Tag Archives: Affordable health care act

Affordable Care Act – Mandate decision

From SCOTUS Blog:

Although the Court had four questions before it, the focus of the challenge to the Affordable Care Act (ACA) was the so-called individual mandate – the requirement that almost all Americans buy health insurance by 2014 or pay a penalty.  Defending the constitutionality of the mandate, the government’s primary argument was that Congress can require everyone to buy health insurance using its power under the Commerce Clause of the Constitution, because the failure to buy insurance shifts the costs of health care for the uninsured to health care providers, insurance companies, and everyone who does have health insurance.  Five Justices – the Chief Justice and Justices Kennedy, Scalia, Thomas, and Alito – all rejected that argument.  But the government still won, because a different set of five Justices – the Chief Justice, and Justices Ginsburg, Breyer, Sotomayor, and Kagan – agreed that the mandate was constitutional, but for a different reason.

The most important part of the Court’s opinion on the mandate came from the Chief Justice, John Roberts.  He acknowledged that Congress has a broad power under the Commerce Clause, but he emphasized that Congress’s power to regulate commerce assumes that there is commercial activity to regulate.  In his view, the mandate creates activity, rather than regulating it.  If the Court were to interpret the Commerce Clause the way that the government does, he contended, it would allow Congress to regulate all kinds of new things – including forcing people to buy vegetables (with no specific reference to broccoli, however).  “That is not the country” the Founding Fathers envisioned, he proclaimed.

Although the Chief Justice rejected the government’s Commerce Clause argument, he agreed with one of the government’s alternative arguments:  the mandate imposes a tax on people who do not buy health insurance, and that tax is something that Congress can impose using its constitutional taxing power.  He acknowledged that the mandate (and its accompanying penalty) is primarily intended to get people to buy insurance, rather than to raise money, but it is, he explained, still a tax.  If someone who does not want to buy health insurance is willing to pay the tax, that’s the end of the matter; the government cannot do anything else.

Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) agreed with the Chief Justice’s bottom line – that the mandate is constitutional under Congress’s ability to tax – even while disagreeing with his Commerce Clause conclusion; those four Justices would have held that Congress could use its power to regulate commerce to pass the mandate.  With five votes to uphold the mandate, it will survive, and the Court did not need to consider the “severability” issue — that is, what other parts of the law would have to go if the mandate were unconstitutional.

via The mandate is constitutional: In Plain English : SCOTUSblog.

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Health care in plain english (by SCOTUS)

Let’s break down what could happen tomorrow, in Plain English.

First off, although (almost) everyone’s focus will be on health care, the Court will also decide two other cases:  United States v. Alvarez, about whether a law that makes it a crime to lie about having received military honors violates the right to freedom of speech; and First American Financial Corp. v. Edwards, about whether homebuyers who aren’t injured by kickbacks between banks and title companies can still file suit.

In another year, both of these cases would be high-profile ones in their own right. Alvarez involves very interesting First Amendment issues, and First American – while sounding a bit dry and technical – could announce very important rules on when lawsuits can be filed.  But tomorrow they will be mere footnotes in history.  They matter here because they will probably be announced before health care, pushing that decision to 10:15 or so before it is issued.

Once the Court does turn to health care, there are four questions before it.  Three of those questions revolve around the “minimum coverage” provision, popularly known as the “individual mandate.”  Of course, the question keeping the White House, Congress, and everyone else in the country on pins and needles is whether the mandate – which would require virtually all Americans to buy health insurance by 2014 or pay a penalty – is constitutional:  can Congress, using its power under the Constitution to regulate commerce between the states, make people buy health insurance?  (More detailed Plain English discussions of the substantive issues in the case, including the individual mandate, are available at this link.)

But before the Court can decide whether the mandate is constitutional, it must first decide whether it can even rule on this question at all.  The potential obstacle to the Court’s review of the mandate is the Anti-Injunction Act (AIA), an 1867 law that prohibits lawsuits to challenge a tax until the tax has actually gone into effect and needs to be paid.  At least one lower court has concluded (and the federal government once even argued) that the “penalty” which would be imposed on someone who doesn’t buy health insurance under the mandate is a “tax”; therefore, this line of reasoning goes, someone who believes that the mandate is unconstitutional cannot bring a lawsuit making that argument until after the mandate actually goes into effect in 2014.

If the AIA applies to the lawsuit over the mandate, then the Court cannot consider the challenge to the mandate even if both the federal government and the states challenging the law want the Supreme Court to decide the case.  So if at least five of the nine members of the Court were to conclude that the AIA does apply to the mandate, that would be the end of the matter.  The Court would not discuss, much less rule on, whether the mandate is constitutional, nor would there be any reason for the Court to weigh in on what parts of the law, if any, can survive if the law is unconstitutional – the “severability” question.  Instead, the Court would skip straight to the fourth and final question, dealing with the constitutionality of a provision that expands eligibility for Medicaid, the state-federal partnership that provides health care to the poor.

What the Court will in fact decide about the AIA obviously remains to be seen tomorrow.  After the oral argument in March, most Court watchers believed that the Court would not regard the AIA as a bar to reviewing the mandate.  But if that issue went the other way, that decision would postpone a decision on the mandate until well after the presidential election – which might be an appealing option both for political reasons and if the Court is having a hard time coming up with a majority to resolve the mandate issue.

At least for tomorrow, all that anyone will really be interested in with regard to the AIA is the Court’s bottom line:  can it review the mandate issue or not?  If it agrees with both sides that it can, all eyes will then turn to that constitutional question.  Most Americans care about the bottom line:  is the mandate constitutional?  Even if the Justices disagree on the reasoning, the mandate would still survive.

If the mandate does survive, then the Court’s work is almost done; all that would be left would be the Medicaid issue, which we will discuss in a moment.  But if at least five Justices vote to strike down the mandate, then the Court will have to decide what other parts of the law, if any, fall with it.  On this “severability” question, the Court will again have several options.  It could allow all of the rest of the ACA to stay in place; it could conclude that the rest of the law must go too (as the states have argued); or it could settle on a middle ground – for example, as the federal government argued, by striking down the provisions that are inextricably linked to the mandate but allowing the others to go into effect.

Finally, as long as the Court doesn’t conclude that the entire ACA must fall, it will have to resolve one more issue:  does another provision of the Act violate the Constitution because it effectively coerces the states, requiring them to comply with the ACA’s expanded Medicaid eligibility requirements or risk losing all of the money that they receive for Medicaid from the federal government?  The lower court agreed with the federal government that it does not, and the Justices seemed to be leaning that way at oral argument.  But as we saw on Monday when the Court announced its decision in theArizona case, the oral argument is not always a foolproof predictor of how the opinion will turn out.

via Anticipating the health-care decision: In Plain English : SCOTUSblog.

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