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Public Policy

Weighing the constitutionality of the Affordable Care Act

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The Supreme Court of the United States will consider questions bearing on the constitutionality of the Affordable Care Act (a.k.a. the Patient Protection and Affordable Care Act) next year. The Justices will hear a record total of 5 ½ hours of oral arguments by March 2012, with a decision expected by June.

Will this decision mark the finale of the health care law? That is somewhat doubtful, particularly given the Court’s preference for reaching smaller decisions rather than larger. In addition, the Court has asked for arguments on whether the lawsuit is premature, given that no penalties have been levied against individuals yet for failing to purchase insurance. This question of timeliness (ripeness, in legal parlance) could be a key detour for questions of constitutionality.

The biggest question is whether individuals can be compelled to purchase insurance. The Obama Administration argues that everyone eventually enters the health care system, thus influencing the stream of commerce (Congress’ power to regulate interstate commerce). In addition, the Administration has come around to the view that these penalties are, after all, taxes (pursuant to Congress’ power to levy taxes). The Court will consider these issues, along with whether the law’s Medicaid expansion improperly coerces state action or resources. Finally, the jurists will consider whether infirm parts of law can be severed, allowing the remainder of the law to stay in place. Normally, Congress plans for this eventuality with a “severability clause.” However the Affordable Care Act specifically does not include this language.

Thus, the Supreme Court could declare all, some, or none of the law unconstitutional. Or, it could decide that the case is not yet ripe to be heard. Not exactly “Law and Order” style finality, is it?

NRF counseled others early on not to put all their eggs in the litigation basket. Some of the litigants before the Court have been our steadfast allies, both in making the law more workable as well as working with Congress to overturn all or parts of the law. But, we’ll be watching the Court closely in the coming year … to see if the Justices act – in this case – to un-do that which Congress has wrought. As the Court ought to...