By Eva Marie Stahl, Community Catalyst
The awaited day is here. The Supreme Court announced that
it will hear the case against the Affordable Care Act’s (ACA) individual
responsibility requirement (and other related requests). For those immersed in
football season, this is the Super Bowl of legal challenges.
Game time. Be prepared, the oral arguments will last five
and a half hours. Here’s a breakdown:
The Court
will devote two hours to the constitutionality of the individual responsibility
requirement
Ninety
minutes will address “whether the ACA must be invalidated in its entirety
because it is nonseverable from the individual mandate.”
One hour
is devoted to whether the Anti-Injunction Act (AIA) prevents a ruling before
the individual responsibility requirement goes into effect in 2014.
The final
hour will address the constitutionality of the expansion of Medicaid
The Court will hear the case at the end of March 2012,
releasing a decision sometime in the summer if not before. The ruling will come
at the height of the presidential campaign, ensuring its outcome will affect
the election.
What is at stake?? The Court will address three main
issues:
- Individual responsibility requirement. This is the
centerpiece of the legal challenges to the ACA around the country. Anti-ACA
supporters take issue with the requirement that most Americans purchase health
insurance by 2014, if they can afford it. The Court will consider the
constitutionality of the individual responsibility requirement and will
subsequently review the severability of the mandate from the rest of the law.
In other words, if the individual responsibility requirement fails, can the ACA
stand?
- Anti-Injunction Act (AIA). The Anti-Injunction Act states
that consumers cannot challenge a tax law until they have paid the tax. This
issue was raised in the 4th circuit opinion regarding the two Virginia cases.
The argument is that jurisdiction to rule on the individual responsibility
requirement is precluded by the AIA simply because it has not happened yet!
This would lead to all cases against the individual responsibility requirement
being thrown out until 2015. If the AIA is upheld, millions of Americans would
have health insurance through Exchanges and Medicaid prior to a determination
of the constitutionality of the individual responsibility requirement.
- Medicaid expansion. Medicaid expansion as a threat to
state autonomy was raised initially by the 26 states and National Federation of
Independent Business (NFIB) case, originating in Florida. The group maintains
that the Federal government is coercing states, essentially forcing them to
participate in the Medicaid program. This coercion, the states maintain, is
unconstitutional. The Medicaid question has yet to be supported by any lower
court; however, analysts believe adding the Medicaid expansion issue has raised
the profile of the case.
The decision to address the individual responsibility
requirement was expected while the Medicaid expansion was not. However, the
Court seems to be giving a nod to the concerns of all participants, agreeing to
review the issues presented in the Florida case as well as the AIA, an issue
raised in the 4th circuit.
Analysts agree that the main issue at stake remains the
constitutionality of the individual responsibility requirement and further,
whether or not it may be severed from the law. If the requirement is struck
down while the rest of the law is left intact, it will raise a number of policy
and political questions going forward. Analysts have explored the consequences
of life without the individual responsibility requirement, concluding that the
ACA could still function though it would not be as successful at expanding
insurance coverage. Insurers, however, would be sure to raise a major outcry
over guaranteed issue and community rating provisions if the requirement falls.
Place your bets.?The 26-state and NFIB case (often
labeled the Florida case) dominates the spotlight as its arguments regarding
the individual responsibility requirement won over 11th circuit Judge Roger
Vinson. Vinson ruled against the individual responsibility requirement and
threw out the ACA altogether, maintaining that the law was not viable without
the requirement.
The Obama Administration, however, is feeling optimistic
after having two conservative judges rule in their favor. The first is Judge
Jeffrey Sutton of the 6th circuit, a former law clerk for Justice Antonin
Scalia. The second is Judge Laurence Silberman of the DC Circuit who eloquently
defended the individual responsibility requirement and is cited as a respected
conservative.
In the end, the Obama Administration believes that they
have a strong case in support of the individual responsibility requirement. Yet
if SCOTUS embraces the Anti-Injunction Act, it could delay any decision until
2015. This path offers SCOTUS a way out of the political quagmire that they
face in light of the 2012 elections. Yet, maybe not – with an early June
decision, four months remain in the campaign season. As one analyst noted,
“That’s a very long time in politics, especially for something that won’t have
any immediate, tangible effect on people’s lives”
Game on. Brief filings will begin as early as this
December as all sides prepare for their legal Super Bowl. So, bring on the
wings and get comfy – this is one of the longest oral hearings on record. We
will all be watching for the last minute Hail Mary.
(This blog originally appeared in the Health Policy Hub.)