Health Care Reform at the Supreme Court, Day 2
By Sergio Muñoz, Senior Policy Analyst, Health Policy Project, NCLR
On day two of the oral arguments over the Affordable Care Act (ACA), the Supreme Court tackled the centerpiece of health care reform, the individual mandate to carry health insurance. Unfortunately, it became painfully obvious that the answer to this incredibly important question may very well be split down ideological lines.
During his confirmation hearings, Chief Justice Roberts claimed the analogy that a federal judge is like an umpire—objectively calling balls and strikes under commonly accepted rules. If anything concrete came out of Tuesday’s acrimonious argument, maybe it’s that we can finally put to rest his misleading visual. Sharp comments on the constitutionality of the responsibility requirement showed that not only are the justices calling the pitches differently—and ideologically—they might not even be playing the same game.
Under the ACA, Congress eliminated the practices that were leading to spiraling health care costs and positioned the individual mandate as a balancing solution to an out-of-control system. No longer can insurers rampantly discriminate against those with high health care costs—people with preexisting, chronic, or otherwise serious conditions. In exchange for the guarantee of affordable care, the uninsured must either obtain public or private health insurance or pay a tax penalty.
That’s the individual mandate. Is it constitutional? Yesterday’s arguments revealed that there are three answers to that: Yes! No! And, maybe.
The one thing that was clear is just how political this case has become. The notion now seems improbable that two of the court’s conservative members, Justice Scalia and Chief Justice Roberts, might adhere to the logic of their prior decisions and uphold the mandate. The ACA’s protector, the U.S. Solicitor General, attempted to defend the individual mandate under Congress’s constitutional powers to regulate interstate commerce or to tax for the general good; with their relentless and skeptical rhetorical pummeling, Scalia and Roberts left little question as to their ideological allegiance.
Indeed, it became apparent that the main reason that liberal justices of the court likely thought the individual mandate was a constitutional exercise of one of those two powers was due to the fact that they spent most of their time bolstering the government’s arguments.
These divisions remained as the opponents of the ACA offered their arguments, but with two notable shifts. Justice Kennedy, the court’s swing vote, seemed to suggest that the limiting principle for Congress’s powers to regulate problems such as the health care market was the effect of the uninsured upon the health care market at large. An effect that is not present in other commercial industries, making the uniqueness of the health care market itself a limiting principle. Chief Justice Roberts as well seemed to think that health insurance was not directly analogous to other industries, such as the automotive industry—a comparison that was repeatedly made by multiple lawyers and justices.
Even more, Chief Justice Roberts seemed to highlight the inseparability of the tax penalty from the individual mandate, hinting that the easier sell would perhaps be the clearer power of Congress under its taxing authority, as opposed to its commerce powers. Make no mistake though: these friendly comments were hardly saving graces. The Obama administration had a very tough day.
Ultimately, these are just tea leaves. The justices have three months to ruminate if they haven’t already made up their minds. When we look at the final decision in June, we may look back on these questions as just questions, however, a few things are certain.
- Justices Ginsburg and Breyer both recognized that any decision striking down the individual mandate could raise serious questions about the constitutionality of other federal programs that have long protected the country’s most vulnerable and at-risk people.
- This is going to be a bitterly divided opinion.
- The cliché that this court has become Justice Kennedy’s is very true. He will probably be the swing vote yet again.
The question of whether the individual mandate is constitutional may break down on ideological lines as the four liberal justices seem convinced it is constitutional, and at least three conservative justices have indicated that they think it is not.
If Chief Justice Roberts wants to make sure that the ensuing decision isn’t starkly political, however, he better take his umpire duds out and start figuring out a way to avoid a 5–4 decision. Someone’s going to have to step up to the plate or this will result in a decision as deeply dividing as Citizens United or Bush v. Gore.