What a week it was at the U.S. Supreme Court.  The Court confronted a fascinating mix of contentious law, swirling politics, challenging health policy questions, and vastly different philosophies of law and government.  During three days of riveting oral arguments, the Justices hurled rapid-fire questions and hypotheticals to explore competing visions of the limits to the federal government’s authority over our lives.  

The questions explored the constitutional and policy aspects of a complex legislative attempt to transform our health care delivery system, often veering deeply into the policy choices Congress made and would confront depending on the Court’s ruling.  In that context, a key question animating the hearings was whether health care is different from other markets.  If so, there’s a good chance the Act will be upheld.  If not, it’s likely that the Act will be overturned.    

Whether you support or oppose the Affordable Care Act (ACA) itself, it’s not surprising that the Supreme Court dealt with the interaction between constitutional law and public policy.  While the individual insurance mandate dominated the media coverage, the Medicaid expansion is equally important in understanding the case’s broader implications.  Taken together, this case will establish the limits of Congressional authority for years to come.  Though the outcome is uncertain, it’s worth stepping back and thinking about what we learned and what the implications might be.

The Issues

Let’s review the bidding.  On Monday, the Court heard arguments as to whether it had jurisdiction to decide the case on the merits.  Legal experts seem to agree that the Court will decide the case.

For many observers, the main event was on Tuesday, when the Court considered whether the act’s mandate for all individuals to purchase health insurance exceeded Congresses’ authority under the Commerce Clause.  Again, the consensus from legal scholars is that the act’s opponents gained the upper hand during the hearings.

Then on Wednesday, the Court heard two separate challenges to the act.  In the first case, the Court addressed what would happen to the act if the mandate is unconstitutional.  Could the remainder of the act still stand, or would the entire Act be overturned?  The second case asked whether the states are coerced into the ACA’s Medicaid expansion because they have no realistic choice 

The Options

After all of what happened this week, who is likely to win?  Before answering that question, let’s outline the potential options for the Court.  It may seem as though the set of options is just two—either uphold or overturn the act.  But there are lots of moving parts that could easily complicate how we view the result.

The first decision is to determine the mandate’s constitutionality.  If the Court upholds the mandate, it will not need to reach the severability question.  But if a majority votes to overturn the mandate, then the Court must decide the severability issues.

As noted in yesterday’s post, the Court heard three different theories about severability.  The Act’s opponents argued that since the crucial health policy provisions pivot around the mandate, the entire Act must fall.  In contrast, the Court-appointed attorney argued that only the mandate should be severed, leaving Congress to decide how to proceed.

The government conceded that the key insurance reforms were dependent on the mandate, but that many other unrelated provisions should remain.  The government further postulated that the Court itself should determine which provisions were intimately connected to the mandate.  If Congress doesn’t like the result, the democratic process would be the place to repair the Act.

If this isn’t confusing enough, there’s still the Medicaid expansion issue to decide.  For this issue, the Court has a binary choice—it’s either coercive and hence unconstitutional, or it’s within Congressional authority.

That leaves us with the following matrix of choices:

1.  Uphold mandate; uphold Medicaid expansion (no severability concern)

2.  Overturn mandate; overturn Medicaid expansion (basically the Act falls)

3.  Uphold mandate; overturn Medicaid expansion (no severability concern)

4.  Overturn mandate; uphold Medicaid expansion

            a.  Just sever the mandate

            b.  Sever the mandate and connected provisions

            c.  Defer to Congress to fix what’s left

The simplest and most obvious options would be total victory for either side (1 or 2 above).  But it's certainly possible to have pluralities that overturn parts but retain others (3 and 4 above), complicating how to interpret the result.  For example, a majority of the Justices could easily determine that the mandate goes too far and still support the Medicaid expansion. 

What seems likely is that four Justices, Breyer, Ginsburg, Sotomayor, and Kagan, will vote to uphold the act in its entirety.  Equally likely is that three Justices, Thomas, Scalia, and Alito, will vote to overturn the Act in tis entirety.  That leaves Chief Justice Roberts and Justice Kennedy, whose questioning was less predictable, as the key votes. 

As a preliminary guess, I think the decision will either be 5-4 to overturn the mandate and probably the entire act, or 6-3 to uphold everything.  Either way, I expect Chief Justice Roberts to write the Court’s opinion, thereby articulating his views of the limits to the federal government’s powers and shaping the way the Court will interpret the reach of Congressional authority. 

Observations

No matter what decision the Court reaches, what transpired over the past week and the consequences of the Court’s decision are certain to be momentous.  Politically, the decision will reverberate throughout the presidential campaign season and into the next session of Congress.  If the act is overturned, at least another generation will pass without the benefit of health insurance coverage.

Legally, the case has the potential to signal the end of virtually unconstrained Congressional power and shift the balance of power to state governments.  Striking down the act would represent a fundamental change in legal doctrine comparable to the aftermath of the 1936 election when the Court expanded Congressional authority under the Commerce Clause.

Perhaps ironically, the potential legal and policy implications arise more from the Medicaid expansion than from the centerpiece of the law—the individual insurance mandate.  In this sense, I share Tim Jost’s view that while the mandate has been the center of attention, the Medicaid expansion question may have even more profound political and policy consequences. 

Losing the mandate would be politically damaging to the Obama administration and would undermine the health insurance reforms at the heart of the ACA.  But because the mandate itself is a unique Congressional intervention, Congressional authority might not be unduly constrained if it were struck down.  Far more damaging would be a holding that the Medicaid expansion is coercive.  As Tim Jost notes, many federal laws impose conditions on the states and might be in jeopardy.  At a minimum, such a ruling would create real uncertainty about what Congress could demand from the states in return for federal funding.  We can anticipate endless litigation to address the limits.

One problem we saw during the hearings, as Bill Sage cogently noted, was the government’s inability to explain its own law, either to the Court or to the public.  In part, this failure (ongoing since the ACA’s enactment) explains why the Solicitor General had such difficulty deflecting the frivolous hypotheticals about burial insurance, broccoli, and cell phones.  It also helps explain why the government failed to discuss the Act’s significant population health provisions (i.e., prevention and wellness) that were not dependent on the insurance mandate.

Until we learn the final decision, all of this is speculative.  Further reflection and study of the hearings may certainly lead to different thoughts and conclusions.  For now, though, proponents of the ACA are no doubt worried, while opponents of Act are no doubt preparing to celebrate.