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Health Reform Law to Face Constitutional Test in Supreme Court

November 14, 2011 at 12:00 AM EST
On Monday, the Supreme Court agreed to hear arguments next spring on the constitutionality of the health care reform law. Jeffrey Brown discusses the political and legal implications with The National Law Journal's Marcia Coyle and NPR's Julie Rovner.
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JEFFREY BROWN: It was President Obama’s landmark domestic policy achievement, and now it will likely be the Supreme Court’s biggest case of the term.

Today, the justices agreed to hear arguments next spring on the constitutionality of the Patient and Protection Affordable Care Act, the health care reform law passed in 2010. It’s been challenged by 26 states. At issue is whether Congress has the right to require citizens to purchase health insurance, or pay a penalty if they don’t.

And we look at the court’s decision to take the case and the legal and political issues it raises with Marcia Coyle of The National Law Journal, and Julie Rovner, who covers health care for NPR.

Welcome.

MARCIA COYLE, The National Law Journal: Thank you.

JEFFREY BROWN: Marcia, the court agreed to take up several issues today, but start with the key one, the mandate, and a decision in the 11th Circuit Court of Appeals. What exactly will they look at?

MARCIA COYLE: OK.

The challenge to the mandate, which is essentially a minimum coverage provision, is that Congress exceeded its power under the Commerce Clause, under which it regulates economic activity among the states.

The opponents, which are the state — 26 states’ attorneys general here, they claim that a decision not to be insured is not economic activity; it’s inactivity. It’s nothing. People are not in the health insurance market, which Congress can regulate under the Commerce Clause.

The government counters, there’s no inactivity/activity distinction in the Commerce Clause. People who don’t have insurance do substantially affect interstate commerce, because eventually they will need health care, and those who are insured will pay for that health care.

JEFFREY BROWN: And the larger critique from opponents, of course, is like, where are the limits to what the federal government can do? If they can do this, they can do anything.

MARCIA COYLE: Exactly.

And that has been one of the arguments, one of the points that the government has struggled with in the lower courts. And we have heard opponents of the law saying, well, if the government can do this, they can order us to eat broccoli.

But the government says that that is sort of a red herring, that Congress can legislate for the general welfare here, and that’s what it has done.

JEFFREY BROWN: Now, Julie, remind us how the mandate fits into the larger health care law and what other parts of it might be at stake.

JULIE ROVNER, National Public Radio: Well, of course the law is much larger than just the mandate. The mandate is often referred to as the linchpin of the law. And indeed it’s probably the linchpin for the expanded coverage part of the law, the part that will allow many more people, up to 32 million more people, to get health insurance.

And indeed, if the mandate were to fall, it would probably — almost certainly take with it other provisions. Even the government has said it would probably take with it the part of the law that requires health insurers to accept everyone who applies and require health insurers to accept people who have preexisting health conditions.

But it could well not take with it other pieces of the law that are already in effect that allow 26-year-old — or young adults up to age 26 to stay on their parents’ health plans, that’s closing the doughnut hole in Medicare where seniors can get low-cost prescription drugs, that have to do with public health expansions, that have to do with increasing the supply of health care professionals, that there are many, many other provisions of this law that would likely — likely, I say — remain unaffected by this mandate.

JEFFREY BROWN: You’re saying these are ones that are already — a lot of them are already in effect.

JULIE ROVNER: Many of them are already in effect. Some of them are coming online in later years.

They are tenuously related to this mandate. And that’s another of the things that the court will be looking at as they go into this five-and-a-half-hour oral argument on this law.

JEFFREY BROWN: Yes, Marcia, five-and-a-half hours, that’s a little unusual in itself, right?

MARCIA COYLE: Very unusual. In fact, the court in modern times really has been having one hour of oral argument. And usually it has case — two cases in the morning and it’s done. And this case is likely to extend over two days.

JEFFREY BROWN: To Julie’s point, what are the options for the court here in terms of what it can do?

MARCIA COYLE: OK.

Well, it has several questions to answer. It has one big one even before it gets to the individual mandate. And that is whether it has the authority to even answer these questions. There’s an 1800s law that bars courts from hearing tax challenges before a tax takes effect. The penalty for not buying insurance doesn’t take effect until 2014 and wouldn’t show up on your tax return until 2015.

So the court has to first answer, do I have the authority to answer this?

JEFFREY BROWN: They might just say it’s not ripe yet, to come back later.

MARCIA COYLE: They could. A federal appellate — one federal appellate court has already said that.

Then, after they deal with the individual mandate, if they strike it down, as Julie pointed out, they have to decide whether the whole law falls or whether the mandate is severable, whether it can just strike down the mandate.

And then finally, there is a very surprising question. The states have said that the provisions expanding Medicaid, which is the federal state program for the poor and disabled, that they unconstitutionally coerce states into participating because it conditions federal funds on their participation.

JEFFREY BROWN: Now, this was a surprise, the Medicaid, that that was part of this, right, that the court would pick it up?

JULIE ROVNER: This was a surprise.

This — this appeared only in this case in the 11th Circuit. And in fact this is what mainly the 26 attorneys general were suing about. They also sued over the mandate, but in fact it was really the National Federation of Independent Business that got the standing to sue on the mandate.

What the attorneys general were still on the case about is this Medicaid question. What they’re saying is that it’s become coercive, that if the states don’t pay their share of this expansion of Medicaid — and it’s a very large expansion to about 60 million people — then the federal government could then pull all of their Medicaid funding.

So the states either have to do this or the states would lose all of their federal Medicaid funding. Even the judge, the lower-court judge in this original case said he didn’t buy that. And this was the judge, I might point out, who struck down the entire law, who said that because that one individual mandate provision was unconstitutional, the entire law must fall. He said that this Medicaid provision, that what the states were arguing, that that Medicaid provision was coercive, he said he didn’t think so.

JEFFREY BROWN: Now, it wasn’t surprising that the court took it up. But now the timing, it looks like it’s got a decision perhaps in June, right, plunked into the middle of a political campaign.

JULIE ROVNER: Plunked into the middle of a political campaign.

Now, normally, what you see with these big important Supreme Court cases is that the losing side is the one that gets all the — sort of the mojo, if you will.

We saw, when Roe v. Wade was decided in 1973, that that really — even though that was a win for the abortion rights side, that really created the modern day anti-abortion movement. You tend to see all the energy going to the loser. I’m not sure that would necessarily be the case this time, that if President Obama’s, you know, signature domestic achievement were to be struck down, that he would necessarily be sort of considered the one to get all the energy. So it’s really hard to tell how this would play out depending on how it goes.

JEFFREY BROWN: Marcia, a brief last word. Was it surprising to see the court jump into the political component like this at such a crucial time?

MARCIA COYLE: No. No.

The court almost had to take this case. Whenever a federal law is struck down as unconstitutional, I don’t think the court has ever turned down a request by the solicitor general of the United States to hear that case. So it was inevitable.

JEFFREY BROWN: And we’re going to see the arguments later on.

MARCIA COYLE: Probably in March.

JEFFREY BROWN: But, ideologically speaking, this is hard to parse. Right?

MARCIA COYLE: This is very hard to call.

Up — about a decade ago, the Supreme Court started becoming less deferential to Congress. The most recent Commerce Clause case in 2005, it shifted again more deferential to Congress. So I don’t know. It’s a new court. We have four new justices. We will have to see how it plays out.

JEFFREY BROWN: All right, we will.

Marcia Coyle, Julie Rovner, thanks, both, very much.

MARCIA COYLE: You’re welcome.