Supreme Court Hears Arguments on Health Care Law

Posted March 29, 2012 in Landmark Court Cases by

The Supreme Court heard arguments this week about the Patient Protection and Affordable Care Act, or Obamacare, in preparation for a ruling on whether aspects of the massive health care overhaul are allowable under the Constitution.

The main issue in front of the court is the health care law’s individual mandate, which would require all Americans to carry health insurance by 2014 or pay a penalty. However, several other matters are also at stake, including whether striking the mandate would invalidate the entire law.


Consumer Friendly or Government Overstep?

The Affordable Care Act has a number of consumer-friendly provisions, including banning insurers from disqualifying enrollees based on preexisting conditions, expanding Medicaid coverage and issuing subsidies for low-income individuals to buy insurance, allowing young adults to stay on their parents’ insurance up to age 26 and creating health care exchanges to make it easier for consumers to compare different insurance plans and pick the one that best fits their needs.

However, in order for the law to work, it contains a provision that has proven massively unpopular: the individual mandate. Citizens should be required to have insurance, lawmakers reasoned, because otherwise they could just sign up with no penalty only when they required care, without paying into the system during healthier times.

Opponents of the law have argued that Congress has no power under the Constitution to force citizens to purchase health insurance.The Obama administration counters that the Commerce Clause granting the government the ability to regulate trade between states gives them the proper precedent. A number of state attorney generals sued, and after a series of lower court decisions the law has found its way in front of the Supreme Court.


The Issues At Play

The Anti-Injunction Act was the subject of the arguments on Monday, when lawyers debated whether the court could even consider the challenge to the health care law before the mandate takes effect in 2014. The nineteenth-century act says that taxes cannot be challenged until they are actually issued, but the tone of the chambers Monday suggested that this wouldn’t be a problem– even the Obama administration argued that for the purposes of the court hearing, the mandate shouldn’t be considered a tax.

Arguments about the individual mandate were held Tuesday, focusing on whether the mandate is unique, or if allowing it would mean the government could rush in and force citizens to buy any number of other products. Justice Anthony Kennedy, expected to be one of the deciding votes on whether health care law stays or goes, asked some of the more thought-provoking questions. “Can you create commerce in order to regulate it?” the justice wondered. “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” he asked Solicitor General Donald Verrilli, worrying that the mandate “changes the relationship of the federal government to the individual in the very fundamental way.”

On Wednesday morning, lawyers and the justices discussed the issue of “severability,” or whether finding the individual mandate unconstitutional would invalidate the entire health care act. The court seemed to indicate that although losing the mandate would make it extremely difficult to dictate that insurers take on everyone, regardless of preexisting conditions, other parts of the law could be allowed to stand. “Isn’t half a loaf better than no loaf?” mused Justice Elena Kagan.

Medicaid the was subject of the final arguments on Wednesday afternoon. Can the federal government require states to enact measures or follow procedures (in this case, by expanding Medicaid eligibility) in exchange for federal money, or should that be considered coercion? The solicitor general argued that the government disperses money with strings attached all the time. Opposition lawyer Paul Clement saw more sinister forces at work, stating, “it’s a very strange conception of federalism that says that we can simply give the states an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the states to do whatever we tell them to. That is a direct threat to our federalism.”

(Find transcripts and audio of the arguments at the National Journal for day one, day two, and a two part session for day three.)



The most sensational commentary about the arguments so far came from CNN legal analyst Jeffrey Toobin, who said the case was a “train wreck for the Obama administration” after day two, and later added that the individual mandate looks unlikely to survive.

His comments were a part of almost universal condemnation of Solicitor General Donald Verrilli for being unprepared on Tuesday to articulate constitutional justification of the individual mandate under the Commerce Clause. Political columnist Dick Polman wrote “the five Republicans on the court (actually four, because Clarence Thomas as usual didn’t utter a peep) sliced and diced Obama lawyer Donald Verrilli so thoroughly that the Obama administration should probably sift its resumes for a Solicitor General who can speak more coherently than Rick Perry.”

However, a poor performance may not matter. Dahlia Lithwick of called the arguments “an enormous and elaborate piece of theater,” noting that the justices will more likely base their decisions on briefs and study than anything they heard in their chambers this week.

David Cole from the Nation noted that health care is unique in that nearly everybody needs it at some point in their lives, brushing aside concerns that if the government can force citizens to buy health care, they could also force people to buy broccoli and join gyms. “No one can avoid the need for healthcare, no one can predict when he or she will need it, and virtually no one can afford it when he or she does need it,” Cole wrote.

We won’t know how the justices will rule until sometime in June, but most predictions have Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan and Stephen Breyer voting to maintain the law. Clarence Thomas, Antonin Scalia and Samuel Alito seem likely to strike it down, leaving Anthony Kennedy and Chief Justice John Roberts as the deciding members– if either votes that the law can stay, it will, but if both are opposed then Obama’s signature legislation will be thrown out, or at least severely crippled.

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