Post by Kate N.

Arguably the most anticipated Supreme Court ruling in history is due to come out this week. Health care overhaul, Obamacare, call it what you may, but the Affordable Health Care Act (AHCA) will soon learn its fate after the justices deliver their decision.

I spoke with David Manwaring about the health care law and the case being deliberated in the Supreme Court. Professor Manwaring, who teaches American Legal System, helped shed some light on the complicated issues surrounding the law and expressed his opinions on what the end result will be in this landmark case.

What’s at stake in the Health Care case before the Supreme Court?

Political stake is obvious. The AHCA is the signature legislative achievement of Barack Obama’s young presidency.

The public stake in the outcome is also large. AHCA brought some 30 million previously uninsured people into the health insurance system, largely by (a) prohibiting insurers from discriminating (by exclusion or overpricing) against applicants with pre-existing medical conditions, and (b) expanding Medicaid to cover non-elderly, non-ill people with family income at or below 133% of the Federal poverty level

• ACHA is a truly comprehensive reform package, including:
• A variety of devices (subsidies, “exchanges,” etc.) to make health care insurance (voluntary or mandated) more affordable
• A ban on lifetime benefit caps
• Simplification and clarification of application forms and other enrollment paperwork
• Improving prescription drug coverage (including elimination of the “donut hole” coverage gap)
• Numerous provisions promoting preventive health care
• Improving recruitment and training of health care workers

These are generally non-controversial, even popular, but could become lost in a negative ruling.

Is the suit challenging the law premature?

Three provisions lie at the heart of the 950-page document called the Affordable Health Care Act:

1. A requirement, called the individual mandate, that every uninsured person (with various exceptions) purchase health insurance meeting certain standards, or pay an escalating annual penalty for not doing so.
2. Prohibition of insurers to deny coverage to persons with pre-existing medical conditions (called “guaranteed issue”).
3. Prohibition of insurers to charge higher premiums to patients with pre-existing conditions (called “community rating”).

The individual mandate is the primary target of the lawsuits. Nobody is challenging the constitutionality of the other two provisions, but there is general agreement between the two sides that if the mandate goes down, “guaranteed issue” and “community rating” should go with it. The Obama Administration argues that, despite the general presumption of separability, there are powerful economic reasons why these provisions should stand or fall together. There is no reason, on the other hand, why the many innocuous, non-controversial programs loosely collected under the AHCA should suffer the same fate.

The question was raised whether suits against the mandate were barred (at least until 2014) by the 1867 Anti-Injunction Act, which blocks a judicial challenge of a tax until that tax is actually collected. This led to a painful debate about whether the penalty is a “tax” within the meaning of the statute—a question which the Obama Administration answered one way, the other way, and both ways at once. The issue was left unanswered because both sides agreed that the case should stay in court.

In my opinion, the state government plaintiffs do not belong in Court at all on the issue of the individual mandate, having no tangible interest in the resolution of the questions surrounding the penalty. Massachusetts v. Mellon (1923) held that (a) states will not be heard to raise abstract philosophical objections to federal laws not otherwise touching their interests, and (b) states have no legitimate business “shielding” their citizens from the operation of federal laws.

Lingering in the background is the stark fact that whatever the Supreme Court does with the AHCA it is likely to be the last thing done. Given the toxic partisanship dominating both Houses, there is next to no hope of anything constructive being done with the AHCA the second time around.

How do you think the justices will come down? Any surprises?

With reluctance, I am betting on a 5-4 decision (yes, one of those!) invalidating at least the individual mandate and the Medicaid expansion. I see the first as a near certainty, the second as more likely than not. I expect that “guaranteed issue” and “community rating” will go as well; nobody wants to leave them at large without the restraining influence of the mandate. The picture is less clear regarding the many, many other parts of the law. I would not be surprised to see a manifestation of “moderation,” embodied in a 6-3 ruling that those other parts are “separable.”

Let’s return to the main act. For the individual mandate to survive, someone must cross over from the conservative side. There are three possibilities:

• Anthony Kennedy. Because, well, he is Anthony Kennedy, the consummate swing vote. His Lopez concurrence tried to limit that case to areas of traditional concern like criminal law enforcement. Butsince the departure of Sandra Day O’Connor, he has been voting much more reliably with the conservative four.
• Antonin Scalia. His concurring opinion in Raich is tailor-made to support the AHCA. But he is Antonin Scalia. A thought: Would he have voted the same way in Raich if she had been growing vegetables?
• John Roberts. As Chief Justice, he has to be concerned with the Court’s reputation (and his legacy) amid deteriorating opinions of the Court. He may be the most accessible of the conservative justices at this time. I do not see him voting to uphold the individual mandate. He is the most likely to try to soften the Court’s “5-4 and out” image by voting to save the many other provisions. If he does that, so will Kennedy, hence my 6-3 guess.

On the individual mandate, I will be surprised if any of the conservatives defect from the team. In oral arguments on this topic they conveyed a strong impression of group solidarity.

We’ll have another blog post from David Manwaring in the upcoming weeks with more information on the Supreme Court, so stay tuned.