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The Supreme Court and the Affordable Care Act, Part 2



by Walter J. Kendall III, Citizen Action/Illinois Board Member and Professor of Law, John Marshall Law School

Most of the attention given to the constitutional debate about the Affordable Care Act has been focused on the "individual mandate." People either must have or get health insurance or they will have to pay into the federal treasury an amount of money roughly comparable to the cost of minimum health insurance coverage. Opponents of the law argue that if the law is constitutional it would mean the federal government could make you buy broccoli.

The logic of the law is that if a person is not covered by a health insurance policy the covered pool of people is more expensive for private insurance companies to cover. That makes it significantly more difficult to keep costs down. So the law's requirement is a necessary and proper exercise of government power. As long ago as 1942 the Supreme Court ruled that  "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.' " (Wickard v. Filburn). In other words, even if the person's decision to not have or get health insurance is not commerce, since it has a substantial effect on this large and important area of commerce Congress can regulate the individual's decision. This expansive understanding of the authority of Congress to regulate commerce actually links back to Chief Justice John Marshall's opinion in Gibbons v. Ogden in 1824. That is why the apparent hostility of the Justices during the arguments, if it reflects their view of the constitution, was so surprising to many observers.

In addition to the questions about the individual mandate there were also challenges to the way Congress sought to expand Medicaid to cover more people. During the oral argument about specifically the Medicaid expansion, one of the Justices asked counsel for the parties attacking the law whether if their argument were accepted it would put the Social Security system in constitutional jeopardy. The response was "Yes."

Since 1936 the law has been settled and clear that "the power of Congress to authorize the expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." That means that even if Congress can not order a State to do something, it can give grants of money to induce the States to do whatever it is Congress wants to get done; as long as the money is for the general welfare, a proper federal interest in the matter, and no express prohibition against the government doing any such thing. And the option presented to the State must be clear; "if you accept the money such and such follows, and if you do not."

It is this power of Congress to spend federal dollars that was approved by the Supreme Court as the basis for finding Social Security, Medicaid, and many other federal grant programs constitutional. The opponents of the ACA are arguing that because if a State refuses to accept the additional dollars being made available under the ACA it will lose all its Medicaid dollars, the law is "coercive" and therefore unconstitutional.

One further thought and then a prediction. The further thought assumes that Chief Justice Roberts cares about how history will see his stewardship of the Court. There have been famous and infamous  Chief Justices. John Marshall is universally thought of positively; Roger Taney the author of the Dred Scott decision obviously equally negatively. Interestingly Earl Warren is considered either, depending on whom one asks.  I doubt that Chief Justice Roberts wants to be the Chief who in effect leads the Court to overrule the New Deal, and leave the national government no more power than it had under Harding and Coolidge to meet our current and future problems.

Thus, if I may indulge myself in a bit of constitutional dreaming, might it come to pass that CJ Roberts writes a majority opinion for 6 Justices, Justices Breyer, Ginsberg, Kagen, Kennedy, Sotomayor, and himself, finding the individual mandate constitutional, but striking down the provision of the Medicaid expansion that would take away all Medicaid dollars from the States that chose not to participate. The opinion would strongly affirm the constitutionality of Social Security and other laws, but establish a limit of the ability of Congress to use money in as heavy handed a manner as it did in the ACA. Under the Constitution the States have an important independent role to play. That is why they must be given a choice as to how they operate within their own borders, so to speak. The opinion would conclude that facing the loss of all Medicaid money even for programs unrelated to the ACA is not a choice, it is coercion.

Such a ruling would be a win for Congress' power to regulate effectively the modern complex interconnected economy; but a defeat for Congress' power to "bribe" the States into doing it Congress' way. This might be viewed as an exercise of judicial restraint and prudence comparable Chief Justice Marshall's ruling in Marbury v. Madison. Chief Justice Marshall ruled that the Court had the last word on the meaning of the Constitution against the views of President Jefferson, while at the same time ruling that the Court had no authority to order the President to give Marbury the job Jefferson had just refused to give him.

Comes June we will no longer have to wonder, hope, or worry. We'll know. The Court does have and should have the last word, unless and until the people say otherwise!