Affordable Care Act

by Jeremy Leaming

Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”

Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.

But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.

Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.  

But that did not happen. And some constitutional law scholars say that fact should not be ignored.

Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.

As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”

Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”

by Jeremy Leaming

Chief Justice John Roberts saved the nation’s top court from going over a cliff, barely. While a majority of the justices found the Affordable Care Act constitutional, they did so largely on Congress’s power to “lay and collect” taxes.

The Court’s majority opinion, however, found that the minimum coverage provision was not a regulation of commerce. The majority opinion also held that Congress can expand Medicaid coverage, but that it “is not free” to “penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."

ACS President Caroline Fredrickson praised the decision, saying:

The U.S. Constitution and the American people won an important victory before the nation’s high court today. The Supreme Court wisely resolved the health care case, despite all the political posturing on the right. Chief Justice Roberts’ majority opinion for the Supreme Court, upholding the Affordable Care Act’s integral ‘minimum coverage’ provision, has allowed for progress providing health care for tens of millions of Americans. It remains to be seen what the impact will be of Chief Justice Roberts’ understanding of the difference between ‘activity’ and ‘inactivity’ under the Commerce Clause.

The Obama administration argued that the ACA’s integral provision, the minimum coverage provision, which requires some Americans to purchase health care coverage starting in 2014 or pay penalty on their income tax filings, was valid under the Constitution’s commerce clause and the constitutional power of Congress to tax and spend.