The Supreme Court will engage this week in a historic three-day showdown over health care, leading to decisions that could ensnare everyone from private citizens to the president of the United States.
During oral arguments longer than any seen since the mid-1960s, the court’s nine justices must calculate whether the Obama administration’s signature health care law goes too far and violates the Constitution. The answer – or answers – will:
“It’s going to be enormous,” said Kenneth Janda, a professor emeritus of political science at Northwestern University.
Congress itself is playing the fanfare, with a largely symbolic House of Representatives health care vote Thursday to repeal the law’s provision for a 15-member independent commission to help control Medicare costs.
Theatrically speaking, the House’s curtain-raising action on the eve of the court cases enabled lawmakers to rehearse their arguments and underscore the high stakes.
Across Capitol Hill, the history-making is apparent in everything from the extraordinary 100-plus so-called “friend of the court” amicus briefs filed in the cases to the unusually speedy same-day release of the arguments on audiotape. Several dozen talk-radio hosts will broadcast from temporary studios near the court. Senators had urged the court, unsuccessfully, to televise the proceedings.
“It’s a big deal,” said Sen. Patrick Toomey, R-Pa. “The law has become emblematic of the overreach of this administration.”
The six hours of arguments will begin Monday morning and conclude around noon on Wednesday. They’ll address four key legal questions.
Simply put: Can Congress compel individuals to buy insurance? Can Congress pressure states to expand Medicaid coverage by threatening to withhold funds? Can the rest of the law survive if one part is struck down? And, from the get-go, are lawsuits challenging the measure premature?
The law contains hundreds of provisions, some uncontested, such as the requirement that insurance companies offer coverage for children up age 26 on their parents’ insurance.
Health care exchanges, or marketplaces, will allow consumers to comparison-shop for coverage once they’re fully up and running in 2014.
Starting that year, the individual mandate also requires most people to obtain health insurance and imposes annual financial penalties, starting at $95, on those who don’t. The law pressures states to expand Medicaid eligibility to those with incomes of up to 133 percent of the federal poverty level; if states don’t, they’ll lose federal money.
The individual mandate is the hottest topic. How much power does the Constitution grant Congress?
The Constitution’s Commerce Clause authorizes Congress to “regulate commerce … among the several states.” Separately, the Constitution permits Congress to pass laws that are “necessary and proper” to exercise its authority.
Since the 1930s, the Supreme Court had interpreted these clauses liberally. But in more recent cases, such as one in 1995 that struck down a federal law regulating guns near schools, conservative majorities have stressed congressional limits.
“If you can say to somebody, ‘Your failure to purchase health insurance is within the role of the federal government,’ why can’t the federal government say you have to go to the gym or you have to eat your broccoli?” then-Sen. George LeMieux, R-Fla., declared during Senate debate on the measure.
In response, the Obama administration stresses that the law is all about regulating commerce, because of the substantial effect health care has on the national economy. The uninsured consumed $116 billion worth of health care in 2008 that they didn’t pay for, officials estimate. Health care providers shift those costs onto insurance companies, which generally pass them on to the insured.
“The act breaks this cycle through a comprehensive framework of economic regulation and incentives that will improve the functioning of the national market for health care,” Solicitor General Donald Verrilli Jr. argued in a brief.
If the court strikes down the individual mandate, justices also must decide whether it can be severed from the rest of the law or the entire law must sink along with it.
Naturally, the Obama administration wants the rest of the health care law to survive even if the mandate is struck down. Opponents do not.
“You can’t just carve it out of the bill,” said former Florida Attorney General Bill McCollum, who initiated an early court challenge.
Practically speaking, though, a conservative-minded court might well hesitate to gut an entire law that’s already taking effect. Insurance companies, for instance, already have extended family coverage to some 2.5 million young adults under the age of 26.
The final challenge – questioning the Medicaid expansion, which is set for Wednesday – is a big sleeper that caught by surprise many who hadn’t expected the court to go so far. States argue that they’re being forced to spend money they don’t have to expand coverage. Congress, they say, can’t simply coerce them with the threat of withholding billions of dollars.
This could be huge, going well beyond health care. In the past, for instance, the court has allowed Congress to withhold highway funds from states that set legal drinking ages below 21. If the Medicaid expansion falls, future Congresses will lose clout.
“It has not received the same kind of attention as the individual mandate, but it is extremely important,” Jane Perkins, the legal director of the National Health Law Program, an advocacy group for low-income individuals, said of the Medicaid case.
The court is likely to issue its decisions by the end of June, when the 2011-12 term expires. The outcome will occur in the heat of the year’s election campaigns, when both parties will want to keep the issue alive, spinning the decisions to their own advantage. Expect a summer of congressional rhetoric, followed by campaign ads in the fall.