Supreme Court Upholds Affordable Care Act David L.

Douglass As you have probably heard, the Supreme Court largely upheld the constitutionality of the Affordable Care Act, most notably the provisions concerning the so-called mandate, which the Court ruled to be a constitutional exercise of Congress taxation power. The only portion struck down is a requirement imposed on the states to expand Medicaid coverage or risk loss of federal funding. The significance of this ruling, which is not a core provision of the ACA in any event, is unclear because the Court appears to have interpreted the provision to remedy the defect. In case youre interested, I have been through the Syllabus. (The 193 page opinion will take a bit longer to digest.) Heres my quick take. The majority opinion, by Chief Justice Roberts, appears to carve a judicious, some might say statesmanlike, path through the various arguments. (Perhaps he was channeling Chief Justice Marshall). Roberts rejects the argument that the ACA is a constitutional exercise of Congresss power to regulate commerce, holding that that power presumes the existence of commerce. Where one has not purchased health insurance there has been no commerce and thus nothing to regulate. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. (Syllabus)(original emphasis). (In other words, we are not creating precedent that may empower the government to make us buy broccoli). Nor can the legislation be upheld under the Necessary and Proper clause, which has always been held to be derivative of not supplementary to Commerce Clause power. Instead, Roberts upholds the statute under well-settled constitutional doctrine that every reasonable construction must be resorted to, in order to save a statue from unconstitutionality, Hooper v. California, 155 U.S. 64, the question is whether it is fairly possible to interpret the mandate as imposing such a tax. Syllabus (citations omitted). In answering that constitutional question, this Court follows a functional approach [d]isregarding the designation of the exaction, and viewing its substance and application. [citation omitted] Such an analysis suggests that the shared responsibility payment may for constitutional purposes by considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Id. [citation omitted]. So, in the bigger picture Chief Justice Roberts has articulated the clear principle that the role of the Court must resort to every reasonable construction to uphold duly enacted legislation (I think I am going to have to reread Citizens United). One interesting observation, many expected a close decision and predicted that Justice Kennedy would be the swing vote but, surprisingly, the majority opinion was authored by Chief Justice Roberts. Kennedy was in dissent. Commentators suggests that this reflects a statement by the Chief Justice of his vision of the Court, which is

that decisions cannot simply be the product of a vote among justices who have starkly divergent constitutional philosophies. The larger question will be whether this reflects a concern on his part about the increasing criticism of the court as becoming partisan. Of course, for health care practitioners, the case inaugurates a new era in public health care funding that will touch every segment of the health care industry, so I better finish reading it.