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
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.
-- Eva Marie Stahl, Policy Analyst