care Act on Tuesday evening. She used her 64-page ruling to answer some of the most basic criticisms of the new federal health care law. And she was as blunt in its defense as two of her colleagues on the federal trial bench, in Florida and Virginia, have been in striking down the contentious measure."

In a footnote, Judge Kessler wrote: "To put it less analytically, and less charitably, those who choose -- and Plaintiffs have made such a deliberate choice -- not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives."

By playing the "free ride" card, and by suggesting that those who do not purchase health insurance are making irresponsible choices that eventually harm others, Judge Kessler is reminding her readers that the dense legal issues involved in all of these cases have as their backdrop the nation's colossal health-care mess. The quote is a very pointed and unusual expression of official frustration (no wonder it's in a footnote) and it speaks not to the lawyers and the judges who will ultimately determine the fate of the new law, or to the politicians who created it in the first place, but to all the Americans out there who refuse to buy health insurance in the name of federalism and the 10th Amendment.

Then, later in her ruling, as if her initial point were not clear enough, Judge Kessler wrote: "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality."

Here we have a direct shot across the bow of the good ship Vinson, as in U.S. District Judge Roger Vinson, the Reagan appointee who last month tossed out the health-care law in its entirety. At the time, Judge Vinson wrote (PDF): "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power.' and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended"
Expanded Medicare for All - Single Payer, would have been so much easier - and cheaper....

Tuesday, February 22, 2011

Judge tosses suit against Obama health care plan

The Associated Press:

"A federal judge on Tuesday threw out a lawsuit claiming that President Barack Obama's requirement that all Americans have health insurance violates the religious freedom of those who rely on God to protect them.

U.S. District Judge Gladys Kessler in Washington dismissed a lawsuit filed by the American Center for Law and Justice, a Christian legal group founded by evangelist Pat Robertson, on behalf of five Americans who can afford health insurance but have chosen for years not to buy it."

Charles Krauthammer Admits Single-Payer is the Way to Universal Health Care

During an interview with Susan Martin of the St. Petersburg Times, Charles Krauthammer was asked about health care reform:

Susan Martin: Besides being a commentator, you are a medical doctor who criticized health care reform as a “2,000-page bill that will generate tens of thousands of pages of regulations.” Isn’t that a great argument for the simplicity of Canadian-style universal health care?
Charles Krauthammer: It is. But it seems to me there are two choices. We have the best medical care in world but it is the most expensive and we waste a lot. What you need to do is reduce the complexity and inefficiency. If we can’t get it right, we’re eventually going to a single-payer system. At least it doesn’t have this incredible, absurd complexity of ObamaCare. It’s the worst of the worst. It has the complexity of our (present) system and doesn’t give the universal coverage of single payer.
Dr. McCanne from Physicians for a National Healthcare Program points out, in response to Krauthammer's remark:
It’s not that we don’t understand the efficiency and effectiveness of single payer; we clearly do. The opposition has been primarily from those who, on an ideological basis, oppose any role of government in health care, other than as a safety net for the indigent. But even their icon of liberty, Friedrich Hayek, stated in his classic, The Road to Serfdom, “Nor is there any reason why the state should not help to organize a comprehensive system of social insurance in providing for those common hazards of life against which few can make adequate provision.”

The logic for single payer is there, and there is no longer any reason to perpetuate the ideological divide. The conservatives need to revisit Friedrich Hayek, and the liberals need to review again the tenets of social justice, perhaps beginning with Article 25 of The Universal Declaration of Human Rights. Once we get our respective camps in order, we should find that we have a common meeting ground.

Saturday, February 12, 2011

Gov. Peter Shumlin: The man who'd bring single-payer health care to Vermont

From Washington Post's Ezra Klein:

Peter Shumlin, the newly elected governor of Vermont, has a plan for health-care reform: Rather than repeal it, he wants to supercharge it. His state will set up an exchange, and then, as soon as possible, apply for a waiver that allows it to turn the program into a single-payer system. You can read a summary of the plan here (Word file). I spoke with Shumlin this morning, and a lightly edited transcript of our conversation follows.

Ezra Klein: The report (PDF) prepared by Dr. William Hsiao offered three options for Vermont: single payer, a strong public option and a form of private-public single payer. My understanding is that you're backing the third option. What separates it from a traditional single-payer system?

Peter Shumlin: Single payer means something different to everyone. The way I define it is that health care is a right and not a privilege. It follows the individual and not the employer. And it’s publicly financed. The only difference between single-payer one and single-payer three in Hsiao's report is that in single-payer three, the actual adjudication of payment is contracted to an existing insurance entity. So the state doesn't have to set up a new bureaucracy to run it. His modeling suggests that’d be more economical. It's a minute difference.

EK: And why go to a single-payer system at all? 

PS: In Vermont, this is all about cost containment. There are 625,000 people in Vermont. We were spending $2.5 billion on health care a decade ago. Now we’re above $5 billion. And we project we’ll be spending a billion dollars more in 2014. This is where everyone has failed in health-care reform. And this will go after three of our main drivers of costs.

First, Vermont spends 8 cents on every dollar on administrative costs, just chasing the money around. That’s a huge waste of money. Second, we’ll use technology to conquer waste. You'll get a Vermont medical card, and everyone’s medical records will be on that card, so you’ll go into a doctor’s office and they’ll know what the last doctor did to you. That helps avoid duplication of services. And the last piece, the most challenging, is remaking the payment system so providers are paid for making you healthy, not for doing the most procedures.

EK: Single-payer systems often lose on the ballot and in the legislature. No state has successfully managed to pass one into law, much less implement it. And the objection that usually stands in the way of these projects is that I'm happy with my health-care insurance, and I don't trust the government to create something new and put me into it. How do you answer that? 

PS: I suspect I’m the only politician in America who won an election in this last cycle with TV ads saying I was going to try to pass the first single-payer system in America. This election was a confirmation of my judgment that Vermonters are tired of enriching pharmaceutical companies and insurers and medical equipment makers at the expense of their family members. The reality in Vermont is that there are not very many Vermonters who are happy with the current system. We’re losing our rural providers. Our small hospitals are struggling. And Vermonters are lowering their coverage and paying more and more for it.

EK: How will the funding work? Right now, a lot of money comes from employers. What happens to their share?
PS: Where health care has failed is in designing a cost containment mechanism that works. That’s the really hard part of our job. So I’m asking us to spend the next 12 months designing the tools for cost containment. Once we do, we'll figure out how to structure the way we pay for it.

EK: One of the things you asked of Dr. Hsiao was to preserve provider incomes. How can you do that while cutting costs? At some point, doesn't lower spending also mean fewer doctors or hospitals or lower incomes?

PS: The reason Vermont has the opportunity to be the lab for a different kind of change is that we don’t have a lot of high-paid physicians in Vermont. We have a lot of low-paid physicians. We have rural providers who’re making less than they did when they graduated from medical school. Our cost driver is not that we have a lot of physicians running around in Mercedes-Benzes. It’s waste in the system.

EK: How will this interact with other systems? Let's say I have Kaiser Permanente. I come to Vermont and break my leg. What happens?

PS: Nothing different than what happens right now. You’d go to one of our providers' offices, and they’d bill Kaiser for that one. No different than if you break a leg in France or Switzerland. Radical as this seems to Americans, the rest of the world has figured this out and gotten it right. We keep getting it wrong, and we’re paying for it.

Thursday, February 10, 2011

Kathleen Sebelius: How the Affordable Care Act empowers states

The Affordable Care Act puts states in the driver's seat because they often understand their health needs better than anyone else - and that is why it is so frustrating to hear opponents of reform falsely attack the law as "nationalized health care."

The truth is that states aren't just participating in implementation of the law; they're leading it.
Read the rest...

Health Insurance Companies Selling Lower Cost Polices that Exclude Payment for Care at the Mayo Clinic

Health insurance shoppers are considering a new version of an old discount strategy that can be summed up in three words: Hold the Mayo.

Bloomington-based HealthPartners last year started marketing health plans that feature a network of hospitals and doctors that doesn't include the Mayo Clinic. In exchange for not having access with low co-payments to the iconic Rochester, Minn., clinic, subscribers pay lower premiums when they select a HealthPartners plan with Mayo as an out-of-network option.

Last year, Eagan-based Blue Cross and Blue Shield of Minnesota also started emphasizing health insurance products for individuals in which Mayo isn't in the network of providers.

Mayo has been celebrated nationally for providing high-quality and low-cost health care, but health insurance brokers say the local reputation is different as far as cost goes.

"Mayo is cheap only compared to other national care centers, but in general is a higher-cost center when compared to its Minnesota peers," said Christopher Schneeman, a health insurance broker with SevenHills Benefit Partners in St. Paul.

After Voting To Repeal Health Care, GOP Members Without Coverage Fear Cost To Family Members

House Republicans have pledged to repeal and/or defund the health care law. Rep. Michele Bachmann (R-MN) even adopted the effort as her sole “motivation in life.” But, for at least 16 GOP lawmakers, the reality of the party’s position is coming home to roost. These Republicans, “many of whom were swept into office fueled by tea party anger over the health care law,” are now facing the same expensive, unforgiving health insurance market as middle-class Americans the GOP wantonly abandoned
GOP lawmakers have struggled to explain why they deserve government-subsidized health care while ordinary Americans don’t. Rep. Aaron Schock (R-IL) said he accepted federal health care because he was “actually lowering” premiums for older lawmakers. When asked whether he’d turn down taxpayer benefits, Rep. Bill Posey (R-FL) actually said, “I don’t know. Am I a federal employee?” And Rep. Michael Grimm (R-NY) offered a more blunt — and revealing — response: “What am I not supposed to have health care?…God forbid I get into an accident and can’t afford the operation. That can happen to anyone.”
Read it all at Think Progress...

Tuesday, February 08, 2011

House seen blocking healthcare funds


The U.S. House of Representatives is likely to vote to block funding for President Barack Obama's signature healthcare overhaul when it takes up a budget plan next week, House Republican Leader Eric Cantor said on Tuesday.

Wednesday, February 02, 2011

Effort To Repeal Health Care Law Fails In Senate

An effort spearheaded by Republicans to repeal the new health care law collapsed Wednesday evening after the Senate refused to ignore its adverse impact on the deficit.

By a vote of 47-51, the Senate sustained an objection to the legislation on the grounds that it does not comply with congressional budget rules. Because a full repeal of the law is projected to increase the deficit, waiving that point of order would have required 60 votes.

But even if Democrats had allowed a straight up or down vote on the amendment, it likely would have failed. No Democrats voted with the GOP to remove the objection, giving them fewer than the 51 they'd need to successfully repeal it. Republicans -- and, really, everyone else -- have been expecting this outcome for months. And while this blunts their head-on efforts at repeal, they've always expected that their best chances to destroy or chip away at the law will come either via the courts, spending bills or amendments to the law meant to weaken it.

One such effort, driven by Sens. Lindsey Graham (R-SC) and John Barrasso (R-WY) would allow states to opt out of the law's key provisions, which, they say, would cause the overall policy to collapse.

Top Democrats have suggested that if Republicans keep forcing votes on full repeal, they'll put the legislation on the floor, and during the debate, force votes on amendments to exempt popular aspects of the law.

Republicans Hide Health Care Law Benefits From Their Constituents

Two days after a Republican Florida federal court judge voided the entire health care law, the multi-front Republican war against it continues in the Senate, where members will vote today on whether or not to just repeal it, full stop.

Simultaneously, Republican members are trying to sneak grenades into the heart of the law, crafting modifications which they admit are meant to destroy it.

But that presents them with a conundrum when they head back to their states and districts and face constituents who stand to benefit from the law right now -- seniors who are entitled to free checkups, and young adults, who can now stay on their parents' insurance until they turn 26, for example. Republicans can chose to help those constituents navigate the law -- answer their questions constructively, encourage them to seek those benefits -- or they can let their political agendas interfere.


9 New Laws in the GOP's War Against Women

Shaming women is more important to Republicans than tackling the economic crisis or any of the myriad problems facing Americans. The consequences for women's health are dire.
Read and weep - AlterNet:

The Affordable Care Act and the Courts: What the Experts Are Saying

From the White House:

On Monday, Judge Roger Vinson issued a ruling in a case challenging the constitutionality of the Affordable Care Act. The ruling comes after legal action in cases regarding the law in courts across the country. Twelve federal judges have already dismissed challenges to the constitutionality of the health reform law.  Two federal judges – in the Eastern District of Michigan and Western District of Virginia – have fully upheld the law, and one federal judge in the Eastern District of Virginia ruled against the individual responsibility provision but declined to bar full, continuing implementation.   
The decision issued on Monday is one district court decision, and we believe it to be very wrong.   The Department of Justice has made clear that it is reviewing all of its options in responding to this case, as it does in all cases. Implementation will continue.
Legal experts agree with our assessment of Judge Vinson’s ruling. Here’s what they are saying about the ruling and the case:
Boston College Law Professor Brian Galle:
“The ACA and its accompanying incentives to buy insurance overcome a collective action problem among states.  Thus, the ACA is easily distinguished from the court's parade of broccoli horribles; even if one thought that the federal government should deal only with uniquely national problems, the ACA easily meets that standard.”

David Engstrom, Stanford Law School Faculty Member:
“The issue that the court has ruled on has been specifically contradicted by two other district courts. So, the idea that the Obama administration should somehow stand down from implementing the act, based on a fourth district court, doesn't have any basis in law.”

NYU Constitutional Law Professor Rick Hills:
“Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate:

• It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61);

• The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63). Yet...

• "[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Judge Vinson never presents even the simulacrum of an argument: Instead, he engages in hand-waving.”

“I think Judge Vinson’s argument on the Necessary and Proper Clause is not persuasive…Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.”

“Judge Vjavascript:void(0)inson appeared to base the total nonseverability decision partly on what he took to be Congressional intent.… Judge Vinson's approach ought to be especially unappealing to the Supreme Court's “textualists,” who don't even like to speculate about what Congress subjectively intended by the language it enacted.  How much worse it should be to speculate about what Congress might have done if it had known that a provision it enacted would subsequently be found invalid.”

Tuesday, February 01, 2011

Wisconsin attorney general: "Health care law is dead"

Greg Sargent's blog:

"The office of Wisconsin Attorney General J.B. Van Hollen, one of the states suing to overturn the Affordable Care Act, sends over this statement flatly declaring the law 'dead' for his state unless it's revived by a higher court, and asserting that this relieves state government of any and all its responsibilities to implement the law:"

This hints at a new line of criticism Dems can use, should other state governments do as Wisconsin is doing. The Affordable Care Act has already resulted in nearly $40 million in federal grant funding to Wisconsin. Now that the law is "dead," will Wisconsin return the money or rebuff any other federal grant money? Will other state governments declaring the law dead do the same? If so, how much money do they stand to lose? How will this impact their consistuents? It's a pretty worthwhile line of inquiry.

How the Media Has Covered the Four Rulings on the Affordable Care Act

Steve Benen takes a look at some of the media coverage of the four key rulings on the Affordable Care Act, and finds that the two rulings pronouncing the law unconstitutional received far more attention than the two upholding it.

Four federal district courts have heard challenges testing the constitutionality of the Affordable Care Act. Two judges concluded the law is legally permissible, two came to the opposite conclusion.

But it occurs to me the public has heard quite a bit more about the latter than the former. Indeed, it seems as if the media largely ignored court rulings that bolstered the arguments of health care reform proponents, while making a very big deal about rulings celebrated by conservatives.

Washington Post
* Steeh ruling (pro-reform): A2, 607 words
* Moon ruling (pro-reform): B5, 507 words
* Hudson ruling (anti-reform): A1, 1624 words
* Vinson ruling (anti-reform): A1, 1176 words

New York Times

* Steeh ruling (pro-reform): A15, 416 words
* Moon ruling (pro-reform): A24, 335 words
* Hudson ruling (anti-reform): A1, 1320 words
* Vinson ruling (anti-reform): A1, 1192 words

Associated Press
* Steeh ruling (pro-reform): one story, 474 words
* Moon ruling (pro-reform): one story, 375 words
* Hudson ruling (anti-reform): one story, 915 words
* Vinson ruling (anti-reform): one story, 1164 words

* Steeh ruling (pro-reform): one story, 830 words
* Moon ruling (pro-reform): one story, 535 words
* Hudson ruling (anti-reform): three stories, 2734 words
* Vinson ruling (anti-reform): four stories, 3437 words

Source: The Washington Monthly

Rep. Wasserman Schultz: Bill Redefining Rape To Prevent Abortions Is ‘A Violent Act Against Women’

House Republicans wasted no time in declaring their legislative priorities for the 112th Congress. The first: repeal health care for millions of Americans. The second: redefine rape. A day after repealing health care, Rep. Chris Smith (R-NJ) introduced the No Taxpayer Funding For Abortion Act, a bill that would not only permanently prohibit some federally funded health-care programs from covering abortions, but would change the language exempting rape and incest from rape to “forcible rape.”

By narrowing the Hyde Amendment language, Republicans would exclude the following situations from coverage: women who say no but do not physically fight off the perpetrator, women who are drugged or verbally threatened and raped, and minors impregnated by adults. As the National Women’s Law Center’s Steph Sterling puts it, this new standard of force “takes us back to a time where just saying no was not enough.”

And yet, 172 Republicans — including sixteen women — and lone Democrat Rep. Daniel Lipinski (IL), chair of the House Pro-Life Caucus — readily support the new standard. Appalled at such a cavalier attack on women’s rights, one House member is not taking the change lightly. Rep. Debbie Wasserman Schultz (D-FL) “fiercely denounced” her conservative colleagues for this “absolutely outrageous” dilution of victims’ rights. Enraged at the suggestion that “there is some kind of rape that would be okay,” Wasserman Schultz told The Raw Story that she considers the bill itself to be “a violent act against women”:
“It is absolutely outrageous,” Wasserman Schultz said in an exclusive interview late Monday afternoon. “I consider the proposal of this bill a violent act against women.”[...]

“It really is — to suggest that there is some kind of rape that would be okay to force a woman to carry the resulting pregnancy to term, and abandon the principle that has been long held, an exception that has been settled for 30 years, is to me a violent act against women in and of itself,” Wasserman Schultz said.
More at Think Progress

Yet another gaping hole in Vinson's ruling?

Greg Sargent on Judge Vinson's ruling:

NYU law professor Rick Hills finds what looks like another gaping hole in Judge Vinson's ruling yesterday that the individual mandate -- and by extension the entire Affordable Care Act -- is unconstitutional.

Judge Vinson writes on page 62 of the ruling that the goal of "excluding or charging higher rates to people with pre-existing conditions" is clearly "legitimate" and "within the scope of the Constitution." He clarifies this by indicating that the means to that end must not be inconsistent with the "spirit" of the Constitution. But that end, he says, is valid.

Then, on page 63, Vinson writes that the defendants are right to assert that the individual mandate is "necessary" and "essential" to realizing that same end.

And yet, Vinson then goes on to conclude that "the individual mandate falls outside the boundary of Congress' Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Which prompts this rejoinder from Professor Hill:
Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?
Now, in case you're tempted to dismiss this argument as coming from a pointy-headed east coast liberal professor, please note that conservative legal writer Orin Kerr has reached a similar conclusion about this part of Vinson's decision.

Kerr argues that there's nothing in Supreme Court caselaw that justifies Vinson's conclusion that the individual mandate falls "outside the boundary" of the commerce clause, and bluntly characterizes Vinson's argument here as the "weak link" in his decision.


UPDATE, 3:03 p.m.: Let me try to be a bit clearer about Kerr's argument. He's saying that Vinson's contention that the means (the mandate) to a legitimate end is outside the boundary of the commerce clause, and therefore not legitimate, is based on "first principles," and not on existing Supreme Court caselaw.

That seems to dovetail with Professor Hill's argument: That Vinson's contention that the mandate is not legitimate, even though it's necessary to accomplish a constitutionally legitimate end, is wholly arbitrary.

What happens if conservatives succeed in undermining the ACA?

From Ezra Klein:

The legal theory currently in vogue in conservative circles holds that the Constitution's vision of "a central government with limited power" -- to use Judge Vinson's phrase -- permits the government to establish a single-payer health-care system that every American pays into through payroll taxes and that wipes out the private insurance industry but forbids the government from administering a regulated market in which individuals purchase private insurance plans and pay a penalty if they can afford coverage but choose to delay buying it until they're sick.

There's a chance conservatives will come to seriously regret this stratagem. I think it's vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process -- as that would sidestep both legal attacks and the supermajority requirement.

The resulting policy isn't too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy (which is how the House originally wanted to fund health-care reform). That won't get us quite to universal health care, but it'll get us pretty close. And it'll be a big step towards squeezing out private insurers, particularly if Medicaid and Medicare are given more power to control their costs.