• Affordable Care Act Before The United States Supreme Courts
  • May 30, 2012 | Author: William T. Young
  • Law Firm: Johnson & Bell, Ltd. - Chicago Office
  • The legal challenge to the Affordable Care Act, referred to as Obamacare, found its way recently to the United States Supreme Court after an appellate court found the act unconstitutional. The primary challenge was to the individual mandate in which nearly every adult without health insurance would be required to purchase health insurance.  The question is whether the U.S. Constitution enumerates such a power for Congress to pass such a law under the Commerce Clause.  This issue and the survival of the act itself has sparked a debate that has been at the core of American legal discussion since before Marbury v. Madison

    The argument against the individual mandate is that such powers are a function of the police power, which the Constitution reserves to the states. To permit the individual mandate would then create federal power without limit. Most prior cases under the Commerce Clause were based on some action taken.  Whereas, to hold that inaction could be regulated, it would infringe on the limitation of power that was not intended. Additionally, some subscribe to the notion that states are better positioned as incubators of reform. 

    The argument for the individual mandate and the act, generally, centers on the claim that millions of people choosing to not buy health insurance substantially affects interstate commerce. Without the mandate, the entire act may not be affordable, which will leave millions without medical care.  It is argued that this will, in turn, increase the cost of health care to uninsured people and transfer the costs largely to physicians, hospitals and the government.  Fundamentally, almost all Americans, it is argued, will at one time or another receive medical care, whether or not they have insurance.  Therefore, it is sensible policy to require nearly every adult American without insurance to purchase insurance.

    An interesting twist is the argument that the penalty imposed for failure to purchase health insurance is essentially a tax and that, therefore, it should be upheld under Congress’ very broad power to tax.  Indeed, some observers agree that Congress could have imposed a tax to accomplish the same goal and require every American to pay to the tax.  If the penalty is viewed more akin to a tax then the Anti-Injunction Act (AIA) may be applicable. The AIA forbids Constitutional challenges and requires that lawsuits be brought only after the tax has been paid or is due.  Observers agree, however, that this argument appears to have held little sway over the justices.

    If the court finds the individual mandate unconstitutional, the question turns to whether the entire act will be struck as a result. The act does not provide a severability clause wherein even if one provision of the act is unconstitutional, the remainder of the act should stand.  Consequently, the question becomes whether the act can remain fully operative and function as Congress intended without the individual mandate.  An additional question is whether the act would have been passed without the individual mandate.  Critics strongly disagree over the severability issue.  The court is expected to issue a written opinion this June.