On November 14, 2011, the Supreme Court granted review to a challenge of the Patient Protection and Affordable Care Act (ACA), announcing that it would rule on fundamental questions regarding the law’s constitutionality and role in determining the authority of the states versus the authority of the federal government.1
While the 2,700-page Act addresses many different health-care related issues, the two elements that the Supreme Court will review are the “individual mandate”, which requires Americans who do not purchase a health care policy to pay a fine by January 1, 2014, and the expansion of Medicaid to a greater number of citizens, which states must comply with in order to retain their funding for Medicaid.1,2
The ACA’s individual mandate is currently at the forefront of the debate, though the Medicaid provision has also faced opposition. Conservative activists claim that the mandate is unconstitutional, while the Obama Administration contends that the mandate is supported by the Commerce Clause of the Constitution, which provides that Congress shall have the power to “regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes”.1,3,4 However, neither argument has been decisively upheld by the lower courts, creating confusion and contention. In the meantime, the individual mandate has become the most unpopular measure of the ACA, with only a 27 percent approval rating among Americans.3
Polls show that Americans are more receptive to the ACA if they do not know that failure to purchase health insurance results in a penalty fee similar to a tax.3 Basically, Americans support Obama’s health care plan so long as they do not have to pay for it. However, the government cannot fund the health care plan without incurring debt and driving the price of insurance up if Americans do not purchase insurance or pay the fine.1
Proponents of the ACA argue that the individual mandate benefits individuals because health insurance companies are required to offer affordable insurance to a greater number of people regardless of their preexisting conditions.1,4 This aspect of the mandate is especially important because people who acquire health insurance after being diagnosed with an illness are forced to pay exorbitantly high premiums they often times cannot afford, forcing them to choose between treatment and financial stability. Moreover, health insurance companies will not experience extreme losses because the premiums purchased by healthy people will offset the cost of premiums purchased by sick people.3
Nevertheless, challengers dispute both arguments, characterizing the mandate as a way for Congress to aggrandize its own power. Essentially, the argument holds that by imposing penalties on the “inactive” Americans who do not purchase health care under the umbrella of the Commerce Clause, Congress expands the Commerce Clause to the point that it can be relied upon for nearly any purpose.1
If the Supreme Court upheld the Act as constitutional, it would break away from the conservative trend set by the Rehnquist Court, which limited Congress’s power under the Commerce Clause in cases like United States v. Lopez, United States v. Morrison, and Eldred v. Ashcroft. A decision in favor of Obama’s health care plan would not only impact policy, once again affirming that the Supreme Court’s powers go beyond mere interpretation of the Constitution, but also signify a change in both its treatment of Commerce Clause cases and the powers of Congress. By awarding Congress more control over commerce, the Supreme Court will elevate federal powers above state powers, outraging conservatives who fear big government and autocracy.
The divisiveness of the health care reform argument has not escaped the lower courts. The Sixth Circuit Court of Appeals rejected the argument that the individual mandate was not constitutional, the Eleventh Circuit took the opposite stance, and the Fourth Circuit dismissed both health reform cases on the grounds that the Anti-Injunction Act, which is a preexisting law that says a tax cannot be challenged until it has been imposed, barred the mandate’s challenge in court until its implementation in 2014.4 Consequently, both proponents and opponents are anxious to see the issue resolved by the Supreme Court, which intends to review the individual mandate in March.
The first and most important question the Court will decide is whether the Anti-Injunction Act prevents the individual mandate from being challenged in court until it takes effect in 2014.4,6 If the Court rules that it cannot, the case will not be decided, leaving the entire bill open to repeal in the event of an administration change as a result of the 2012 election. However, if the Court does not favor this argument, it can use the three remaining questions to broaden its control over the legislative and, to an extent, the executive branches. Those remaining questions include whether the individual mandate is constitutional, whether the rest of the Act can remain in effect even if the individual mandate is unconstitutional, and whether the Act’s expansion of the Medicaid program is constitutional.
The Court’s decision to rule on the Patient Protection and Affordable Care Act has already stirred controversy from liberals, conservatives, and ethics-in-government activists. Both Justice Clarence Thomas, who has established relationships with health insurance companies like Pfizer and whose wife is an anti-ACA activist, and Justice Elena Kagan, who acted as Solicitor General in the Obama Administration when the bill was enacted, have been asked to recuse themselves from considering challenges to the ACA.7 However, both Justice Thomas and Justice Kagan maintain that their relationships with the bill will not affect the judicial integrity of their final decisions and have given no indication of recusal.
The fact that neither Justice Thomas nor Justice Kagan has recused complicates predictions about the outcome of the health care debate, mainly because the former represents one of the most conservative seats on the Court and the latter one of the most liberal. If one party had recused and the other had not, the decision could have easily become more politicized, pursuing the agenda of a party rather than determining the constitutionality of the individual mandate or the expansion of Medicaid. Ultimately, if the Supreme Court chooses to dismiss the Anti-Injunction Act argument and answer the three remaining questions, its primary goal will not be to favor one side in this incredibly partisan argument, but determine its own role and power in the establishment and maintenance of policy.
- Amy Howe, The health care grants: In Plain English, SCOTUSblog (Nov. 17, 2011, 1:00 PM), http://www.scotusblog.com/2011/11/the-health-care-grants-in-plain-english/
- Amy Howe, Health care amici appointed, SCOTUSblog (Nov. 18, 2011, 2:44 PM), http://www.scotusblog.com/2011/11/health-care-amici-appointed/
- Stolberg, Sheryl. “Insurance Mandate May Be Health Care’s Undoing.” The New York Times. 15 Nov. 2011. The New York Times. 18 Nov. 2011 <http://www.nytimes.com/2011/11/16/health/policy/insurance-mandate-may-be-health-bills-undoing.html?_r=1&partner=rssnyt&emc=rss>.
- Lyle Denniston, Analysis: Health care’s “sleeper issue”, SCOTUSblog (Nov. 22, 2011, 12:04 AM), http://www.scotusblog.com/2011/11/analysis-health-cares-sleeper-issue/
- “Article 1, Section 8, Clause 3.” The Constitution of the United States of America as amended: unratified amendments, analytical index. Washington: U.S. G.P.O., 2007.
- “Court asks 2 lawyers to argue in health care case.” The Associated Press 18 Nov. 2011. 30 Nov. 2011 <http://www.google.com/hostednews/ap/article/ALeqM5gbn_EoENqyeQMq-6RKY53mpAeaiw?docId=5a0e5efaa6ee48c789bb3f9bb1657d87>.
- Oliphant, James. “Scalia and Thomas dine with healthcare law challengers as court takes case – Los Angeles Times.” Featured Articles From The Los Angeles Times. 14 Nov. 2011. 30 Nov. 2011 <http://articles.latimes.com/2011/nov/14/news/la-pn-scalia-thomas-20111114>.
- kenudigit. “US Supreme Court Court Room.” flickr. 4 Oct. 2010 <http://www.flickr.com/photos/kenudigit/5065652061/>.
- Doc Searls. “Elena Kagan.” flickr. 12 Sep. 2008 <http://www.flickr.com/photos/docsearls/2853041660/>.