As the date draws near for oral arguments on the Affordable Care Act before the Supreme Court, advocates on both sides are prepping their cases. The case is scheduled for 6 hours of arguments from March 26 to 28, the longest amount of time ever allotted to oral arguments in the Court’s history. The Court’s decision on this case will have far-reaching implications, both for the health law itself and for the legal precedent it will set in interpreting the extent of Congress’ power over the states.
From now until the close of arguments in this historic case, the National Council will provide you with regular updates on each side’s key points and news from the courtroom. Stay tuned to our emails, blog, and Twitter feed (@nationalcouncil) for the latest updates.
To begin, we’ve created a refresher for readers on the four main points at stake in this case and the timeframe for oral arguments:
Monday, March 26: Anti-injunction Act (90 min.) The central question at issue is whether plaintiffs have legal standing to bring a lawsuit before the law goes into effect. The enforcement mechanism for the individual mandate – that is, the government’s tool for compelling individuals to purchase insurance – is a tax penalty levied on individuals who are not insured. Under a tax law known as the Anti-Injunction Act, plaintiffs cannot bring a lawsuit against a tax before they are actually subject to the tax. In other words, if the individual mandate is at heart a tax issue, it is possible that the plaintiffs in the ACA cases may not actually have legal standing to bring a lawsuit against the individual mandate until the point at which it actually goes into effect in 2014.
- The Implication: If the Supreme Court rules that the Anti-Injunction Act holds in this instance, it may render any further consideration of issues 1 and 2 meaningless until 2014. Issue 3 is not a tax issue, so the Court could still rule on the Medicaid expansion.
Tuesday, March 27: Minimum Coverage Provision (2 hrs.) Also known as the “individual mandate,” this provision – which requires all individuals to either have a source of health insurance coverage or pay a tax penalty – is one of the most widely contested provisions of the law. Congress justified this provision of the ACA under its power to regulate interstate commerce, arguing that a person’s decision to not be insured has broad ripple effects throughout the economy. However, the plaintiffs in several of the ACA cases have argued that a decision not to purchase a product does not fall under the umbrella of “interstate commerce” and that Congress is overstepping its bounds by requiring people to purchase a private product.
- The Implication: If the Court strikes down the mandate, it will then have to decide whether the rest of the law can still stand (see below). However, if it upholds the mandate, that question may be rendered moot.
Wednesday, March 28: Severability (90 min.) The individual mandate is the lynchpin to many of the other insurance reforms included in the ACA. Without a requirement that individuals be insured, the law’s new regulations on insurance companies (including the requirement that no individual can be turned away from insurance for a pre-existing condition) would not be fiscally sustainable. Thus, it is unclear whether the rest of the ACA could survive if the mandate was ruled unconstitutional.
- The Implication: If the Court rules that the mandate is unconstitutional and cannot be severed from the rest of the law, the entire ACA may be struck down. On the other hand, if the Court rules that the mandate is unconstitutional but can be severed, Congress will have to return to the drawing board and find a new way to make the ACA’s insurance reforms fiscally sustainable. Policymakers and researchers have proposed several mechanisms to achieve this, including the idea of having a yearly open enrollment period for purchasing insurance on the state exchanges, similar to what is currently done in Medicare Part D and most employer-sponsored plans. However, any Supreme Court decision that results in Congress having to take additional action sets the stage for a protracted political battle that would be heavily influenced by the outcome of the November elections.
Wednesday, March 28: Medicaid (1 hour) Twenty-six states have challenged the constitutionality of the Medicaid expansion, which provides states with new money for Medicaid under the conditions that they cover certain new populations and provide at least a minimum set of essential benefits. It is well-established in legal precedent that it is not an infringement of states’ powers for the federal government to offer them optional new funding with certain requirements attached to that funding. However, the states in this lawsuit have argued that the scope of the new law is so vast, and the Medicaid expansion is such a fundamental component of the law, that their participation would in effect force them to abdicate powers traditionally reserved for states (a situation known in this context as commandeering).
- The Implication: If the Court rules that the Medicaid expansion is unconstitutional, it would severely undermine the law and could put the implementation of health reform in jeopardy. However, the anti-commandeering argument is widely considered to be the weakest one against the ACA since states’ participation in Medicaid is voluntary.
For additional details about the specific legal questions at issue on each of these points, along with a summary of lower courts’ decisions on the ACA, the Kaiser Family Foundation has created A Guide to the Supreme Court’s Review of the 2010 Health Care Law.