By STUART TAYLOR, JR., Kaiser Health News, March 18, 2012
How big is the constitutional challenge to the Obama health care law, which the Supreme Court will hear on March 26-28?
For starters, it’s big enough for the justices to schedule six hours of arguments – more time than given to any case since 1966. After all, the Affordable Care Act is arguably the most consequential domestic legislation since the creation of Medicare in 1965. It’s also big enough to attract more briefs than any other case in history. At least 170, including more than 120 “friend-of-the-court” or amicus briefs, have been filed, many of which are joined by 10, 20 or more groups of every imaginable description.
And, finally, it’s big enough to cause the justices to postpone until October half of the 12 cases they would ordinarily hear in April in order to clear time to get started on the health care opinions they’re expected to issue by late June, or possibly, early July.
What’s It All About?
The immediate issues, in the order the court will hear them, begin with the question of whether the so-called “individual mandate” – which requires that almost all Americans without coverage buy individual health insurance policies or pay fines – is ripe for adjudication now. Or must the case be deferred until 2015 because of the 1867 Anti-Injunction Act, which bars federal courts from ruling on the constitutionality of tax laws before payments are due?
After that come the arguments about what many consider the central issue: whether the mandate, which is unprecedented, should be voided because it represents an unconstitutional exercise of Congress’ powers to regulate commerce and to levy taxes.
Next is what becomes of the law’s hundreds of other provisions, covering 2,700 pages, if the mandate is unconstitutional. Are some or all of them “severable,” meaning that Congress would have wanted them to stand even if the mandate falls? For example, what about the provisions establishing tax credits to help small businesses and individuals buy health insurance and taxing large employers that do not provide full-time employees government-approved coverage?
Apart from those issues, does the law’s expansion of Medicaid violate the sovereignty of the states by effectively requiring them to spend more of their own money or forfeit all of the federal Medicaid money they now receive?
What’s the Likely Outcome?
Nobody knows. It’s clear that the court’s four more liberal members, like almost all other liberal legal experts, will find the law constitutional in all respects. It’s also clear that conservative Justice Clarence Thomas will vote to strike down much or all of the law. It’s less clear what swing-voting Justice Anthony Kennedy and conservative Chief Justice John Roberts as well as Justices Antonin Scalia and Samuel Alito will do.
Kennedy, Roberts, Alito, and (especially) Scalia – whom the government’s brief quotes five times – have all joined past decisions construing federal regulatory power very broadly. Two respected conservative federal appeals court judges, Laurence Silberman and Geoffrey Sutton, who is one of Scalia’s favorite law clerks, have upheld the law.
What Are the Major Arguments For and Against the Individual Mandate?
Defenders say that the broad constitutional power of Congress to regulate interstate commerce, and the even broader power to “lay and collect taxes,” both provide ample authority for requiring that people buy insurance as part of a comprehensive scheme to end “discriminatory insurance practices that have excluded millions of people from coverage based on medical history,” in the words of a brief by Solicitor General Donald Verrilli.