Supremes and the fate of the ACA

Two years ago, President Obama passed the Patient Protection and Affordable Care Act (PPACA). At that time, little attention was given to the impending law suits that would challenge the legality of the law. A week after the historic review of the Act by the US Supreme Court reveals that the threats challenging the law as unconstitutional are now anything but frivolous. The Supreme Court allocated six hours over three days, between March 26th and March 28th to hear oral arguments on the constitutionality of the Act. On day one, the court listened to 90 minutes of arguments on whether the case should even be heard at all. Attorney Robert Long, who was appointed to argue in favor of the idea that the 19th century Anti-Injunction Act (AIA), which imposes a pay-first, litigate-later rule that is central to tax collection, argued that because the penalties imposed for failure to purchase would be collected through a tax (5000A), the AIA should bar the courts from hearing the case until after penalties are assessed sometime after 2014. As the ACA is written, individuals will be required to report whether or not they have purchased health insurance on tax returns for 2014. Failure to purchase will then result in a penalty that will be collected along with federal income tax. At issue for the day were whether or not that penalty is a tax and whether or not a tax can be challenged before it has been implemented. A review of the days transcripts indicated that the Court would ultimately get to the minimum coverage provisions constitutional merits on the morrow. Day two marked the continuation of oral arguments in Case 11-398, the Department of Health and Human Services v. Florida. Of the four major questions that the Supreme Court is considering, Is the individual mandate constitutional? has received the most attention. If upheld, the ACA will require that all Americans purchase health insurance. Those who do not will pay a penalty/tax. At issue here is whether or not Congress has the right, under the Commerce Clause of the U.S. Constitution to compel Americans to purchase a product? This was a tough day for proponents of the individual mandate. Justice Kennedy grilled the Obama administrations lawyer, Solicitor General Donald Verrilli, who many believe failed to parry the conservative justices pointed challenges to the laws validity. Kennedy later stated, But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets stipulate two markets the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries indicating that he is in play. However, court watchers across the land believe that Clarence Thomas is the only firm no among the five rightof-center members of the court. I encourage all of you to read the transcripts from day two, which include a very interesting debate on what constitutes a market and how these markets differ in nature.

On day three, the court set aside 2 and hours to consider whether or not the rest of the ACA act could go forward if the Individual Mandate is found to be unconstitutional and whether or not the Medicaid expansion, which compels states to provide coverage to adults earning less than 133% of the federal poverty level, is constitutional. Regarding the Medicaid expansion, the discussion centered on whether or not a gift of federal dollars to states in this case to fund Medicaid could be construed as coercive. Mr. Clement, arguing on behalf of the petitioners in this case, maintained that the ACA allowed the federal government to refuse all funding to Medicaid programs in any state that chose not to participate in the expansion, making the funding coercive. However, justices Ginsburg, Scalia, Sotomayor or Breyer or Kagan seemed to be buying it. In fact, justice Kagan even stated that if Clement was right about the coercive nature of federal funding for Medicaid, Doesnt that mean that Medicaid is unconstitutional now? Not to be outdone, Justice Alito, and his more conservative counterparts, maintained a tough line of questioning for Donald Varilli Jr. whose job it was to argue in favor of the Medicaid expansion outlined in the ACA. On page 44 of the transcripts, Justice Alito provides an interesting hypothetical wherein the feds attempt to govern the educational systems in states through extensive regulation that is tied to funding. If you take [the funding] you have to follow our rules on all of these things. If you leave it, well, then you are going to have to pay a fine you are going to have to tax your citizens, they are going to have to pay the Federal education tax; but on top of that, you were going to have to tax them for all of the money that you are now spending on education plus all of the funds that you were previously given. Transcripts regarding the severability of the Individual Mandate from the rest of the ACA can be found here. As Forbes points out, the liberal side of the Court jumped out early with Justice Ginsburg arguing that, should the mandate be voided, the Court should err on the side of attempting to save what would be left of what Congress has created. Ginsburg pointed out that if the Court has to choose between a wrecking operation and a salvage job, a more conservative approach would be a salvage job. However, the conservatives appeared to be not quite so certain, particularly Justices Alito and Scalia, who questioned heavily on the question of whether Congress would have ever passed the law without the mandate and, if they would not have done so, should not the entire law be voided. It would then be up to Congress to create a new law that would meet a constitutional test. Moreover, the idea of the Court having to sift through the 2,000 plus pages of the ACA to determine what could stand on its own and what must go might be far more of an undertaking than what the Court would be willing to take on. It is important to note that, while only the Supreme Courts decisions can determine the legality of the Medicaid expansion or the ability to sever the individual mandate from the rest of the Act, many experts believe that, should the Individual Mandate be struck down, the rest of the Act will stand. In addition, Congress has expanded Medicaid many times over the years and has never had an expansion struck down. In my mind, the only issue left in question is the legality of the Individual Mandate which I believe will fail. The Courts decisions are expected in late June or early August, yet I believe that the nation, legislators, those who work in the healthcare industry and the nations citizenry as well, are growing ever more conscious of the fact that we have an inadequate healthcare system in our country that is unsustainable and does not meet the healthcare needs of the nations populace. Regardless of the outcome of the Supreme Court hearings, the states will pick up the mantle of health reform where the federal government has left off. At least, lets hope so!