The Debate Over The Fate of Obamacare In the Supreme Court From Both Sides: What Were They Really Arguing About?

No matter which side of the health care debate you land on, nearly all can agree that if the 2010 Patient Protection & Affordable Care Act stands, it will have a long ranging impact on the health care industry, the economy, and on politics. The United States Supreme Court devoted more time to the challenges to this law, than it has on any other case in forty-five years, holding three days of hearings on the issues raised in a myriad of cases resulting in this appeal.   The Court sought to determine whether it was premature to hear such a challenge to the law before it went into effect; whether the individual mandate to buy health insurance or pay a penalty is unconstitutional, and if it is unconstitutional, whether any part of the law can remain; and whether the law’s expansion of Medicaid is unconstitutional.  

Twenty-six states and private businesses have brought challenges to this law through the federal court system, raising these issues which the Supreme Court is now considering.  The Court heard much publicized oral arguments March 26, 27 and 28, while outside the ferocity of public opinion on both sides was demonstrated by the protests.  (Now former) Presidential hopefuls tried to make their voices heard in opposition to the law, while President Obama said at a news conference that the Supreme Court would be acting in an “unprecedented” way if it overturned his signature health care law, which both Republicans and the White House refer to as “Obamacare”.  

On the first day of arguments the parties debated over whether the penalties imposed by the law constituted a tax.  If the penalties are a tax, the entire argument over the constitutionality of the law may be premature.  The 1867 Anti-Injunction Act prohibits challenges to a tax law before it goes into effect. The purpose of this law was to not allow individual litigation to interfere with revenue stream to be created by taxes, by imposing an injunction before the tax goes into effect. The current argument is that the penalties imposed by the 2010 Patient Protection & Affordable Care Act are to be collected on an individual’s tax return, and are therefore a tax.  The first people required to pay the penalty will do so with their return filed in April 2015, for their failure to maintain health insurance in 2014.  Supporters of the new law argued that simply because the penalties are collected on a tax return does not define them as a tax, and that the legislature was clear to use the word “penalty” in place of “tax”.
  
Next, the Court turned to whether the “individual mandate” as it has been called, the requirement that each person purchase health insurance or pay a penalty, is unconstitutional.   The debate focused on whether Congress can compel an individual to make such a purchase under the Commerce Clause of the Constitution.  Proponents of the law argue that this is a valid exercise of the Commerce Clause power as the drain of the uninsured and non-payers on the health care field, have increased costs to an unsustainable level.  Justice Ruth Bader Ginsburg cited the costs forced on others by those who do not maintain health insurance as the basis to invoke Congress’ powers under the Commerce Clause.   Also, the attorney for the U.S. Government stated that Congress did in fact have power to regulate this industry as every person will need health care in their lifetime.  Opponents claim that the law is an unprecedented power grab by Congress.  They fear that if Congress has the power to force an individual to buy health insurance, it can force an individual to buy just about anything it deems necessary.
  
In the final day of hearings, the Court turned its consideration to whether, if the individual mandate was found unconstitutional, any remaining provisions of the law could stand.   The attorney for the U.S. Government conceded that if the individual mandate was unconstitutional, two key provisions that rely upon it, must also be removed.  These are (1) the prohibition against denying coverage or requiring an increased premium for persons with a pre-existing condition and (2) the limits on how rates are set.  The U.S. Government attorney admitted that these provisions as so intertwined with the funding of the individual mandate that they must also be removed if the mandate was struck down.  However, he also argued that the remaining provisions of the law should be kept intact.  In contrast, the challengers to the law argued that funding of the entire law was predicated on the individual mandate and must be struck down.
 
The Court also considered on the final day of arguments, whether the law’s expansion of Medicaid was unconstitutional.   A provision in the law requires States who seek federal aid through the Medicaid program to enroll a larger number poor into the Medicaid rolls.  States can refuse, but only by refusing to accept federal Medicaid dollars.   The Supreme Court has previously said that the federal government’s imposition onto the states cannot be “so coercive as to pass the point at which pressure turns into compulsion.”   The challengers to the law argued here that the Medicaid program had grown so large that it would be impossible to proceed individually outside the program.  The U.S. Government argued that the program was a voluntary gift of funds given by the federal government, and as such could not be coercive.
 
The decision regarding the fate of “Obamacare” is anticipated this summer.   Commentators seem to be predicting that the swing votes will come from Justice Kennedy, the conservative Justice who is the most often to side with a block of liberal Justices, or from Chief Justice Roberts.    Many articles and media outlets have sought to predict the outcome of these appeals based on comments from the Justices during the oral arguments, especially those from Justice Kennedy that seemed to lean toward finding the law unconstitutional.   However, until the opinion is actually released no one can say how the Court will rule.  In fact, if the Court chooses to find that the penalty imposed by the law is a tax, and the constitutionality of that tax cannot be decided until it goes into effect, the fate of this legislation may be delayed until after 2015