ACS Audio: Assessing the Health Care Litigation Landscape in the Wake of 11th Circuit Decision

by Nicole Flatow

Although the recent appeals court decision striking down the individual coverage provision of the Affordable Care Act was a blow to health insurance reform, it’s important to recognize the victory in this case: that some 950 pages of the law were upheld, Washington & Lee law professor Timothy Jost said during an American Constitution Society phone briefing about Affordable Care Act litigation.

“I think that the bottom line news from this case is that the federal government and the states should proceed with implementing the Affordable Care Act,” Jost said, noting that this case was an appeal from a lower court decision striking down the entire law, and that the plaintiffs had specifically challenged a Medicaid expansion provision that the U.S. Court of Appeals for the Eleventh Circuit upheld.

“It’s clear after this decision that there’s no decision out there holding the entire law to be unconstitutional and I’m not even sure that the Supreme Court is going to take a close look at that,” he said. “I rather doubt that they will.”

The appeals court decision does all but assure that the Supreme Court will consider the constitutionality of the law’s so-called individual coverage provision, which requires that most individuals buy health insurance or pay a penalty. (The court came to the opposite conclusion of the U.S. Court of Appeals for the Sixth Circuit, creating a split between two federal appeals courts.)

Both Jost and University of Chicago law professor Geoffrey R. Stone, who also spoke during the briefing, predicted that the Supreme Court would uphold the decision, possibly with a majority of as many as eight justices. Based on precedent on the Constitution’s commerce clause, Stone reasoned, deciding this case is easy.

“[I]f you gave this case, for example, to a group of law students who didn’t have any particular views on the merits but just as a legal exercise, and you gave them the existing precedents, I think they would have no difficulty upholding the legislation,” said Stone, who is chair of the American Constitution Society’s Board of Directors.

But Stone conceded that the outcome is not easy to predict, with five justices on the court who have exhibited great skepticism toward federal power.

“Up until now, those five justices have taken a pretty aggressive approach to questioning existing precedent,” Stone said, citing Citizens United as the most prominent example of this. “So to the extent they really do believe there’s a need to cut back federal power, they’ve demonstrated a willingness to overrule precedents and so I don’t think one could count on them not doing that in this situation.”

During a 30-minute conversation, the two scholars also discussed the weakness of the Eleventh Circuit’s slippery slope reasoning, why the argument that the health care law regulates “inactivity” is unpersuasive, and emerging evidence that striking down the individual coverage provision would cause both individuals’ health care costs and federal government costs to skyrocket.

Listen to an audio recording of the phone briefing here, and visit the Affordable Care Act Resource Page for other resources about the health care litigation.