Around June of next year, the U.S. Supreme Court may find itself embroiled in the presidential election, or maybe not.
On Nov. 14 the Supreme Court agreed to hear two cases involving a variety of constitutional challenges to the Patient Protection and Affordable Care Act, which went into effect in March 2010. To address the fact that millions of Americans had no health insurance but participated in the health care market and could not pay for the health care services they consumed, ACA included a minimum coverage provision. Specifically, the ACA amended the tax code and provided an individual mandate to purchase and maintain a minimum level of health insurance. Non-exempt individuals who fail to do so by 2014 must pay a tax penalty.
The act also expanded Medicaid, which states had to accept in order to receive federal funds for Medicaid. Finally, ACA included an employer mandate to obtain health coverage for employees.
President Barack Obama’s signature on the legislation was barely dry before Florida and 12 other states brought actions seeking a declaration that ACA was unconstitutional. Their suit was later joined by 13 additional states, the National Federation of Independent Businesses, and two individual plaintiffs.
They argued that, one: the individual mandate exceeded congressional power under the Commerce Clause (enumerated in Article I, Section 8, Clause 3 of the Constitution); two: the Medicaid expansions were an unconstitutional coercion of the states, contrary to basic principles of federalism; and three: the employer mandate unconstitutionally interfered with state sovereignty.
The two cases are appeals from a decision by the 11th Circuit Court of Appeals, which affirmed the District Court’s holding that the Medicaid expansions and the employer mandates were constitutional. The Court of Appeals also held that the individual mandate was unconstitutional but could be severed from the rest of ACA, which was left standing.
The Supreme Court asked the parties to address four questions, and allotted five-and-a-half hours this spring for oral argument (an extraordinary amount of time not seen since 1966). A ruling is likely at the end of the court’s term in June.
That the court agreed to hear these cases was not surprising. As several seasoned court-watchers pointed out, the real surprise came with respect to the issues the court asked the parties to address, as well as the amount of time allotted to each.
Two hours will be spent on the issue that received the most publicity even before ACA became law — the individual mandate and whether Congress can use its commerce powers to regulate “inactivity” (the decision not to purchase health insurance) and whether there is some limiting principle that would allow the individual mandate while preventing Congress from forcing us to buy broccoli (or worse, eat it).
Ninety minutes will be spent on “severability” — whether the individual mandate is so crucial to ACA that if it falls, the entire law must collapse, or whether the mandate can be severed from the rest of the law.
But what is the really big surprise? An hour discussing the issue with potentially explosive consequences — whether ACA’s expansion of Medicaid coverage unconstitutionally coerces state governments. A ruling against the federal government on this issue could seriously undermine its future ability to pursue national policy goals, and thus be an even greater blow than a finding that the individual mandate exceeded the commerce power.
Whatever the court decides, a decision coming in the middle of a presidential election campaign will inevitably interject wearyingly familiar discussions of the proper role of judges in our political system. The losing side will decry judicial activism. The winners will praise the justices’ dedication to fundamental constitutional principles. The American people will stifle a yawn.
Perhaps that is why the court has also allotted an hour to explore whether the 19th century Anti-Injunction Act applies in this case. If it does, the court wouldn’t have jurisdiction to even consider these challenges until 2014, when the tax-penalty provision goes into effect. It would not be the first time in the court’s history that it chose to postpone a controversial issue until political passions subsided.
Philip Dynia is a political science professor. He can be reached at [email protected]
On the Record is a weekly column open to any member of Loyola’s faculty and staff. Those interested in contributing can contact [email protected]
