Will the U.S. Supreme Court decide the constitutionality of the PPACA and will this be decided by the November presidential election? This is shaping up to be a landmark Supreme Court decision that will impact the provision of health care and health insurance in Amnerica for decades to come whether its upheld, struck down, or parts are maintained while others are not.
The timing of the Supreme Court's review of the case could be decided Nov. 10 when the Supreme Court justices gather to consider their schedule in a pivate conference when Federal appeals court rulings from Atlanta, Cincinnati and Richmond are on the agenda.
If the justices agree then to hear any or all of those cases, the decision would be announced that day or when the court meets in public session the following Monday. Such a timetable, according to Insurance News Net would allow the court to hear arguments over the health care law in late March and would give the justices three months to craft their opinions.
The central issue is whether the requirement for individuals to buy insurance or pay a penalty is constitutional.
U.S. Chamber of Commerce
The U.S. Chamber of Commerce, which has been a fierce opponent of President Barack Obama's health care overhaul, is taking a more subtle approach in urging the Supreme Court to take up review of the law.
The chamber said in a legal brief filed Tuesday that it takes no position on the constitutionality of the contested provision at the heart of the law, the requirement that individuals be mandated to purchase health insurance or pay a penalty starting in 2014.
The key element according to the Chamber is that the Supreme Court court should NOT decide the matter in the same way the federal appeals court in Atlanta did, which was to strike down that requirement and leave the rest of the law standing. The business group said health insurers and insurance buyers would face "dire consequences" if the mandate is invalidated by itself. This is because of the costs imposed on the industry that need to be offset by the expansion of the market bringing in millions of previously uninsured individuals.
That pivot point banks on the Supreme's decision on whether Congress has authority pursuant to the Commerce Clause in the Constitution to impose the mandate. The Supreme Court historically has given Congress an extensive amount of power to regulate economic activity under this clause. At the heart of the matter is the question of whether the “in-action” of buying health insurance impacts interstate commerce. The previous case law cited in the legal opinions thus far is open to a wide-array of judicial interpretations and why this outcome is anything but certain.
To date, federal appellate courts have been split on this constitutional question, according to Bernard DiFiore of Benefit Mall. DiFiore says, a Sixth Circuit appellate panel held that the mandate was constitutional, the 11th Circuit appellate panel found it unconstitutional, and the Fourth Circuit appellate panel dismissed challenges on procedural grounds.
Competing Precedents
Another issue according to DiFiore is that there are competing precedents that the Supreme Court will ade through. Generally he says, "the U.S. Supreme Court has ruled that individuals who don't engage in economic activity, but have an effect on interstate commerce, can be regulated pursuant to the Commerce Clause". DiFiore cites Wickard v. Filburn (1942), in which the Court held that Congress had the authority to regulate a farmer who grew wheat for his family’s consumption and didn't put wheat into the stream of commerce at all. The court determined that the farmer would have purchased wheat if he hadn't grown his own wheat. As such, his actions had an impact on the interstate wheat market. In Gonzales v. Raich (2005), the Supreme Court determined that Congress could prohibit individuals from growing medicinal marijuana for their own personal use because their actions had an impact on the interstate and illicit market for marijuana.
On the other hand, the U.S. Supreme Court ruled in The United States v. Lopez (1995) that the Constitution does not give the federal government unlimited powers. Although the Supreme Court’s New Deal precedents expanded Congress’s commerce power, the Lopez Court recognized that “this power is subject to outer limits.”
So there are precedents that apply each way, but which will hold the ultimate precedence?
So how does DiFiore assess these. He argues, "While it may seem the Wickard and Gonzales cases are similar in support of mandating the individual purchase of health insurance, opponents of the PPACA mandate maintain that there are two major distinctions between these cases and the PPACA individual mandate. The wheat farmer and the marijuana growers engage in current activity: growing wheat or marijuana. By enforcing individuals to purchase health insurance because ‘the lack of individual health insurance’ can cause a potential future impact on interstate commerce, Congress is attempting to regulate not only inactivity, but future inactivity."
My Assessment of DiFiore's Analysis
The inactivity of purchasing health insurance has a huge influence on the cost of health insurance for those of us who do purchase health insurance. The uninsured lack of coverage is a huge drain on resources and the resulting costs to the insured population has bee documented widely. Here's an estimate of the cost of uncompensated care by the Kasier family Founddation in 2008: $57 billion. This is table napkin math but for 100 million insureds in the U.S. in the employer market that costs each individual $570 each year in health insurance premiums. For a family of four that's over $2100 or about 15% of their current health insurance annual premium.
So my point with the above analysis is that the justices may feel that the "inactivity" of buying health insurance can actually be deemed "activity" because of the costs involved and the impact of that inactivity on others. In a nutshell, not purchasing health insurance by millions of individuals has huge consequences on those of us who do purchase it. Its possible one of the remaining four conservative justices could agree with that as the Appellate court in the 6th circuit ruled in June.
Challenges to Predicting the Outcome
It’s hard to predict how the nine members of the U.S. Supreme Court will vote on these issues. Will they feel pressure to hold to "party lines" on this issue. Of course they are impartial and do not vote as Democrats or Republicans, but their individual ideologies are well known. Or will they see this from a historical perspective and be influenced by the momentous implications of their individual decision? They are human and their iopinions will be parsed, dissected, and analyzed for generations.
Having said all that, this case is more difficult than most to predict the outcome. Conventional wisdom, DiFiore says, holds that the Supreme Court is split between four liberal justices and four conservative justices with Justice Kennedy holding the deciding vote. However, there are several tangential issues, he says, that can impact their votes.
The four Democrat-appointed justices would appear to be solid votes to uphold the individual mandate. So, if they hold true they need just one more to uphold the PPACA. Justice Thomas appears to be a clear vote in favor of declaring the individual mandate unconstitutional. That's 4-1 in favor.
The difficulty lies in the fact that each of the remaining four conservative justices has supported opinions on the Commerce Clause cited by both the proponents and opponents of the individual mandate. So the liberal side needs just one of those individual four justices. Early on, the conventional wisdom was that the Supreme Court would uphold the individual mandate. At this point, it is difficult to pick a winner.
The issue of the lack of a Severability Clause is difficult to assess. A severability clause is part of the general boilerplate of legislation. It provides that if any clause in an act is declared unconstitutional, the rest of the legislation remains in force. Except in this case many argue successfully that without the individual mandate, the PPACA is a house of cards that crumbles quickly upon itself. The House version of PPACA had a severability clause. The Senate version that was ultimately passed into law has no severability clause. In the last minute haste to pass PPACA, a severability clause was inadvertently dropped in the drafting process. In the Florida appellate ruling, Justice Vinson held that the individual mandate provision is unconstitutional and the lack of a severability clause in PPACA rendered the entire PPACA unconstitutional. While the three-judge panel of the 11th Circuit Appellate Court concurred with Judge Vinson’s opinion on the unconstitutionality of the individual mandate, it rejected his opinion on the unconstitutionality of the severability clause, DiFiore says.
Timing
There is considerable speculation about the timing of these cases. The Supreme Court may decide to hear these cases next year and issue an opinion by its usual June break. This would make the decision a central part of the 2012 election. The Court could defer its decisions until it resumes work in October and not issue an opinion until after the November 2012 elections.
