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A Viewer’s Guide to Supreme Court Arguments on Health Care Law

March 22, 2012 at 12:00 AM EDT
The Supreme Court is set to hear three days of arguments next week over challenges to the health reform law President Obama signed two years ago. Judy Woodruff, The National Law Journal's Marcia Coyle and Health Affairs' Susan Dentzer preview the upcoming arguments.

JUDY WOODRUFF: Finally tonight, a look ahead at the U.S. Supreme Court hearings on the health care reform law.

Two years ago this week, President Obama signed a law that aims, among other things, to expand insurance coverage to 32 million more Americans by the end of the decade, starting in 2014. But the Affordable Care Act has been the subject of heavy political and legal battles from the outset.

Next week, the Supreme Court will hear three days of arguments over challenges to the law brought by 26 states and others, who argue it is unconstitutional. The court case also lands in the heat of this election season.

Today, Republicans marked the anniversary by registering their continued opposition to the law.

Here’s Senate Minority Leader Mitch McConnell.

SEN. MITCH MCCONNELL, R-Ky.: We need to reform health care, but this reform made things worse. The evidence and broken promises are all around us.

It’s time the president acknowledged it. And it’s time the two parties came together and did something about it. It’s time to repeal Obamacare and replace it with the kind of commonsense reforms Americans really want, reforms that actually lower costs and which put health care back in the hands of individuals and their doctors, rather than bureaucrats here in Washington.

JUDY WOODRUFF: Meanwhile, President Obama is stepping up his defense of the law. Here’s how he touted its benefits at the a Chicago campaign fund-raiser last week.

PRESIDENT BARACK OBAMA: We have got 2.5 million people who already have health insurance today because they can stay on their parents’ plan, millions of seniors who are already seeing benefits in terms of more preventive care, lower drug prices.

And not only is preventive care now covered. It also means that families with children with preexisting conditions aren’t going to have to worry that somehow their child is going to be left on their own or that they’re going to have to mortgage their business or lose their home because of that illness.

JUDY WOODRUFF: Now a viewer’s guide to the law and the case going before the court.

We will get that from two people who will be with us on air and online tonight and next week. They are Marcia Coyle, our regular Supreme Court reporter with The National Law Journal, and Susan Dentzer, editor-in-chief of the journal Health Affairs. She’s a health analyst for the NewsHour.

The two of you are going to be spending a lot of time with us next week.

SUSAN DENTZER: We sure are, Judy.

JUDY WOODRUFF: So we are glad to have you here for this preview.

Susan, I’m going to start for you.

Summarize the basics for us of what this law is. How is it intended when it’s all said and done, if it becomes law, to change the way Americans interact with the health care system?

SUSAN DENTZER: Well, Judy, of course, it’s a big law.

But the most relevant provisions are these. Fifty million people in the country don’t have health insurance. And the insurance market is fraying as the costs of health insurance gets so high, so expensive. So what the law does is essentially says for about half of those without health insurance who we’re going to tack on — actually, I should say that this law only solves about two-thirds of the problem of uninsured.

But for half of that two-thirds, we’re going to take the Medicaid program and expand it for those people. So, Medicaid, which traditionally was our program for low-income people, we will make that bigger. We will write some new rules. About 10 to 20 million people will go into that.

Then, for higher-income people, not really-high-income people, but higher-income people, who are buying insurance on their own or who work for small businesses, we are going to create new markets in every state called health insurance exchanges. We are going to let people buy coverage through those new markets. We’re going to give them federal subsidies to help pay for it.

And we are going to do something else. We are going to change the health insurance market, because right now for a lot of people, the health insurance market operates by leaving out people who are sick and just trying to insure the people who are healthy. It doesn’t work very well.

We’re going to change the rules. We’re going to turn it around. We’re going to get everybody in the pool. So in a sense, the government is saying — it’s like a lifeguard — everybody get into the insurance pool. And that is the piece that is the individual mandate that says everybody’s got to get covered.

JUDY WOODRUFF: Well, speaking of that, if that’s a broad-brush look at what it should do, would do if it were enacted, what’s the central complaint? Twenty-six states filing lawsuits and other organizations.

SUSAN DENTZER: Well, there are four major complaints.

One of the primary ones, though, is that individual mandate, the government saying everybody get into the pool, is unconstitutional. And, in effect, if we think about most Americans, most Americans have health insurance. Most Americans work for large employers, have coverage. They don’t need to worry about this. They’re really not affected by it.

The mandate is really is there so that people who would otherwise stay out of coverage for whatever reason will get into the pool, because this whole system only works if everybody, healthy and sick, is in the pool and then we spread the cost of insurance across the whole population.

So that’s the argument. Is the mandate constitutional, is it okay for the government to say everybody get into the pool, or not?

JUDY WOODRUFF: Well, Marcia, let’s talk just quickly here about how the justices are approaching it. They said aside three days, six hours. How unusual is that?

MARCIA COYLE, The National Law Journal: It is unusual.

In fact, Judy, I think you would probably have to go back to the ’60s to find something comparable. But I think the way the justices have structured the arguments and identified four issues reflects how seriously they take the issues before them, as well as how carefully they are going to review them.

In fact, the court even appointed two lawyers, two widely respected Supreme Court advocates, to argue positions that the main parties are not going to argue, so that it has the full picture.

JUDY WOODRUFF: Well, we’re going to be digging into each one these arguments every day, but let’s talk first quickly about day one.


JUDY WOODRUFF: The court on day one is going to look at this basic question of whether it can rule on the merits of this law before the mandate and the penalties even take effect.


And we’re going to be hearing about a law, an 1867 law known as the Anti-Injunction Act. That law basically says, federal courts, you can’t entertain tax challenges until the law — the tax law takes effect. And it’s very practical, because the government needs to collect revenue in order to operate, and can’t be tied up in federal court fighting off tax challenges.

We’re going to hear from the United States, the government — it’s supporting the health care law — that the Anti-Injunction Act doesn’t apply here, that it doesn’t apply to the mandate and the penalty, that the penalty is not a tax law. Yes, it’s in the internal revenue code, but it’s not a tax, doesn’t operate as a tax.

The challengers agree. And they say, we’re not challenging the penalty. We’re challenging the mandate. Let’s focus on the mandate. And this is one of the case — one of the issues in which the court appointed a lawyer to make the argument that the act does apply.

JUDY WOODRUFF: This is kind of unusual, but on the first day, they will be dealing with whether they can go ahead and make the ruling, period.

MARCIA COYLE: Yes, it’s a threshold question.

JUDY WOODRUFF: So, day two, Marcia, and that — that’s the fundamental question that Susan just described.


JUDY WOODRUFF: Is this mandate constitutional?


And we’re going to — this is a real constitutional argument now. And we’re going to hear a lot about Congress’ power to make laws under the commerce clause, the necessary and proper clause, and even possibly its taxing and spending powers.

The United States argues this is classic economic regulation. The mandate is part of a comprehensive scheme to regulate the insurance market, to — and that it’s necessary to achieve the reforms it wants, and, as a fallback, Congress could enact this mandate as part of its taxing and spending power to collect revenue for the general welfare.

The challengers say, this is not regulation of economic activity; this is creating economic activity, and that’s way beyond Congress’ power.

JUDY WOODRUFF: So, moving to day three, two arguments. The first one is, if the court — the court is looking at something — if the court says the mandate is unconstitutional, what does that mean for the rest of the health care law? Does it stand? And then the second argument has to do with expanding Medicaid.

MARCIA COYLE: Right. Exactly.

The court always wants to know what the consequences of its actions might be. And that brings us to the issue of severability. A lot of laws, Congress will put a clause in saying what a court should do if it finds a certain provision unconstitutional, whether Congress wants you to strike just that provision or the entire law.

Here again, the court is asking, what should it do if it does strike down this mandate?

JUDY WOODRUFF: And, Susan, a lot — so, some complex legal arguments we’re going to be hearing for three days. What about the political ramifications of this? This has become almost issue number one in the presidential campaign.

SUSAN DENTZER: Absolutely.

And we should note that about two-thirds of Americans in polls say that they are opposed to the mandate, and about one-half actually want to overturn it. We will go on to say that one in seven Americans think it’s already been ruled unconstitutional. So there’s a lot of confusion.

But I think we know that going into the election, regardless of how the court rules, most likely at the end of June, this will be a huge issue in the election campaign. The Republican candidates universally want to repeal the Affordable Care Act. We have heard from President Obama he wants it to go forward. So it will be a major, major argument.

JUDY WOODRUFF: And, just finally and quickly, Marcia, to what extent is all the political noise affecting what goes on inside that court?

MARCIA COYLE: Well, it’s not supposed to. And I think the justices are going to focus very much on the legal arguments before them.

They’re human beings. They’re not unaware of what is happening outside the court building. There’s going to be a lot of activity there, as well as what’s been written about the law. But they will look at the law and the issues before them.

JUDY WOODRUFF: We look forward to seeing both of you with us much of next week.

Susan Dentzer, Marcia Coyle, thank you.

MARCIA COYLE: Thank you.

SUSAN DENTZER: Thanks, Judy.

JUDY WOODRUFF: And you can also find much more about the case and the impact of the law online right now. And beginning on Monday morning on our site, Marcia is going to be previewing each day’s court arguments.


Have a question about the Affordable Care Act or the Supreme Court case? Ask them here and on Twitter using hashtag #HCRchat.