Over the next three days, the Supreme Court will hear six hours of oral arguments in three cases all related to the Affordable Care Act, commonly referred to as “Obamacare.” Six hours is the most argument time the Court has dedicated to one issue in over 40 years, and the decisions handed down could have a profound effect not just on the future of healthcare in America but also issues of federalism, judicial oversight, and executive power.
Many know the basic provisions of the ACA, but if you need a quick tune-up I’d recommend teacher-approved primary source Wikipedia. The goal is to get almost everyone in the country health insurance through individual mandates, insurance exchanges, an expansion of medicare, and additional mandates on insurance providers. The most controversial provision in the bill, and the one that most will be watching closely in oral arguments on Tuesday, is the idea that government can force an individual to purchase some sort of health insurance and fining that individual if they do not. This has been the central point in the debate over the Act’s constitutionality, but it is only one of four issues the Court will be considering over the next three days.
Issue #1: Can the Supreme Court even decide on the Act’s constitutionality?
This is probably the quietest issue at stake but one that ultimately will allow the Court to rule on the others. A federal law passed in 1867 called the Tax Anti-Injunction Act essentially says that no one can sue the government to keep them from collecting a tax before they’ve actually collected it. Lower courts have ruled on both sides of this issue, which is why the Supreme Court will consider this aspect. If the court decides that the fine imposed by not buying insurance is actually a tax, one which no one has yet paid and will not pay until 2014, then the Tax Anti-Injunction Act would be in play and the individual mandate could not be challenged at present time. Neither the defenders nor the challengers would like the Court to rule in this manner, and both sides would like to see the Court set this issue aside and focus instead on the merits of the act. The fact that the Court has decided to hear this issue means they are considering it relevant enough to merit oral argument. This will be argued for 90 minutes on Monday the 26th. Due to the nature of the hearings, the balance of the issues will be heard as if the challengers have standing and the Court has jurisdiction over ACA-related matters at current time.
Issue #2: Is the individual mandate and associated penalty constitutional?
For many, the constitutionality of the individual mandate is the most important aspect of this challenge; 80 briefs were filed to the Court by non-litigant parties on this issue alone. This part of the ACA says that starting in 2014, every individual must have health insurance coverage or face a fine up to $3,000 to be paid along with federal income taxes. The government maintains that the individual mandate is solely Congressional regulation of commerce – something they’ve done since the US was founded and a regulation that courts at all levels have confirmed. Healthcare makes up about 1/6th of the US economy, so it’s certainly big enough to warrant Congressional regulation. They also argue that individuals who do not have health insurance and require treatment are essentially covered by others in the insurance pool. Higher premiums and fees on those with insurance essentially pay for those without it. Challengers argue that the individual mandate reaches far beyond regulation of commerce and actually compels individual citizens to engage in commerce against their will. They argue that allowing the federal government to compel individuals to buy health insurance undermines both personal liberty and the concept of federalism. On many constitutionality questions, a heavy portion of grey area exists where Justices can pick and choose issues on which to craft an opinion. This question seems to be an either/or proposition. It will be argued for two hours on Tuesday the 27th.
Issue #3: If the individual mandate is struck down by the Court, what will be the effect on the rest of the ACA?
The issue of “severability” of the individual mandate from the rest of the ACA is also incredibly important, because striking the individual mandate without considering its effect on the rest of the law could leave everyone’s legal hair in knots. When a court finds a law unconstitutional, typically they will take care to strike only those portions that it deems necessary. Considering how intricately woven the individual mandate is in the 2,700 page ACA, this could be a monumental task. The Court will hear this portion as though they have decided to strike the individual mandate and rule it unconstitutional. They will then approach two distinct questions:
- Can the balance of the ACA still function without the individual mandate and work as Congress intended?
- If so, would Congress have passed the ACA as written without the individual mandate?
These seem like tricky questions because they are. Asking nine people to guess the hypothetical feelings of 435 members of the House and 100 member of the Senate is not easy. To decide on this portion of the case without knowing if it’s even relevant (again, if the Court decides to uphold the mandate this point is largely moot) adds an additional layer of uncertainty. When the first lawsuit against the ACA was filed in Pensacola, FL, US District Judge Roger Vinson determined that the individual mandate was unconstitutional and was so interwoven with the remainder of the law that it should be struck in its entirety. The ruling was appealled to the Eleventh Circuit which also ruled the individual mandate unconstitutional but said Congress would’ve intended that portion to be severable from the remainder, leaving most of the ACA intact. This issue will be argued for 90 minutes on Wednesday the 28th.
Issue #4: Does the Medicaid expansion included in the ACA coerce state participation in an unconstitutional manner?
As a part of the ACA, federal spending on Medicaid will increase by $454 billion in this decade, with states likely shelling out an addition $20 billion or more (some say this number will be closer to $40 or $50 billion). The federal government will pay for 100% of the expansion starting in 2014, but by 2020, states will be required to pay 10% of the newly expanded costs on their own. Already cash-strapped states say they can’t afford the additional cost, and have no way of avoiding them. States that opt out of the expansion risk losing ALL of their federally-allocated Medicaid funds. Challengers argue that the law coerces states to participate in a federal program which violates any and all measures of Federalism intended in the Constitution. They argue that this expansion fundamentally changes Medicaid from a state-run and administered program funded largely by the federal government into a federally-run and administered program funded partially by the states. The government argues that the Medicaid expansion in the ACA doesn’t change the fundamental nature of the relationship and only requires that more people be eligible for Medicaid coverage. They contend that granting a notion of coercion as unconstitutional would open the door for practically every federal programs administered at the state level and would undermine congressional authority. This issue will be argued for one hour on Wednesday the 28th.
The Court will face each of these issues as independently as possible, but ultimately all four are intertwined in a way that few cases in the Court’s recent history have been. The Court could rule that the entire challenge lacks standing due to the Tax Anti-Injunction Act, and not rule on any other portion of the case. They could confirm that the individual mandate is constitutional or rule that it’s unconstitutional and strike only that portion from the ACA, or they could strike a larger portion of the ACA, or they could strike all of it. Finally they could rule that the federal government forcing states to pay for federally mandated programs is coercive in general, or that just this instance is coercive, or is never coercive in any case. All of these questions point to the importance of this case and the far-reaching impact the Court’s decision may have.
What will ultimately happen? Many legal experts believe that the Court’s four liberal justices – Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg – will vote to uphold the provisions of the ACA in question. Almost all also believe that the Court’s most consistently conservative voice, Clarence Thomas, will vote to strike the law down at each stage. Experts are far less certain about Justices Alito and Scalia. While both are noted strong conservative voices, they take the separation of powers seriously and might see no judicial route by which to overrule Congress. Anthony Kennedy, typically thought of as the swing vote in closely divided cases, has a strong libertarian streak and has shown himself to be an ardent supporter of federalism. Someone with those conservative principles would hardly be expected to be a champion of the individual mandate or the Medicaid expansion, yet he too might be bound by the Court’s main apolitical aim: determining the constitutionality of a law passed by Congress.
Chief Justice Roberts, often a member of the Court’s more conservative wing, might very well end up tipping the balance in favor of upholding the ACA’s constitutionality. As Chief Justice, Roberts could nominate himself to craft what may be the most lasting and important decision of his tenure at the Court. Authoring the majority opinion would allow his voice could be the one to shape the Court’s future on questions of federal power and congressional regulation for decades. If he feels that Kennedy will vote to uphold the law, the Chief Justice’s reputation as a coalition-builder would take a huge hit by being the fourth vote of a four-justice minority.
If I had to guess, I’d say the ACA will be upheld by the Court by a vote of at least 6-3 and possibly 8-1. Ultimately both Chief Justice Roberts and Justice Kennedy will join the Court’s more liberal wing and may possibly be joined by both Scalia and Alito on some points. I would expect there to be a number of concurring opinions on each issue which will allow the justices to leave their individual marks on this Court-defining case. The decision will have a profound effect on the course of healthcare, a huge chunk of the American economy, and the concept of federalism. It will also shape the legacy of the Roberts Court, and it could fundamentally alter a major talking point of the Presidential election in November. A decision is expected in mid-June.
