Recently, the Supreme Court heard oral arguments on the Affordable Care Act, also known as “Obamacare,” and the traditional wisdom from the talking heads in the world of punditry seems to forecast a negative prognosis, suggesting that the justices look likely to either strike down the law or at least find the individual mandate portion of the bill to be unconstitutional.
I agree that, based solely on oral arguments, it seems as if the death notice of the ACA may be all but certain. However, my cautious prediction is that the justices will ultimately uphold the healthcare law in a 6-3 decision with Chief Justice John Roberts writing the majority opinion.
Obviously it’s impossible to predict these things with any scientific metric of accuracy. My prediction is really based mostly on a hunch — but perhaps an educated hunch.
When the individual mandate portion of the bill goes into effect in 2014, it will require employers and individuals to purchase health insurance or face a fine. This was a way to provide universal health insurance coverage without resorting to a single-payer system or a government-run health insurance agency option.
The exact origins of the mandate idea are murky, but I think most people agree that some form of the idea started in conservative circles such as the Heritage Foundation, and healthcare legislation that contained a form of the mandate were drafted by Congressional Republicans in the early ‘90s but failed to pass.
Conservatives originally supported a mandate as a way to keep free loaders (those without insurance who wind up in emergency rooms) from benefitting from a system without paying into it. Even Newt Gingrich and Mitt Romney supported this notion at one time.
The mandate contained in the ACA attempted to accomplish just this, but it was also a compromise (or perhaps acquiesce) to the healthcare and insurance industries to keep a private system in tact.
It can be safely assumed that the liberal wing of the court — Justices Ginsberg, Sotomayor, Kagan and Breyer — will likely vote to uphold the mandate, and the conservative wing — Justices Scalia, Thomas, Alito and Roberts — will likely want to strike down the mandate. This seems to only leave Justice Kennedy.
Most observers think the fate of the ACA in the Supreme Court will hinge on whether swing-voter Kennedy will find the individual mandate to be in violation of the “Commerce Clause” in the Constitution that gives Congress the authority to regulate commerce that crosses state lines.
At question are both whether the sprawling healthcare industry constitutes interstate commerce that Congress can constitutionally regulate and whether punishing people via a mandate for the inaction of not buying insurance falls within Congressional powers.
The Commerce Clause is an enumerated power in Article I, Section 8 of the Constitution that states that the Congress shall have power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Without going into a lengthy doctrinal history of how this power has been interpreted over the years, there certainly has long been a debate as to what constitutes interstate commerce and what falls within the purview of Congressional regulation authority.
Many conservatives with an originalist view of the Constitution believe that the Commerce Clause has been used in ways over the years that the framers did not intend.
However, as a recent article in “The Atlantic” points out, even ultra-conservatives, such as Robert Bork, have acknowledged the problem with overturning federal legislation under a strict originalist interpretation of the Commerce Clause.
Bork and Daniel Troy wrote a paper in 2002 stating: “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”
One of the oft-cited Supreme Court cases that acts as precedent for the broad Congressional authority granted by the Commerce Clause is Wickard v. Filburn, a 1942 case in which farmer Roscoe Filburn wanted to produce more than a regulated allotment of wheat for private consumption. The Justices rules that the Commerce Clause gave the federal government the authority to regulate wheat production on the basis that overproduction of wheat, even for private consumption, could affect prices across state lines and destabilize the national market.
Even under a strict originalist viewpoint, I don’t think anyone would disagree that the healthcare market is certainly a form of commerce with spillover that crosses state lines and the citizens of each state affect the overall national healthcare industry. The question is whether the market and its various components can be regulated as a whole by Congress via a mandate.
Supporters of the bill suggest that the mandate is a necessary regulation in order to pool risk together by forcing everyone to buy into the market — even those least likely for major health risks — in order to offset the costs of high risk individuals and keep premiums at a reasonable rate .
Kennedy seemed to agree with this notion, stating during oral arguments that “in the insurance and health care world….the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”
This is in congruence with an earlier ruling of a lower court concerning the ACA. In the case Seven-Sky v. Holder, the U.S. Court of Appeals for the D.C. circuit voted that the mandate was, in fact, constitutional. Judge Laurence Silberman, widely recognized as one the most conservative judges in the country, wrote the following in the court’s decision:
“We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation.
“That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.”
Silberman continued, writing: “It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.”
While the healthcare industry may arguably be unique in this context, this mandate has led many to wonder what limits there are to the Commerce Clause, such as when Scalia asked during oral arguments whether Congress could mandate that people buy broccoli.
The Commerce Clause has typically been seen as only applicable in cases in which an industry has spillover issues that cross state lines and present regulatory problems generally viewed as outside the reach of individual states and that substantially affects commerce.
Silberman concurred with this limitation in the Seven-Sky case, writing, “Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible.”
Barring some unforeseen national vegetable emergency, I don’t think anyone could reasonably argue that the broccoli industry will ever require such regulatory action by Congress.
So, I think at the end of the day Kennedy will likely not find the individual mandate to be in violation of the Commerce Clause.
However, Roberts is known to not be fond of 5-4 decisions and to have concerns over the court’s legacy during his tenure. Because this issue is of such importance, I think if Kennedy votes as I suspect he will, I think Roberts will then follow suit and want to write the majority opinion so he can control the language in it.
That’s my prediction, but I guess we’ll just have to wait and see the court’s decision in June.