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SCOTUS for law students: Health-care litigation

As law students around the country settle in for the new semester, there is no hotter legal question than the fate of the health care law the Patient Protection and Affordable Care Act, also known as the Affordable Care Act or ACA. Understanding the legal arguments and what the Supreme Court might do with the ACA cuts across the law school curriculum, drawing on constitutional law, civil procedure, federal courts, and even tax.

In this new SCOTUSblog feature, we will consider cases and hot topics at the Court with a special focus on how they relate to what law students are learning in their classes.

There is no better place to start than the battle over the constitutionality of the ACA. Congress passed the law in March 2010, and President Obama signed it. Among hundreds of pages of provisions was the controversial individual mandate that requires uninsured persons to buy health insurance by 2014 or to pay an annual penalty. The goal was to force millions of uninsured Americans to buy health insurance if they can afford it so that everyone in the country would have at least basic health coverage.

Opponents of the law immediately filed numerous lawsuits, arguing that in passing the law Congress exceeded its authority under the Constitution and encroached on the power of the states. Three separate federal courts of appeals have now ruled on the law with mixed results, and a fourth case is still in progress. With this track record, the next questions are not only whether and when the Court will hear the case, but also what issues the Justices will decide.

So far, the Supreme Court has before it one of the cases, Thomas More Law Center v. Obama, a petition for certiorari from the June 29 decision by the Sixth Circuit upholding the law. Whether the Court will hear that petition or wait for others, and when that might happen, is a guessing game. More on that later, as well as on some important preliminary hurdles in the cases.

At the heart of the challenges to the ACA is the question of whether Congress had the power to pass the individual mandate. Grappling with this important constitutional law question requires an understanding of some basic structure of American democracy and some background in important Supreme Court decisions.

First, the structure. It is critical to the health care debate to remember that the Constitution created a national government of specific and not unlimited powers. Although it has often been difficult to think of Congress as possessing limited powers, the Constitution outlines the basic powers in seventeen paragraphs of Article I, Section 8, followed in the eighteenth paragraph by the power to make laws that are “necessary and proper” to carry out the other powers. The power on which Congress has relied the most often, to pass everything from arson statutes to restrictions on partial birth abortion, is the power to regulate interstate commerce. This is the power used for the individual mandate in the health care law, too.

For the individual mandate to be constitutional, then, Congress must be regulating interstate commerce. But critics of the law’s constitutionality argue that in forcing people to obtain health insurance, Congress was not regulating existing commerce:  instead, it was improperly regulating their inactivity and pushing people into commerce.

That’s where the stories of protagonists in two important Supreme Court rulings, Roscoe Filburn and Angel Raich, may be useful. In 1941, Filburn – an Ohio farmer  – grew more wheat than his allocation under a federal law designed to regulate agricultural markets to help the country recover from the Depression. Although the extra wheat was intended for his own use, to feed his livestock and bake bread, Filburn was assessed a federal penalty for going over his quota. When his lawsuit reached the Court in 1942, the Justices held in Wickard v. Filburn that Congress could regulate even an entirely local, intrastate activity like farming because it had a substantial effect on interstate commerce:  Filburn was not buying the extra wheat in the market, and the cumulative result of other farmers doing the same thing would have an enormous impact on interstate commerce, the Court said.

This was an extremely broad reading of the meaning of interstate commerce and gave a broad scope to Congress’s power to regulate. For more than fifty years after the decision, the Court upheld every exercise of the commerce power that came before it.

In 1995, in United States v. Lopez, and five years later in United States v. Morrison, however, the Court grew frustrated with the seemingly unbridled scope of congressional power and suggested that Congress needed to show a connection between laws and interstate commerce, and in particular to show the economic activity involved when regulating the substantial effect of intrastate activity. This potentially dramatic change of direction threatened to rein in Congress for the first time in more than a half-century.

But in 2005, the Court once again took a seemingly broad approach to congressional power. A California woman named Angel Raich was growing marijuana for her own medical use, consistent with state law, when the federal government cracked down on medicinal use of the drug. In her lawsuit, Gonzales v. Raich, the Court held that Congress needed broad authority to regulate the national market for legal and illegal drugs, even when the marijuana was grown for local use.

Those are the basic tools for understanding the health care debate. Critics argue that the commerce power cannot extend to regulate inactivity or compel individuals to act against their will. Defenders of the law say that regardless of whether one buys insurance or instead waits to pay medical expenses as they arise, everyone is a participant in interstate commerce in the enormous, national health care market. The Court ultimately will decide whether the individual mandate fits within the scope of congressional power.

One thing that is important to keep in mind is that even if the Justices may want to review an issue, they must do so in cases that are in the right procedural posture. First, the Court must have jurisdiction. In one challenge to the ACA, for example, the Fourth Circuit never reached the merits of the case.  Instead, earlier this month, it ruled that the penalty in the individual mandate operates like a tax, and another federal law – the Anti- Injunction Act – prohibits courts from blocking a tax before it has been collected. Because the penalty does not kick in until 2014, the Fourth Circuit reasoned, it couldn’t consider the challenges to the ACA yet. Thus, the Court will have to determine whether it has jurisdiction.

Second, unless the challengers to the law can establish that they have standing to sue, their lawsuit cannot proceed; among other factors, they must show that they have suffered a legal injury, and that the injury is timely or ripe. This might seem to be difficult, as the mandate does not take effect until 2014. The courts of appeals that considered this question have concluded easily that individuals do have standing because they are already changing their spending habits and making decisions about health insurance in anticipation of the virtually certain impact of the law on them; there is no reason to make them wait for 2014.

In addition to individual challengers, many states have sued over the health care law. But whether the states may sue before the law takes effect remains unclear. The Fourth Circuit concluded that the Commonwealth of Virginia – the only plaintiff in one of the suits before it – does not have standing. But the Eleventh Circuit, which struck down the law in August, bypassed the question of state standing because there were also individual parties in the case who did have standing. This standing of both individuals and states may merit the Court’s attention.

Finally, it is worth remembering that the rulings by the courts of appeals have considered the validity of the law on its face; this means the courts are asking whether there is any possible valid application of the law, rather than whether the law violates the Constitution as applied to specific individuals. The Court under Chief Justice John Roberts has raised skepticism about facial challenges because it is rare that a court will conclude that a law can never be valid.

There are numerous variables about when the Court will actually take up the issue.  The government is currently scheduled to file its response to the petition in the Sixth Circuit case this week.  The Justices could decide to grant review in that case, but they could also simply do nothing in that case until petitions from other cases can make their way to the Court.  How long all of that takes will determine whether the case is argued and decided this Term – that is, argued next spring and decided by late June 2012 – or whether the inevitable battle will be delayed to the next Term with the decision coming sometime in spring 2013 – after the presidential election.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Health-care litigation, SCOTUSblog (Sep. 25, 2011, 9:25 PM),