“When the US Supreme Court begins examining the constitutionality of President Obama’s health-care reform law on March 26, there will be more at stake in the unfolding drama than the judicial assessment of Mr. Obama’s signature legislative achievement in the White House.
The case thrusts the high court center stage in a historic constitutional showdown that could define the scope of congressional power for generations. It also threatens to draw individual justices into a heated political debate that might hinder or advance the president’s own reelection effort.
In an extraordinary six hours of argument over three days, the justices will take up four separate legal issues raised by the Patient Protection and Affordable Care Act (ACA) of 2010, including the most controversial: a mandate that every individual purchase a government-approved level of health insurance or pay a penalty.
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Many legal experts initially dismissed as ridiculous the core constitutional challenge being lodged against the health-care reform law, yet the case is now poised to produce a potential landmark decision – regardless of whether the law is upheld or struck down.
Three federal judges have struck down the so-called individual mandate as unconstitutional, while three others have upheld it. At the appellate level, the Atlanta-based 11th US Circuit Court of Appeals struck it down, while the Sixth US Circuit in Cincinnati and the District of Columbia Circuit in Washington both upheld it. The Richmond, Va.-based Fourth Circuit dismissed the lawsuit without reaching the individual mandate issue.
Among the challenging plaintiffs at the high court will be the State of Florida, joined by 25 other states, the National Federation of Independent Business, and several individuals. More than 150 legal briefs have been filed by several hundred lawyers, among them an elite group of advocates set to argue the case.
Public opinion is tilted against the individual mandate, with 51 percent saying it should be declared unconstitutional, and 28 percent saying it should be upheld, a Kaiser Family Foundation poll found.
As if the health-care debate wasn’t divisive enough, underlying issues in the case mirror broader flash points between Democrats and Republicans, and liberals and conservatives – and point up the massive political, economic, social, and legal stakes in the case.
The crux of the case: congressional reach
In broad terms, the president and his supporters favor a central government strong enough to shape economic markets to advance their view of the collective good. They say the Constitution’s Commerce Clause, which gives Congress the authority to pass laws regulating commerce and economic activity among the states, supports the individual mandate.
Republicans, who want a smaller, limited national government, say requiring an individual to purchase something is not legitimate Commerce Clause regulation.
Republicans attack the health-care law as a job killer and as an anchor around the neck of a still-wheezing economy. Democrats brush the attacks aside and defend the measure as a necessary reform to make health care more affordable to an estimated 50 million uninsured Americans.
The centerpiece of the law is its requirement that every American purchase health insurance.
This is a reasonable regulation, the president and other supporters say, because virtually everyone will, at some unpredictable moment, require medical care and hospitalization.
“No one is more than an instant from needing health care,” Solicitor General Donald Verrilli wrote in his brief to the court.
Opponents attack the individual mandate as a solution to a problem of Congress’s own making. The mandate, they say, is being used to assemble a broad enough pool of healthy Americans to underwrite expensive provisions in the bill – like the ban on insurance companies charging higher premiums for those with costly preexisting medical conditions.
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They also say the mandate marks a sharp departure from traditions of American liberty and the Founders’ concept of shared federal-state power.
They say if the federal government can simply order Americans to buy a product – like insurance for health care, or broccoli to support a healthy diet, or a Chevy to bail out the US auto industry – there is nothing Congress can’t order citizens to do.
“The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse,” writes Washington lawyer Paul Clement in his brief to the court on behalf of Florida and 25 other states. “It is a revolution in the relationship between the central government and the governed.”
Two views of ‘individual mandate’
Solicitor General Verrilli rejects such dire warnings. He says the minimum coverage provision is part of a comprehensive regulatory scheme that is necessary to keep insurance rates affordable for all.
Without the mandate, uninsured individuals would wait until they were sick to purchase insurance, or they might continue to receive uncompensated care and thus continue to shift the cost to existing policyholders, the law’s supporters say.
Opponents of the law argue that the ACA seeks to regulate the inactivity of non-policyholders by characterizing the decision not to obtain health insurance as a form of economic activity that can be regulated by the federal government because it ultimately affects the interstate health insurance market.
“Forcing people into commerce does not regulate commerce,” Washington lawyer Michael Carvin wrote in his brief.
Mr. Carvin suggests the individual mandate is being used by the government to conscript healthy individuals into the system to help pay for the reforms.
“The mandate’s primary purpose and effect is not to regulate uninsured individuals engaging in harmful economic activity, but to compel the uninsured into engaging in economic activity that is harmful for them but beneficial to third parties,” he wrote.
Without the mandate, the ACA’s requirement that private insurance companies not deny coverage based on a patient’s prior medical history would cause a substantial increase in insurance rates. To offset that increase, the law seeks to have young, healthy Americans buy a required level of health insurance – anticipating that most of them will not need it. The new premiums would help pay the extra cost of expanding insurance coverage to low-income Americans and those with expensive preexisting medical conditions.
Government lawyers say that medical insurance is a necessity of American life, so it is acceptable for the government to require everyone to buy it.
“This is classic economic regulation of economic conduct,” Verrilli wrote in his brief. “Congress has wide latitude when deciding how best to achieve its constitutional objectives,” he said.
The Constitution entrusts such policy choices to the democratically accountable branches of government, and the courts should respect those choices, the solicitor general said.
Mr. Clement counters that the mandate represents an unprecedented and unbounded power grab by the federal government. “If Congress really had this remarkable authority, it would not have waited 220 years to exercise it,” he said.
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Specifically at issue in the case is whether Congress acted within its constitutional authority when it passed the ACA.
Under the Constitution, the federal government is limited to regulating only certain areas dealing with national issues.
From the 1940s to the ’90s, the Supreme Court embraced a broad interpretation of Congress’s Commerce Clause authority, allowing the government to dramatically extend its reach into areas that were once the exclusive domain of the states. But in the 1990s, the court began to enforce tighter limits on Congress’s power to legislate under the clause.
What makes the ACA case hard to predict is that these decisions did not uniformly restrict the commerce power, and most were decided by a sharply divided court.
It is with that backdrop that the ACA arrives at the high court. Supporters emphasize prior legal precedents embracing a broad reading of the authority to regulate commerce. Opponents point to the few examples where the Supreme Court has pushed back against congressional attempts to expand its commerce power.
Both sides have precedents to cite, but it’s not clear whether the court is prepared to endorse the expansive commerce power advocated by the administration. It is equally unclear whether a majority of justices will embrace the more restrictive approach favored by the challenging states.
Other issues to be decided
In addition to the individual mandate issue, the high court has agreed to decide whether lawsuits challenging the ACA should be dismissed under the Anti-Injunction Act, which bars courts from hearing lawsuits challenging a federal tax.
The court has also agreed to decide whether the ACA’s significant expansion of Medicaid at the state level amounts to unconstitutional commandeering of states to carry out the work of the federal government without the states’ assent.
The final issue the court is expected to examine is whether the entire ACA, which has measures not linked to the individual mandate, or just a portion of it would need to be struck down should the high court decide that the individual mandate was unconstitutional.
The health-care appeal involves three cases: National Federation of Independent Business v. Sebelius (11-393), Department of Health and Human Services v. Florida (11-398), and Florida v. Department of Health and Human Services (11-400).
Decisions are expected by late June.”