SHSblog

Understanding the Supreme Court’s Obamacare Discussions

By Matthew Kopetsky

Monumentally important Supreme Court discussion regarding the future of our healthcare industry took place this week as the Affordable Care Act (ACA), nicknamed “Obamacare,” was debated. Unless you have four hours, 53 minutes, and eight seconds to listen to the recordings of the Supreme Court’s oral arguments, trying to interpret the outcomes of these discussions can be very confusing. Throughout the week, I attempted to boil down these discussions.

Day 1 (3/26/12): Does the Anti-Injunction Act prevent the Supreme Court from ruling on Obamacare until 2015?

• Background:  What is the Anti-Injuntion Act? – A 1867 law which prevents anyone from challenging a tax until after it has been paid and a refund has been pursued
• Key Issue:  Are the penalties for not having health insurance, which would be incurred under Obamacare, a “tax?” – If these penalties are deemed a tax, some argued that the Supreme Court can’t rule on Obamacare until after these penalties begin to be incurred (in 2014). This would likely delay a Supreme Court ruling until 2015.
• Key Quotes:
  • “[in the wording of the ACA legislation], they did not use that word tax”– Justice Stephen Breyer (liberal)
  • “This is not a revenue-raising measure because, if it’s successful, nobody will pay the penalty and there will be no revenue to raise” – Justice Ruth Bader Ginsburg (liberal)
  • “” – Justice Clarence Thomas (conservative)
• Possible Outcome:  The Supreme Court seems to consider these payments for not having health insurance to be “penalties,” not “taxes,” and therefore, will continue this week’s Obamacare discussions as planned

Day 2 (3/27/12): Is the Individual Mandate an over-reach of Congress’ power?

• Background:  What is the Individual Mandate? – A provision in the Affordable Care Act which would require Americans to buy health insurance by 2014 or pay a penalty
• Key Issue:  Does Congress have the power to require Americans to buy private goods (health insurance)? – Congress has the power to regulate interstate commerce and since the healthcare industry operates across state lines, it seems to fit this definition. However, the Supreme Court questioned where the “limiting principle” (limit to federal power) of the ACA legislation lies. Is healthcare truly a good that is universally required and would this ruling set a precedent for other similar industries?
• Key Quotes:
  • “Can the government require you to buy a cell phone because that would facilitate responding when you need emergency services” – Justice John Roberts (conservative)
  • “Everybody has to buy food sooner or later. So you define the market as food, therefore everybody is in the market. Therefore, you can make people buy broccoli.” – Justice Antonin Scalia (conservative)
  • “It was a big fuss about that [Social Security] in the beginning because a lot of people said – maybe some people still do today – I could do much better if the government left me alone” – Justice Ruth Bader Ginsburg (liberal)
  • “It’s different because of the nature of the healthcare service. You are entitled to healthcare when you go to an emergency room, when you go to a doctor, even if you can’t pay for it.” – Justice Elena Kagan (conservative)
  • “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. That’s my concern in the case.” – Justice Anthony Kennedy (conservative)
  • “You can get burial insurance. You can get health insurance. Most people are going to need health care, almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?” – Justice Samuel Alito (conservative)
  • “” – Justice Clarence Thomas (conservative)
• Possible Outcome:  Both conservative and liberal justices seemed to agree that Congress could require people pursuing healthcare to buy insurance but conservative justices don’t seem to believe that people can be forced to buy insurance before they have a medical need for it. Many are predicting that the five conservative justices (including Justice Anthony Kennedy who was originally thought to be a swing vote) will hold off the four liberal justices and deem the Individual Mandate in the law unconstitutional.

Day 3 (3/28/12):  Is the federal government’s “coercion” of state run Medicaid programs constitutional? If the Individual Mandate is found unconstitutional, can the rest of the bill still survive?

• Background:  What is a severability clause? – A clause in legislation (or any legal document) which dictates which aspects of a law shall remain if any specific components are deemed illegal/unconstitutional
• Key Issues:  (1) Is the federal government’s coercion of state run Medicaid programs – forcing states to expand their programs over six years to provide more coverage to uninsured/underinsured – constitutional? (2) Since the ACA lacks a severability clause, is it the Supreme Court’s responsibility to decide which aspects of the 2,700 page law shall remain? – Could the guaranteed-issue provision that no one can be denied coverage, the community-rating provision that you must charge people the same for health insurance, and/or Medicaid expansion survive individually?
• Key Quotes:
  • “My approach would say if you take the heart out of the statute, the statute is gone” – Justice Antonin Scalia (conservative)
  • “Would you be making the same argument if, instead of the Federal Government picking up 90% of the cost [of Medicaid expansion], the Federal Government picked up 100% of the cost?” – Justice Elena Kagan (conservative)
  • “When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite… We would have [created] a new regime [law] that Congress did not provide for, did not consider. That … can be argued at least to be a more extreme exercise of judicial power than striking the whole [law down].” – Justice Anthony Kennedy (conservative)
  • “” – Justice Clarence Thomas (conservative)
• Possible Outcome:  The nine justices appeared sharply divided along ideological lines (five conservative and four liberal).

Like everyone else on the internet trying to interpret the Supreme Court’s discussions over the past three days, in reality, I’m likely wasting my energy. No one, except maybe justices John Roberts and Anthony Kennedy (considered to be possible swing votes), can predict what the June decision will bring.