Last week the Supreme Court heard oral arguments on the Affordable Care Act (ACA), commonly known as health care reform. Hearings were held for more than six hours over three days -- more time than has been given to a case in over 50 years. At least 170 briefs were filed -- more than any other case in history. Efforts to overturn provisions of the history-making law are proving to make history themselves.
On the first day, the Court heard arguments on the impact of the Anti-Injunction Act (AIA) on the constitutional challenge to the ACA’s minimum coverage provision. The AIA works to prevent federal courts from hearing cases in which taxpayers are seeking court orders to prevent the government from assessing or collecting a federal tax - the theory being that the proper time for a court’s involvement in such cases is after the tax in question has already been paid (which for the ACA could be not for a couple more years). As a consequence, before the Supreme Court can consider whether the ACA is constitutional, it must determine whether the AIA takes away the authority of federal courts to hear the case, or whether it does not apply to this controversy. Counsel for the states argued that even if the penalty is a tax, the controversy should still be heard by the Court because the respondents are not seeking to enjoin the assessment or collection of a tax, but instead the requirement that everyone purchase health insurance. The Justices considered the use of the word “penalty” in the ACA, the relationship between the insurance mandate and the penalty, and the effect of both provisions (individually and together) on the public and the states.
On Tuesday, the Supreme Court heard arguments on the minimum coverage provision of the ACA, which requires that all Americans (with limited exceptions) maintain a minimum level of “essential health care coverage.” The issues the Court must address are whether it is within Congress’s power under the Commerce Clause of the Constitution to mandate the purchase of health insurance coverage, and whether Congress has the authority to assess a penalty against those who refuse to do so. Americans have already been subjected to a number of mandates before the ACA, such as filing income tax returns and serving on a jury, but challengers to the ACA argue that purchasing health insurance is not a duty of citizenship, as other mandates have been.
Under the Commerce Clause, Congress has the power to regulate an activity that has a substantial affect on interstate commerce. The questioning on Tuesday centered mostly around which market was being regulated by the ACA: the insurance market, health services generally, or the portion of health services utilized by the uninsured. The Justices also posed many questions with regard to the argument that everyone is in the healthcare market, noting that almost everyone is going to require some kind of healthcare during their lifetime, that having health insurance is often a requirement for people to access the healthcare they need, and that the government is able to mandate vaccinations when a public health emergency arises.
On the third day of oral arguments, the Court heard arguments on the severability of the individual mandate provision and state sovereignty in the Medicaid expansion. The severability issue considers whether Congress would have intended the rest of the ACA to stand if the individual mandate provision was found to be unconstitutional. Challengers to the ACA argue that the individual mandate is the essence of the ACA, and that Congress would not have intended the additional “miscellaneous” provisions of the ACA to stand without it. The Court also heard arguments in support of leaving the rest of the ACA intact and letting Congress decide whether to enact further amendments if needed, and the government’s argument in favor of striking also only those additional provisions found closely linked to the individual mandate; the guaranteed-issue and community-rating provisions.
The hearings concluded with arguments on the Medicaid expansion. Under the Medicaid program, the federal government provides funds to participating states, and in return the states agree to follow certain standards. The ACA set new standards for the Medicaid program in expanding eligibility to individuals with incomes up to 133 percent of the poverty level, the increased costs of which will be paid for entirely by the federal government until 2016, and then decrease to 90 percent federal coverage by 2020. As a result, states would be required to expand coverage of their state’s Medicaid programs, or lose all federal Medicaid funding (typically 50 to 83 percent of the state’s Medicaid program spending). Arguments on this issue addressed the possible coercion created by the ACA, by offering states an offer that cannot be refused. Whether coercion depends on how much the federal government threatens to take away or what it is offering and the relationship between both was also discussed. At the end of the hearing, Justice Ginsburg sought clarification that the challengers to the ACA would be satisfied with providing states the opportunity to opt out of the Medicaid expansion, instead of striking the expansion from the bill entirely.
Finally, last Friday, the Supreme Court Justices cast their votes on the constitutionality of the ACA in a conference room with no one else present. In the weeks to come, the Justices will draft opinions and dissents on the case, and one Justice may be assigned to write the majority opinion, or multiple will be assigned to each write about different issues. While each Justice’s vote can certainly change over the course of the next several weeks as they draft their opinions, most often changes are from the minority to the majority after reading the opinion, although it is possible that a vote change will affect the outcome of the controversy. It will be late June or early July before the decision is finalized and the opinion is made available to the public. Until then, we can only speculate as to where the Justices will fall on the issue.
Amanda Swanson
LL.M. in Health Law Candidate
