NCPA - National Center for Policy Analysis

Health Reform in the Supreme Court: A Guide to the Issues

April 6, 2012

The U.S. Supreme Court has concluded oral arguments on the legal challenges to the Patient Protection and Affordable Care Act (PPACA), and will spend several months establishing majority positions and writing concurring and dissenting opinions.  The allocation of time for oral arguments is instructive in understanding the interplay of issues at hand, say Mario Loyola, Josiah Neeley and Spencer Harris of the Texas Public Policy Foundation.

  • A historically large total of six hours of oral arguments were allocated to the PPACA challenge.
  • Ninety minutes were dedicated to arguments as to whether the Anti-Injunction Act (AIA) bars any challenge to the individual insurance mandate until 2014.
  • One hundred and twenty minutes were assigned to discussion of the constitutionality of the individual mandate -- the most controversial portion of the law.
  • Ninety minutes were allowed for the issue of "severability," namely what to do with the rest of the PPACA if the individual mandate is struck down.
  • Sixty minutes were given to discussion as to whether or not the expansion of Medicaid amounted to effective federal coercion of the states.

The first issue, regarding the AIA, is essentially a question of timing.  The AIA requires that taxation laws cannot be legally challenged until they are levied.  Therefore, because the PPACA will not be fully implemented until 2014, a court decision to uphold the applicability of the AIA would delay making a decision for two years.  Interestingly, neither the federal government on one side nor the state governments on the other are arguing that AIA should apply.

The second issue of the individual mandate will become the quintessential constitutional challenge to the true breadth of power afforded to Congress by its power over interstate commerce.  State challengers argue rightly that if this power extends so far as to be able to regulate a lack of activity (not buying insurance), then very little is not within the scope of federal power.

Thirdly, the Court will assess whether the other provisions of the PPACA can continue as law if the mandate is found unconstitutional.  Crucial here is the fact that the PPACA would likely never have been approved by Congress in the absence of the mandate.  Therefore, upholding the rest of the law would essentially be a judicial line-item veto.

Fourth and finally, the expansion of Medicaid will be scrutinized as being excessively coercive of states to the point that it violates the principles of federalism.  The expansion would require greater budgetary outlays by the states to cover their share of the program, but opting out of the program is largely politically impossible.

Source: Mario Loyola, Josiah Neeley and Spencer Harris, "ObamaCare in the Supreme Court: A Guide to the Issues," Texas Public Policy Foundation, March 2012.

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