New York Times

March 24, 2012

A Moment of Truth for Health Care Reform

The Supreme Court’s decision on the Affordable Care Act will have immense political importance. The law, which rivals Medicare in scope, is the biggest achievement of the Obama administration. Striking it down has become a Republican crusade.

The justices, like the rest of the country, are clearly aware of the politics of the moment. But a decision on the merits will endure long after this election season — it could alter the allocation of power within American government and Congress’s authority to solve national problems.

The act requires almost all individuals to obtain health insurance, either through private plans or public programs, or pay a financial penalty. It places new requirements on health insurance, like full coverage for preventive care. And it will subsidize insurance for low-income and moderate-income people, while expanding Medicaid programs in the states to cover many millions more.

Here is a look at the issues to be argued over three days this week in this extraordinary case.

MONDAY The first issue has not received much attention but is a crucial hurdle: the federal Anti-Injunction Act. This arcane law bars suits to block a tax until the tax is actually levied and paid. If the court decides that this law applies in this case, it could delay ruling on the legality of the individual mandate for three years.

Since no party in the Supreme Court litigation has claimed that the act applies, the court asked an independent lawyer to argue the position that the court cannot rule on the mandate’s constitutionality until the financial penalties for failing to obtain insurance go into effect in 2015.

Federal appeals courts are split on this question. The Fourth Circuit ruled that the penalty is a tax, so the suit it considered is barred for now. The appeals courts for the District of Columbia and the Sixth Circuit came out the opposite way.

Both the Obama administration and the challengers oppose the court-appointed advocate’s view. But if the court is persuaded by his argument, it could avoid making a hard decision in a heated election season.

TUESDAY Does the Constitution give Congress power under the commerce clause to require Americans to obtain health coverage? Every relevant constitutional precedent over the last 75 years says yes. The mandate isa core part of Congress’s effort to reform the national markets in health care and health insurance.

The critics insist that the mandate is unconstitutional because it regulates inaction. But the distinction they draw between inaction and action makes little sense. Refusing to pay a tax, for instance, is “inaction” that is clearly subject to government regulation. Choosing not to have health insurance is just as clearly a financial action — one that could shift future medical expenses onto others in the health system.

The court needs only to decide whether there was a “rational basis” for Congress to conclude that the health care of 50 million uninsured people affects interstate commerce. Not since the New Deal has the court struck down a law with an economic purpose as exceeding Congress’s power.

There may well be a split among the conservative justices about the mandate, with two or more joining the moderate liberals to uphold it. In 2005, Justice Antonin Scalia and Justice Anthony Kennedy joined the 6-to-3 majority in upholding Congress’s power to prohibit marijuana use for medical purposes. Justice Scalia wrote then, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

He might agree with what Judge Jeffrey Sutton, a George W. Bush appointee on the Sixth Circuit Court of Appeals, wrote in upholding the mandate: “Not every intrusive law is an unconstitutionally intrusive law.”

WEDNESDAY The morning session will be devoted to “severability,” the question of what happens to other provisions of the law if the individual mandate is struck down. The law’s opponents say the entire law must fall because they believe Congress would not have passed the other provisions, which raise money and reduce costs, without it. The Obama administration argues that the only provisions that would have to fall are those prohibiting insurers from denying coverage to people with pre-existing conditions or charging them higher premiums. (Those parts, it says, depend on the mandate adding healthier, cheaper people to insurance pools.) There is a third, more sensible position: the rest of the act stands because courts generally avoid striking down entire laws when one provision is flawed and Congress quite likely would have enacted the reform’s other elements without the mandate.

The second issue involves Congress’s power to require states to expand Medicaid. Although most of the expansion cost would be paid by the federal government, states would pick up a small part of it, starting in 2017. The Republican-controlled states argue that the law unconstitutionally “coerces” them to cover more people and that the penalty for failing to — allegedly losing all their Medicaid funding — leaves no choice but to capitulate. This issue is really just a policy struggle between the parties. Thirteen Democratic-leaning states filed a brief backing Medicaid expansion, skewering most of the Republican arguments. The 11th Circuit appeals court in Atlanta has ruled that the law is not coercive and that federal officials can impose lesser penalties than stopping all Medicaid funding. There is no reason for the justices to disagree. LINCOLN CAPLAN and PHILIP M. BOFFEY