3Qs: Diagnosing the national health-care law’s constitutionality by Matt Collette November 23, 2011 Share Mastodon Facebook LinkedIn Twitter Earlier this month, the United States Supreme Court announced it would hear oral arguments and issue a ruling on the constitutionality of the Obama administration’s controversial health-care reform legislation. We asked Kristin Madison, a Northeastern University professor with dual appointments in the School of Law and the Bouvé College of Health Sciences, to assess the upcoming case. What issues in the health-care law will the Supreme Court most likely scrutinize during oral arguments this spring? The Supreme Court has agreed to hear arguments on four separate issues. First, is the Patient Protection and Affordable Care Act’s requirement that individuals purchase insurance constitutional? The states involved in the lawsuit argue that Congress does not have the constitutional authority to impose the mandate. The federal government argues that because the constitution gives Congress the power to regulate commerce, Congress has the authority to mandate the purchase of insurance. The second issue is whether the mandate is “severable” from other provisions in the health care law. Severability is important because it will determine how much of the law will become invalid if the mandate is declared unconstitutional. If the mandate is unconstitutional and not severable, the entire Affordable Care Act will be invalid. If the mandate is severable, it will be invalid but other parts of the Affordable Care Act can remain in effect. The third issue involves a federal statute called the Anti-Injunction Act that prohibits certain legal challenges to taxes before they are collected. One appeals court determined that it could not hear a case involving a constitutional challenge to the mandate because the penalty imposed on individuals who fail to satisfy the mandate’s requirements is in fact a “tax.” If this analysis is correct, the mandate cannot be challenged until after the first penalties are collected in 2014. The final issue is whether the Affordable Care Act’s expansion of the Medicaid program is constitutionally permissible. The court scheduled five-and-a-half hours for argument instead of the usual one hour. Is this a common move by the court, and what does it say about how the justices view the case? For most of the cases it accepts, the Supreme Court devotes one hour to lawyers’ arguments before the Court. Scheduling five-and-a-half hours for oral arguments is highly unusual; the oral arguments in the Bush v. Gore vote recount case, for example, lasted only one-and-a-half hours. The decision to schedule such lengthy arguments likely reflects the number, complexity and importance of the issues involved. What would happen should the Supreme Court ultimately strike down the most contentious part of the legislation, the individual mandate? Would that invalidate the entire law or could other provisions remain in effect? When a Florida federal district court judge found the individual mandate unconstitutional, he struck down the entire Affordable Care Act. In doing so, he declared invalid not just the individual mandate, but also the Act’s insurance-related provisions, such as a prohibition on denying insurance to people with preexisting conditions, and numerous other provisions unrelated to the mandate, many of which had already taken effect. The appeals court reversed this part of the Florida judge’s decision, holding that the individual mandate was severable from the rest of the statute, so that the mandate was invalid but the Affordable Care Act’s other provisions remained in effect. If the Supreme Court were to find the mandate unconstitutional, it could strike down just that requirement (as the appeals court did), the entire statute (as the district court did) or something in between these two extremes. A district court in Pennsylvania, for example, severed the mandate, the preexisting condition provision and certain other insurance-related provisions from the rest of the Act. In determining how much of the statute to declare invalid if it finds the mandate unconstitutional, the Supreme Court would likely consider whether Congress would have enacted the other provisions of the Affordable Care Act in the absence of the individual mandate.