Today, the Supreme Court will begin to hear three days of oral arguments about the constitutionality of the Patient Protection and Affordable Care Act – President Barack Obama’s signature domestic policy achievement.
Central to the argument before the bench about the health care reform law is whether the minimum coverage requirement – or individual mandate as it’s known – and the Medicaid expansion are constitutional.
Under the law, beginning in 2014, all Americans are required to have health insurance coverage or pay a tax penalty. Americans with employer coverage satisfy the minimum coverage requirement. Individuals and families without access to employer coverage will be able to purchase health insurance through state exchanges, with subsidies available for low and moderate income families with incomes below 400 percent of the federal poverty level (slightly more than $75,000 for a family of three in 2012). Medicaid will also be expanded to cover all poor Americans below age 65.
The law also made several reforms to the private insurance market to improve the scope and quality of coverage while reducing the cost of care including barring insurers from denying coverage to people with pre-existing conditions.
Six hours of oral arguments have been scheduled through Wednesday – the longest amount of time given to any case since 1966. A decision is expected by the end of June.
Located just three miles from the U.S. Supreme Court, George Washington University is home to a number of experts in health policy, constitutional law and American politics. Last week, GW held a panel discussion on the Affordable Care Act and the Supreme Court featuring three of these experts: Sara Rosenbaum, the Harold and Jane Hirsh Professor of Health Law and Policy; Peter J. Smith, associate dean for research and faculty development and a professor of law in the Law School; and John Sides, associate professor of political science in the Columbian College of Arts and Sciences.
Ms. Rosenbaum first outlined the major arguments in the case. Mr. Smith discussed the constitutional arguments of the case and the potential ramifications from the court’s decision, while Dr. Sides explained how the court’s decision could play out in the election later this year.
George Washington Today caught up with Ms. Rosenbaum, who holds appointments in both the School of Public Health and Health Services and the Law School, to get her take on the arguments going before the Supreme Court and the decision’s potential effect on U.S. health policy.
Q: What are the big questions that the Supreme Court will be considering?
A: The court will hear arguments on four questions. First, is the minimum coverage requirement known as the mandate constitutional? Second, are the Medicaid expansions constitutional?. Third, in the event that the minimum coverage requirement is declared unconstitutional, must the entire law be declared unconstitutional? The fourth is a procedural question that will be considered on the first day: Does the Anti-Injunction Act, a special federal law aimed at preventing premature challenges to federal tax laws, bar the court from hearing a challenge to the minimum coverage requirement before the law actually takes effect and an individual incurs a penalty?
Q: Where does this case rank among the serious constitutional questions in the history of the Supreme Court?
A: This is one of the biggest and most important cases on the powers of Congress in the history of the modern Supreme Court. One would have to go back 70 years or longer to identify cases that are this important in terms of determining whether Congress has the power to grapple with a national health policy problem, particularly one that involves fashioning a range of market solutions. Today, health care consumes almost 20 percent of the gross domestic product and presents extraordinary economic and social challenges. It was almost inevitable that the greatest constitutional case of our time would involve Congress’s power to reform the health care system.
Q: What are the implications for health care costs if portions of the Affordable Care Act are found to be unconstitutional?
A: The only way that the country is ever going to get control of its health care costs is to bring all Americans into the insurance system and then to begin reforming health care quality and costs. Without the reforms, the problems will continue to mount, not only for Americans without health insurance but for the rest of us who are one illness or layoff from the loss of coverage. Furthermore, without reform, there simply are too many people outside the health care system – who are known in economic parlance as “free riders” – whose costs must be borne by the rest of us through endless cost-shifting.
Q: What are the ramifications for health reform if the individual mandate is deemed to be unconstitutional?
A: The individual mandate is an integral part of the law, but it’s also part of a much bigger law. Declaring the minimum coverage requirement unconstitutional means sacrificing the law’s two core principles. First, no one should be excluded from insurance because of health status or affordability. And second, people who are sicker should not be charged unconscionable rates for their health insurance. These two principles are the heart of the matter. According to the U.S. Justice Department, these two principles cannot survive without the minimum coverage requirement because it creates the large insurance pools that are essential to opening up access to coverage to everyone. However, the law contains scores of provisions aimed at improving access, lowering costs and improving quality, and these other provisions certainly could survive the loss of the minimum coverage requirement. This is why most experts do not think that the Supreme Court would declare the entire law dead if the minimum coverage requirement goes down.
Q: What will the overall effect be for the nation if the court strikes down the entire law as unconstitutional?
A: First, declaring the law unconstitutional will mean that the court has considerably narrowed the scope of congressional powers. There would be considerable downstream effects on Congress’s power to act to solve national social and economic problems. Such a decision would be like dropping a boulder in the water. If the Medicaid expansion is struck down as unconstitutional, it calls the entire Medicaid statute into question, not just the recent expansions. Such a decision would raise questions about the legitimacy of congressional spending under a host of laws, including federal highway laws, federal education funding, child welfare, social services and infrastructure repair. Even certain federal civil rights laws that regulate state conduct on matters such as race and disability discrimination would be called into question. The Medicaid claims really are all about Congress’s power to put some ground rules into the funds it invests in state programs. And if the court says that Congress can’t deal with a broken health insurance system by making the market ground rules fairer, the implications for other congressional interventions into other parts of the national economy are just enormous.
Q: If the Medicaid expansion is upheld, do you think the states will comply?
A: The financial incentives in the Affordable Care Act are incredibly generous, far more so than in any previous coverage expansion. The federal government is basically paying the states almost completely to expand their Medicaid programs, and because the incentives are so high, there simply is no way that such an inducement can be considered to have crossed the line into coercion, especially since Medicaid remains voluntary. Put another way, states are being paid to expand their programs. My assumption is that all but a very small handful of states will move ahead, just as states have moved ahead in the past.
Q: How do you think this decision will come down?
A: I think it will be a decisive ruling in favor of the law. Because the constitutional questions are so profound and the future of health care is on the line, I believe that the court will conclude that Congress has the power to devise a 21st-century solution to a pressing national problem. And no one disputes that health care is a major national problem. Some members of the court may hate the law or believe that something else should have been passed, but it is not the job of the court to second-guess Congress. The court is incredibly sophisticated, and it can separate a political, cultural or social battle from a constitutional crisis.
Q: What are the political ramifications of this case?
A: A loss by the Obama administration would empower Republicans to argue that President Obama can’t be trusted with his authority to create laws that are constitutional. If the law is upheld, the election for the law’s opponents will be about removing the president and Democratic members of Congress from office.