The U.S. Supreme Court (the Court) is about to proffer its decision on various issues relating to the Patient Protection and Affordable Care Act (PPACA). The following Q & A outlines the issues before the Court and likely outcomes:
Q: What is the actual name of the case and who is involved?
A: NFIB v. Sebelius. The NFIB stands for the National Federation of Independent Business and is the plaintiff in the case. The NFIB is joined by a couple individual citizens and 26 states through their Attorneys General. Montana’s Attorney General elected not to join the suit. The defendants in the case include U.S. Secretary of Health and Human Services Katherine Sebelius, U.S. Secretary of the Treasurer Timothy Geithner, U.S. Secretary of Labor Hilda Solis, and their respective agencies.
Q: When is the Court likely to rule on the case?
A: It could happen at any time. The Court has to clear its docket by June 30. This case is one of the most anticipated in American history. The U.S. Constitution created the Supreme Court for cases such as this to preserve the original intent by “checks and balances” on power. This case gets to the essence of the American Experiment in limited government, states’ rights and individual liberty.
Q: There’s talk that the Court may not even be able to rule on the case. Is this true?
A: Yes. The theory is that the Anti-Injunction Act (AIA) may regard the individual mandate to purchase healthcare insurance as a tax. If so, the AIA would call into question whether the Court has the jurisdiction to rule on the case prior to the 2014 effective date for the individual mandate. Legal experts predict that the Justices will unanimously reject application of the AIA to the case.
Q: What are the substantive issues before the Court?
A: There are four issues before the Court:
1. As mentioned, whether the Anti-Injunction Act strips the Court of jurisdiction in the case.
2. Whether the new law’s requirement that individual Americans must purchase and maintain federally-approved forms of health insurance starting in 2014 exceeds Congress’ powers under the Commerce and Necessary and Proper Clauses of the U.S. Constitution.
3. Whether the new law’s mandate to the states to expand Medicaid coverage to 133 percent of the federal poverty level exceeds Congress’ authority under the Spending Clause of the U.S. Constitution and thereby violates state sovereignty under the 10th Amendment, which of course stipulates that powers not expressly granted to Congress are reserved to the states.
4. If the Court strikes down one part of the new law – e.g. the individual mandate or the Medicaid expansion – whether any remaining part of the law can be “severed” and implemented.
Q: What are the likely outcomes?
A: There are three likely outcomes:
1. The Court upholds the law. This would mean that at least five of the nine members of the Court agree that the individual mandate and Medicaid expansion do not violate the Commerce, Necessary and Proper, or Spending Clauses of the U.S. Constitution. The entire law would go into effect in 2014. Justice Anthony Kennedy will be the swing vote, in particular on the constitutionality of the individual mandate. Justice Kennedy said during oral arguments that the individual mandate “changes the relationship of the government to the individual in a fundamental way.” He also suggested that a federal requirement to buy insurance is “unprecedented” and, therefore, the government has a “heavy burden” of justification.
2. The Court strikes down particular aspects of the law but leaves the remainder intact. There are several variations of this outcome. What would be most likely under this general outcome is the Court strikes the individual mandate and leaves the rest of the law in place. The employer mandate, Medicaid expansion, exchanges, new and increase taxes, and other provisions would move forward. This outcome would leave the Act’s major expenditure provisions in place but remove the primary means of funding those expenditures, requiring further action by Congress. The Court may also choose to sever the Medicaid expansion as a “coercive” use of federal power over the states.
3. The Court rules that the law is unconstitutional and nonseverable. If the individual mandate or the Medicaid expansion is struck down, the Court could argue that the remaining provisions no longer function “in a manner consistent with the intent of Congress.” This decision would also dismantle provisions of the new healthcare law that have already implemented, which would include exchanges and co-ops set up in the states. Congress and the health care industry have indicated they would act quickly in this case to salvage the Act’s most popular and economically sustainable provisions (e.g. children remaining on parents’ policies) pending further legislative actions.