Health care’s big constitutional test is at hand

Editor’s Note: This post, initially published on Nov. 10, 2011, has been updated to reflect the Supreme Court’s announcement that it will review President Obama’s health reform law. The National Constitution Center recently published a pamphlet in its Constitutional Spotlight series on this topic. “Checkup: Health Care Reform and the Constitution” features dueling essays by legal scholars David Cole and Elizabeth Price Foley. Download a free copy.

America’s constitutional debate over health care entered a new and critical stage this morning. The Supreme Court moved rapidly to grant most of the major constitutional issues over the new federal health care law, and planned a lengthy set of hearings — 5 1/2 hours — for sometime in the final two weeks of March.   A ruling is likely to emerge in late June.  The issues the Justices accepted will probe deeply into the Constitution’s division of powers between national and state governments.

Monday’s announcement follows a a closed-door conference last Thursday, where the Justices reviewed five separate appeals.

U.S. Supreme Court

Together, that stack of legal papers raised all of the vital constitutional questions that the nation has been debating for most of the past two years about a law that may cost nearly $1 trillion and, if it worked as planned, could assure medical care for perhaps 95 percent of the people.

President Obama, using 22 separate pens, signed what is now called “the Affordable Care Act” into law on March 23 of last year after it had passed the House and Senate on straight party-line votes – not a single Republican had voted “Aye” in either chamber, not one Democrat defected.

After its origin in those partisan settings, the Act has remained at the center of a sometimes angry political debate. If the Justices do take on the task of deciding its constitutionality, the final decision could come next June, in the very midst of the presidential and election campaigns. The Justices, though, will do their best to ignore the politics of the controversy; theirs is strictly a judicial task.

Within minutes after the President made the last small stroke with the 22nd pen, the law’s constitutionality had been challenged in federal court in Richmond by the state of Virginia. Within weeks, there would be nearly 30 lawsuits across the nation, challenging the measure – all moving on fast judicial tracks, first before District Court judges, then before three-judge Courts of Appeals panels.

Not surprisingly, the results at those levels would be conflicting: some courts upheld the challenged provisions, others struck down some of them – and one District judge in Florida found that the entire law was unconstitutional. And those conflicts, by themselves, could be enough to persuade the Supreme Court to accept the cases for review.

There is, though, much else that may help assure that the Justices will, indeed, choose to take on the final constitutional chore themselves. The Court almost always agrees to hear a case when a federal law has been ruled unconstitutional in lower courts. In addition, the federal government itself is pursuing one of the appeals, and it usually has a better-than-average chance of getting a hearing. The cases have been prepared by some of the most experienced members of the Supreme Court Bar, assuring that all of the issues will be presented with persuasive force. Finally, virtually every one, on all sides of the cases, has told the Justices of the urgency of bringing the constitutional debate to a close as early as possible.

If the Justices complete their initial examination at today’s conference, they will choose whether to hear any, some or all of the five petitions; if review is granted, they will also pick out the issues they plan to decide, and they will decide how much time to schedule for a public hearing – very likely late in March.

The Justices will do their best to ignore the politics of the controversy; theirs is strictly a judicial task.

The most important issue posed by the cases is the constitutionality of the health care insurance mandate, a command by Congress that virtually every American (there are a few exceptions) must obtain health insurance by the year 2014 or pay a penalty along with their federal tax return due by April 15, 2015.

Another major question is, if the mandate is nullified as beyond Congress’s constitutional powers, will its demise bring down the entire law, on the theory that the insurance mandate is necessary to make it work. Even the federal government argues that, if the mandate falls, there would be no way to pay for mandatory, nearly universal health care coverage, or to enable insurance companies to provide coverage even for people who have “pre-existing medical conditions,” or to keep insurance premiums in check.

There also are questions over the constitutionality of new mandates on health care coverage that employers must provide, and a broad expansion of the federal Medicaid program that provides care for the poor and the disabled.

Finally, there is a “sleeper issue” in these cases: if the Court concludes that the insurance mandate and its financial penalty are tax provisions, does a federal law that bars any court challenge to a tax before it goes into effect mean that none of the challengers should have been allowed to sue over the mandate?

If the Court were to rule that way, the constitutional cases would end, and the fate of the health care law would be handed back to the political world, to the President and the Congress elected a year from now. Indeed, even if the Court were to uphold the law as is, the government’s political branches would still have the option to try to repeal it.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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