If the whole law is invalidated, Congress would be back to square one on health care. If it ever again wants to reform the system and significantly reduce the number of uninsured Americans, what avenues for reform would be available?
In her questioning, Justice Ruth Bader Ginsburg pointed out that there is a model for federal social insurance that mandates participation by all Americans and is unquestionably constitutional: Social Security. It covers everyone, whether we want to be covered or not, and it requires that we pay a special tax to fund it. In other words, despite the controversy over whether the federal government can force you to obtain private insurance, there is no doubt that it can force you to accept government-run insurance.
What about Medicaid? In a telling exchange, Justice Elena Kagan asked Paul Clement, attorney for the 26 states challenging the health-care law, whether a ruling that the expansion of Medicaid is coercive would invalidate the entire program. Clement's noncommittal response was "not necessarily."
However, once again, there is a federal insurance program that would clearly pass constitutional muster. That is Medicare, which covers the elderly and is run entirely by the federal government. Medicare gives no role to the states and therefore does not coerce them into anything. If the opponents of health-care reform prevail, Congress would be able to expand public health-care coverage only if the federal government does it alone.
If the health-care law is struck down, it's only a matter of time before Congress finds it has to address the issue again. The system cannot go on indefinitely with more than a sixth of the population uninsured and the number growing every year.
And when Congress does revisit the subject, it would be boxed in by a ruling against the current law. It wouldn't be able to rely on the private market, because that would require a mechanism to force healthy people into the risk pool. And it would have trouble relying on a federal-state partnership, because that might be considered coercive.
The only clearly constitutional large-scale reform would be a direct extension of coverage by the federal government. Is that what the law's opponents and the conservative justices really want?
If that day comes, the advocates of a single-payer, government-run system will have the last laugh. They will be able to turn to many liberals and conservatives alike and say, "I told you so." And it will be the conservative wing of the Supreme Court that made them right.
Robert I. Field is a professor of law at Drexel University's Earle Mack School of Law and a professor of health management and policy at its School of Public Health. He is the author of "Health Care Regulation in America: Complexity, Confrontation and Compromise." He can be reached at email@example.com.