Why Justice Kennedy Will Vote to Uphold the Health Care Reform Law

November 14, 2011
Guest Post

By Fazal Khan, a law professor at the University of Georgia specializing in health law. Prof. Khan has both law and medical degrees.

Today the U.S. Supreme Court confirmed what most of us expected, announcing that it will review the constitutionality of the Affordable Care Act. As the justices begin to deliberate, they would be wise to look to a masterful amicus brief by prominent constitutional law scholar Kathleen Sullivan as a meaningful template for Supreme Court action.

Sullivan’s brief, in which she asks the Court to grant cert in the 11th Circuit case that the justices today accepted, addresses those arguments most likely to concern Justice Anthony Kennedy, the swing vote on the Court, and provides ample support from Justice Kennedy’s record to suggest he will and should vote to uphold the law. Before detailing the arguments in Sullivan’s brief, filed on behalf of the California Endowment ("a private foundation committed to the expansion of affordable, quality health care for all Californians"), I summarize below how we reached this point.


President Obama signed the Patient Protection and Affordable Care Act (“ACA”) into law on March 23, 2010.  Immediately opponents of ACA, primarily private conservative groups and Republican state officials, challenged its constitutionality in federal courts. In particular, the “individual mandate” provision, requiring certain individuals to purchase insurance or else face a tax penalty, has stood out as the bĂȘte noire of ACA critics. Last Spring, I recall that most constitutional and health law scholars (myself included) thought that these cases had little chance of success. To quote a famous politician whose name escapes me, “oops.” However, to have thought otherwise would require ignoring 70 years of Supreme Court decisions affirming Congress’s broad tax and spending power and authority to regulate behavior that affects the national economy.  

Returning to HHS v. Florida, out of all of the ACA litigation, this case represents the most serious legal andpolitical challenge to federal health care reform, as plaintiffs are 26 states, headed by the Attorney General of Florida. In August, a three-judge panel of the 11th Circuit ruled 2-1 that the individual mandate exceeds the federal government’s authority, but that the rest of the law could stand without the mandate.  The Obama Administration could have appealed this decision to a full en banc panel of the 11th Circuit.  Instead, the Obama Administration decided to cut the Gordian knot and filed a cert petition to the Supreme Court.  Judicial efficiency and removing uncertainty in the healthcare industry justify this move, but surely next year’s looming election also influenced the swiftness of this cert petition. The Supreme Court granted cert on Monday, November 14, 2011 meaning that it will likely hear oral arguments next spring and issue a ruling during the summer.  

Sullivan’s Brief:  Courting Kennedy, Defusing Scalia

On the constitutionality of the individual mandate, my prediction is that the Court will likely be split 5-4, with Kennedy again casting the deciding vote. A challenge for defenders of ACA has been opponents’ argument that if the federal government can regulate “inactivity” by forcing individuals to purchase private health insurance, then governmental powers are virtually unlimited and (horror of all horrors) President Obama could force individuals to buy broccoli. Superficially, the broccoli argument appears frivolous, but packed in there is a serious question that will likely resonate with Kennedy. Namely, if the Court rules that the individual mandate is constitutional, is there a limiting principle that can define when the government has gone too far?

Sullivan’s brief deftly employs text from Kennedy’s concurring opinions in Comstock and Lopez to frame an answer to the question above. In Comstock, Kennedy suggests that Congress exceeds its commerce clause power when it regulates behavior that has no “tangible link to commerce.” Kennedy further explains that “rational basis” for concluding that an individual’s activity in the aggregate affects interstate commerce is based on a “demonstrated link in fact, based on empirical demonstration.” As Sullivan states, in the aggregate, uninsured status causes individuals to consume “the most expensiveand least efficient form of health care” in emergency rooms, and that uncompensated care costs billions every year leading to higher healthcare costs nationwide. (Id.) Thus, the individual mandate clearly meets the “tangible link” standard outlined by Kennedy in Comstock. However, the 11th Circuit “held that Congress may regulate the uninsured only when they ‘actually enter the stream of commerce and consume health care.’” (Sullivan Brief at 8)  In other words, the 11th Circuit appears to be persuaded by the “activity/inactivity” distinction most notably championed by Randy Barnett of Georgetown. Tellingly, Sullivan’s brief does not directly address the “activity/inactivity” issue. In a recent D.C. Circuit decision upholding ACA, Reagan appointee Judge Laurence Silberman dismissed the activity distinction as irrelevant so perhaps Sullivan is signaling that there is no substance to this argument and consequently it is not worth addressing.

Interestingly, only one other Justice’s concurring opinions are specifically cited in this brief— Scalia’s. Sullivan quotes Scalia’s opinion from Raich for the proposition that the Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation.” In other words, Congress clearly has the authority to regulate the insurance industry, but some of the most important regulations (e.g., guaranteed issue, no exclusions for pre-existing conditions) would be rendered futile without the individual mandate. For instance, with a guaranteed issue rule and no mandate, a healthy person could game the system by not buying insurance until she got sick. This argument is fairly straightforward, but underlying this section of the brief is the recognition that Scalia has significant influence over Kennedy. In a sense, Sullivan is trying to inoculate Kennedy from the anti-mandate Scalia by injecting previous Scalia opinions into the debate that would argue in favor of upholding ACA generally and the individual mandate in particular. 

I predicted — correctly it turns out — that the Supreme Court would grant cert in HHS v. Florida. Now that cert has been granted, I think there will be a 5-4 decision in favor of upholding ACA and the individual mandate as constitutional.  However, I think the most compelling reason for this outcome is not a constitutional argument, but a pragmatic one: Now  that insurers and providers have already started adjusting to this law and with continually rising healthcare costs and access problems, does the Court really want to block Congress’s ability to address these issues in a comprehensive and effective manner?