Editor’s Note: This article is the second in a two part series analyzing the Supreme Court’s upcoming hearing on the Patient Protection and Affordable Care Act, and all the relevant issues surrounding the case.
Next week, the Supreme Court is scheduled to take up the most controversial legal question in a generation as it examines whether the Patient Protection and Affordable Care Act (ACA), also known as “Obamacare,” survives a myriad of constitutional challenges.
This series will serve as a primer, giving background information and pertinent analysis to spin up individuals interested in learning the ins and outs of the legal question without getting lost in legalese and jargon.
The Individual Mandate (Arguments March 27, 10 a.m. - 12 p.m. EST)
At the heart of health care reform lies the individual mandate, which makes it so that individuals must purchase health insurance or else face a fine assessed by the government.
The question before the Court will be whether Congress has the power under the Commerce Clause to require that individuals purchase health insurance.
The Commerce Clause states that “the Congress shall have power…to regulate commerce” among the states and “to make all laws which shall be necessary and proper” to execute that power. The ACA requires that individuals obtain “minimum coverage” or else pay a fine each year that they fail to obtain sufficient coverage.
Challengers have asserted that this mandate unquestionably violates the Commerce Clause. They contend that being forced to participate in interstate commerce is fundamentally different from having your voluntary participation regulated. They further argue that the government’s attempt to blur the line is intentionally misleading and that the Court should draw a clear line between regulating commerce and forcing someone to engage in commerce so that the government can then regulate it.
The government asserts that everyone, by default, will engage in commerce in the area of health care at some point in their lives, whether they are insured or not. The government contends that the power to regulate in the area of health care naturally follows from that inevitable participation because it merely regulates how an individual participates, not whether they do.
Opponents of the law argue that if the Court upholds this mandate then there is nothing stopping the government from mandating that we purchase cars from GM or buy broccoli every month, as these two are actions that fall under interstate commerce and theoretically everyone uses some form of transportation and everyone eats. The challengers contend that the government has never been allowed to force someone into commerce and that allowing it would effectively wipe out any limitations on federal power that the Commerce Clause may still impose.
The government counters by saying that everyone participates in the health care market and that because health care is such a massive part of our economy (roughly 16% of GDP), the ability to regulate how the commercial market functions is necessarily covered by the Commerce Clause.
Courts below have split 3-1 in favor of upholding the individual mandate, including several opinions by conservative judges. However, the outcome of the individual mandate question at the Supreme Court level is anyone’s guess. The decision will likely be determined by which plurality of Justices can win the horse-trading game and convince a waffling judge or two to sign onto their opinion. Whichever way the Court comes down, expect the opinions to be complicated, nuanced, and narrowly written – bright line rules will be hard to come by with such a divisive and politically contested issue.
Severability (Argument March 28, 10-11:30 a.m. EST)
The question of severability is a tangential issue to the individual mandate in that it only becomes relevant if the individual mandate (or some other part of the law) is struck down.
In legalese, severability is the idea that if a portion of a law is ruled illegal or unenforceable, then that part is “severed” from the rest of the law, removing the portion that was struck down while retaining the rest of the law.
Most legislation has a severability clause which states a rule to that effect (i.e. if any part of this law is found unconstitutional, the rest of the law remains unaffected). However, health care reform was conspicuously lacking a severability clause, making opponents argue that if the individual mandate is struck down it cannot be severed from the rest of the law. This would mean that if the individual mandate were ruled unconstitutional then the entire law, by extension, would be ruled unconstitutional with it. This would effectively wipe the law from the books, forcing Congress to either repass a constitutional version of the law or immediately start rolling back programs already implemented and shutting down future implementation programs.
The government argues that severability clauses are not required and the judges almost always understand that the common law principle of severability persists even without express language to that effect. The government contends that the Court should understand the law as implicitly including a severability clause and conclude that the rest of the law must remain untouched should the mandate fail constitutional scrutiny.
However, even if the government were to carry the day on this question, it would be a pyrrhic victory at best. Politically, this may be an awful outcome for the Obama administration because eliminating the individual mandate would cut the revenue source funding the law without actually eliminating the law. This means that something would have to be done to address the budget gap, forcing the president to either pass a constitutional version of the mandate (if that is even possible) or forcing him to ask for Congress to repeal the law so as to avoid massive cost burdens.
It is unlikely that the Justices will go so far as to declare the lack of severability destructive to the whole law. Courts have a long tradition of treating severability as an accepted legal truth that doesn’t necessarily need to be spelled out in each law. Expect this question to get short-shrift in the opinion, especially since it would require an invalidation of the mandate to even come up for discussion.
The Court is expected to hand down opinions sometime between late June and early October. Whichever way the Court decides, be it to punt, uphold, or strike down, the debate surrounding health care reform is sure to be a dominant topic surrounding the 2012 elections and the place and function of the Court in the political arena.
Be sure to check back next week, when I will provide a blow by blow analysis of the legal arguments made and the questions asked, alongside direct links to the audio of the oral arguments.
For those of you who can’t wait, the arguments will be live-blogged by SCOTUSBlog on their respective days. Audio of oral arguments will be made available by the Court on the day the arguments take place.