Friday, November 18, 2011

READING THE SUPREME COURT TEA LEAVES

The announcement on November 14 that the Supreme Court will review various aspects of the constitutionality of the Affordable Care Act has set legal experts to guessing possible outcomes.

The Court accepted just one of four Appeals Court decisions for review, but the one chosen, from the Eleventh Circuit, covered every major issue and included as plaintiffs twenty-six state attorneys general who oppose the ACA. The Eleventh Circuit ruled in August that the ACA’s individual mandate provision was unconstitutional, but ruled against the plaintiffs on all other issues.

It’s obviously na├»ve to think that the Justices haven’t already thought a great deal about the issues, and their thinking presumably influenced the decisions as to which questions raised in the lower courts they should address. So what can we guess from the four issues to be argued before the Court in the spring of next year?

The first issue, raised by two of the Appeals Court panels, is whether the Anti-Injunction Act dictates that no consideration can be given to other issues until the penalties associated with the individual mandate are enforced, assumed to be no earlier than 2015, after full implementation of the ACA. The Anti-Injunction Act essentially bans attempts to repeal new taxes until they are in the process of being collected, and its relevance to the ACA depends on whether the individual mandate penalties are interpreted as a form of taxation.

Even though both the Obama administration and the plaintiffs agree that the Anti-Injunction Act should not apply, it has clearly become an important issue since the Fourth Circuit cited the Act in throwing out the case filed by Liberty University, followed by one of the three appeals judges of the DC Circuit making a similar argument. While one or two commentators have suggested that the Justices might want to duck the entire ACA issue in an election year for fear of being accused of playing politics, the government’s apparent eagerness for a decision on the constitutionality question, combined with the chaos that would ensue if the ACA were determined unconstitutional after it was implemented may be effective practical constraints on a possible Anti-Injunction Act ruling.

The second issue—the surprise—is whether the ACA’s Medicaid expansion is unconstitutional because it forces states to increase their spending, an argument that the lower courts have all essentially rejected. One guess is that taking up the issue, which required four Justices’ votes to include, might be a sop to the most conservative members of the Court and those most concerned about the power of the federal government. Given the lower courts’ lack of support for the Medicaid unconstitutionality argument, it seems the odds for its gaining much traction from the full Court must be quite slim.

The third issue is the really big one, of course: is the individual mandate constitutional? How the Court will rule is anyone’s guess. Given the Court’s conservative reputation, the anti-ACA plaintiffs might have reason to feel optimistic. However, the opinions of two highly respected conservative judges in the prior Appeals Court hearings held that the mandate is constitutional—although without indicating enthusiasm for such a finding. Some legal commentators have suggested that with the four more liberal members of the Court almost certainly seeing the mandate as meeting the constitutionality test, and therefore only one of the five other Justices’ votes needed to uphold it, the Obama administration has the odds in its favor. On the other hand, the plaintiffs’ argument that the federal government should not be forcing citizens to make a purchase they don’t want is one that may resonate with the possible swing votes.

The final issue is one that will only be considered if either (or both) of the two preceding fails the constitutionality test: what other provisions of the ACA should also be thrown out? In effect, the Court is trying to second-guess the intent of the Congressional writers of the ACA. Which provisions were included only because of the belief that either the Medicaid expansion or the individual mandate would actually be implemented? Given the months of negotiation that led to passage of the ACA and the sheer size of the Act, it’s a difficult task that the Justices have set themselves. At the same time, it may prove to be an essential one; for example, if the individual mandate requirement is overturned, ACA provisions dictating benefits and eliminating medical underwriting could destroy the individual and small group insurance markets.

So, we’ll have to wait a while. The Court is expected to hear oral arguments in March of next year, and to issue its decision some time in early summer. It will be a decision that could change the direction of the 2012 presidential election.

1 comment:

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