The US Supreme Court on Monday agreed to examine the constitutionality of President Obama’s health-care reform law, wading into a controversy that has divided political leaders, lawmakers, and much of the nation.
In an unusual move, the justices scheduled 5-1/2 hours for oral argument to cover four distinct issues, including the controversial individual mandate and whether the law is a valid tax and thus immune from challenge under the Anti-Injunction Act.
It is hard to overstate the potential significance of a high-court ruling addressing the underlying legal issues. The fate of the Affordable Care Act (ACA) – the president’s biggest legislative achievement – hangs in the balance, and it is doing so in a presidential election year.
But the case, ultimately, is about something more fundamental. It is about congressional power and the extent to which the text of the Constitution and the Supreme Court’s own precedents limit or amplify that power.
It is also about the role of the Supreme Court itself, and whether the high court under the leadership of Chief Justice John Roberts will seek to recalibrate the balance of federal and state power.
Since the New Deal, the Supreme Court has embraced an expansive view of congressional authority, with a few notable exceptions. The big question in the ACA litigation is whether the high court will focus on the few exceptions and overturn the health-care reform law, or whether the court will continue to endorse wide-ranging congressional power.
Either way, the decision will be a landmark.
Can the government make you buy health insurance?
At the center of the storm is a provision that requires all Americans to purchase a government-approved level of health insurance or pay a penalty.
Opponents of the law say it marks a dramatic shift in the federal government’s posture toward the American people. Never before has the US government ordered citizens to purchase a private product or service under threat of government sanction.
If the federal government can order the purchase of a required level of health insurance, there is nothing to stop the federal government from ordering citizens to buy Ford cars to preserve jobs in the auto industry, join a private gym to keep health costs low, or buy and eat broccoli to boost nutrition, they say.
The health insurance reform measure is designed to expand coverage to those who can’t afford it or who have been refused coverage because they have been diagnosed with potentially expensive preexisting medical conditions.
The Affordable Care Act seeks to pay for this expanded coverage in part by requiring the purchase of insurance by young, healthy individuals who might otherwise skip coverage. The larger pool of younger, healthier (and cheaper) insurance customers is meant to spread the risk to health insurance companies and thus help cover the extra cost of insuring those with expensive preexisting medical conditions.
The key question is whether the means chosen by the Democratic Congress and Mr. Obama to accomplish this goal comport with constitutional requirements.
No Republican member of the House or Senate voted for the ACA.
Obama signed the reform measure into law in March 2010. It sparked immediate legal action. Twenty-six states, a church-run college, an association of small businesses, a public-interest law group, and a handful of citizens asked the federal courts to declare the ACA unconstitutional.
So far, four US appeals courts have ruled on the issue. Three have upheld the law; one, the 11th US Circuit Court of Appeals in Atlanta, struck it down.
The legal dispute begins with 12 words enshrined in Article I, Section 8 of the Constitution: “Congress shall have power … to regulate commerce … among the several states.”
Congress has used this authority to pass a wide range of federal laws involving interstate commerce and economic activities affecting the states. The Supreme Court has rarely challenged efforts to broadly construe congressional authority under the Constitution’s commerce clause.
But problems have arisen whenever the court has tried to identify the boundaries of this federal commerce authority.
The Constitution was written in part to constrain the national government within enumerated powers. For example, the 10th Amendment notes that the “powers not delegated to the [federal government] by the Constitution … are reserved to the states respectively, or to the people.”
That means the national government has no power to act beyond the role assigned it under the Constitution. In contrast, the states retain the broadest powers – including a general police power that would allow a state government unquestionably to order a statewide version of the ACA.
This is the situation in Massachusetts, where most people have been required to buy health insurance since 2007.
The question before the Supreme Court is whether federal power is broad enough to permit Congress to order a nationwide individual mandate.
Important 'commerce clause' cases of yore
To answer that question, the court must look back through history at earlier Supreme Court decisions that have defined the reach of federal power under the commerce clause. Those cases involve wheat, marijuana, guns near schools, and violence against women.
The wheat case examined whether the federal government could enforce a quota on wheat production against wheat grown on a farm for consumption on that farm. The farmer argued that because his wheat was not entering interstate commerce, he should be able to produce wheat on his own land free of federal control. The high court disagreed, ruling in 1942 that the aggregate effect of home-grown wheat undercut the federal quota because it reduced the amount of wheat the farmer would otherwise buy on the interstate market to satisfy on-farm consumption.
The marijuana case examined whether federal narcotics laws could be enforced against users of home-grown medical marijuana in California, where the state had legalized the practice. The court upheld the federal law because the medical use of marijuana – even entirely intrastate growing and use at one’s home – would undermine the comprehensive drug enforcement mechanism of the federal government.
In the wheat and marijuana cases, the court upheld the broad application of commerce clause power by the national government. But the court found Congress had acted beyond its commerce clause authority in enacting a gun-free school zone and in passing the Violence Against Women Act. The court said those laws were too far removed from interstate commercial activities to justify federal intrusion into areas traditionally regulated by the states.
Although the federal government has become heavily involved in funding aspects of the health-care market, insurance is an area of commerce traditionally regulated at the state level on a state-by-state basis. On the other hand, the private companies offering insurance are participants in a national market.
ACA supporters say the health-care reform law is clearly a regulation of commerce. The health insurance market accounts for 17 percent of the US economy, they say, and health care is a product every human being at some point will require.
“Because of human susceptibility to disease and accident, we are all never more than an instant from the point of consumption of health care,” wrote US Solicitor General Donald Verrilli, urging the court to take up the appeal. “Nothing in the commerce clause requires Congress to withhold federal regulation until that moment.”
ACA opponents counter that the individual mandate is a massive power grab by the federal government that violates the constitutional order of a federal government of limited powers established by the Founding Fathers.
“The individual mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives,” wrote Paul Clement in his brief urging the court to take up the appeal.
Other considerations for the high court
In addition to allotting two hours for arguments concerning the individual mandate, the justices set an additional hour to cover the question of whether the ACA lawsuits must be dismissed under the Anti-Injunction Act.
The justices also agreed to take up a case filed by Florida and 24 other states charging that the ACA is unconstitutionally coercive to state government, forcing the states to participate in the national reform effort or risk loss of federal health-care funds.
The court will also hear 90 minutes of argument on whether the entire health-care reform law must be struck down, or just portions of it, should the court determine that the individual mandate is unconstitutional.
The case will be set for oral argument sometime next year in late winter or spring, with a decision expected by late June.
The granted cases are Department of HHS v. Florida (11-398), National Federation of Independent Business v. Sebelius (11-393), and Florida v. Department of HHS (11-400).