The Court’s agenda on health care
on Nov 14, 2011 at 12:45 pm
The Supreme Court, using its very wide option to frame its own agenda, on Monday reopened one of American history’s most fevered constitutional debates, going back to the very architecture of the Constitution and the Founding era: how to divide up power between national and state governments. The health care cases the Court promised to review involve nothing less than a choice between an ever-expanding social safety net, spreading out in federal law, and a multitude of more localized decisions by state government and the private economy. It is, perhaps, no coincidence that this choice also appears likely to be the overriding issue in the presidential and congressional election campaign that starts formally two months from now, but is already underway in some preliminaries.
The Nation, in the coming months, thus will be exposed to two arenas of constitutional combat: the quiet, disciplined and even scholarly written and oral debate within the highest court, and the noisy, quite unruly and frequently emotional jousting within the political community. There very well may be an intersection of the two — late next June, when the Court is expected to announce its judgment about the Affordable Care Act’s constitutionality.
That the Court had large constitutional issues foremost in mind was reflected in the fact that it picked carefully among the issues presented to it in five separate appeals, then selected only those that bore most directly upon governmental power — including its own authority to finally resolve this dispute between the national and state governments.
What Congress intended in this new law was a fundamental alteration of the way America pays for health care, and a marked expansion of eligibility for insurance so that one does not have to pay medical bills out of pocket, or have them covered by someone else’s charity. The core issue the Justices will decide is whether Congress had authority to do that, under three clauses in the Constitution’s Article I: the Commerce Clause, the General Welfare Clause, and the Spending Power Clause.
Congress’s power under the first two of those Clauses, perhaps supplemented by the Necessary and Proper Clause, is raised in the questions the Court agreed to decide about the health care law’s most crucial provision: a mandate that virtually every American must obtain health insurance by the year 2014, or pay a financial penalty along with their federal tax return. This so-called “minimum coverage” provision, broadly attacked in nearly 30 lawsuits as an extravagant federal intrusion into private choice, is the financial foundation of much if not all of the new law’s pragmatic workability.
If the insurance mandate and its attached penalty are nullified by the Court, the Justices would then be faced with the next most important question they granted: is the mandate so vital to the rest of the law that none of it — or some parts of it, at least — cannot survive constitutionally? That will require the Justices to examine the very difficult question of whether Congress would have wanted some of the law, if it couldn’t have the mandate. Even the government has said that, if the mandate falls, so do the requirement that insurance companies provide coverage to all comers, not turning away any who come with preexisting medical conditions, and the requirement that insurers provide the nearly universal coverage guaranteed without significantly raising insurance premiums.
But whether the Court actually will decide the constitutionality of the mandate, and the allied question of what happens if the mandate is nullified, depends upon whether the courts — including the Supreme Court — have the authority to decide those issues. That will turn on the answer the Court provides to another vital question it accepted for review: were the challengers of the mandate barred from filing their court challenge by the federal Anti-Injunction Act? There are two such laws that curb the federal courts’ power to issue injunctions; the one at issue here, dating back to 1867, is sometimes called the Tax Anti-Injunction Act. The Act declares that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” and was intended to keep the government’s revenues flowing even while a taxpayer objects to paying a certain levy. The Act thus has the effect of barring any lawsuit against a federal tax before it actually is enforced; the taxpayer must pay the tax first, then pursue a challenge.
If the Court were to find that the Act shuts the courthouse door to the constitutional challenges to the mandate and the attached penalty, that would mean that challenges would have to wait until after the mandate actually had gone into effect in 2014, and was actually enforced against a taxpayer.
On Monday, the Court’s order on the Anti-Injunction Act appeared to embrace the somewhat separate questions of whether that Act applies only to private challengers, or also to states as challengers. There is no dispute that the Act does apply to private lawsuits against federal taxes; there is, though, a dispute between the states and the federal government over whether the Act applies to states that sue. The 26 states who sued say it does not; the Justice Department said it does. There are private parties involved in the petition the Court granted from a business trade group (National Federation for Independent Business, et al., v. Sebelius, 11-393), and those parties were all before the Eleventh Circuit Court, leading to the decision the government is challenging in its own petition (Health & Human Services Department v. Florida, et al., 11-398).
Also potentially lurking in the Court’s review is the question of whether it or any court had jurisdiction to hear the states’ challenge to the mandate, because it could be argued that the states lacked “standing” to contest the insurance mandate. The government has argued that the state of Virginia did not have “standing” to sue against the mandate, but the Virginia case has not been granted. The government, though, has said the “standing” argument as it applies to the states might be reached by the Court if it agreed to hear the states’ petition. The Court may never reach the issue, though, since undoubtedly some of those involved in the business trade group case do have a right to sue against the mandate.
The 26 states’ petition raised three issues, and the Court granted two of them: one dealing with whether other parts, or all, of the entire health care law goes under if the mandate is struck down, and one dealing with the constitutionality of the new law’s broad expansion of the Medicaid law, a federal-state program that provides medical care to the poor and the disabled.
In addressing that second question, the Court will be examining the scope of Congress’s power to attach conditions when it provides federal money to the states to pay for a program like Medicaid — in other words, Congress’s authority under the Spending Clause. In their petition, the states put the question this way: “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces states into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?”
For years — indeed, since the Dole decision 24 years ago — state governments have repeatedly asked the Supreme Court to provide added constitutional protection for them from the coercive power of Congress, when it attached conditions as strings to grants of federal money. The Court usually has turned aside those claims, making it seem that it has not been ready to address so fundamental a question, because the question does go to the basic allocation of governmental authority between national and state levels. But it hardly can answer the question the 26 states asked without reaching that underlying division of power.
There is no question, of course, that the states had “standing” to challenge the expansion of the Medicaid program. The new law widens significantly the number of poor people eligible for medical care under the program, and it imposes on states an obligation to help fund the expansion — up to a maximum of 10 percent.
The states, in their appeal, also tried to raise another question about state sovereignty: the validity of the new law’s mandate that large employers provide adequate health insurance coverage to their full-time employees. The Court did not grant review of that issue, however.
The Court also did not grant review of a parallel provision in the new law, requiring large employers in the private sector to assure adequate health coverage for their full-time workers. That issue was raised in the case of Liberty University v. Geithner (11-438), but the Court did not grant that case.
As usual, the Court provided no explanation for its refusal to hear the issues about employer obligations under the new law. But it apparently did so because those did not actually implicate the division of governmental power, the focus of the issues granted.
(NOTE: It is now apparent, although this had been expected, that all nine Justices will take part in deciding these cases. The Court has scheduled 5 1/2 hours of oral argument, and Court aides have said those hearings will be on two days in the March sitting, which begins on Monday, March 19. The actual argument date will be chosen sometime in December or January.)