High Court to Try Health Law This Week

The stakes will be high this week as the Supreme Court devotes three days of hearings to challenges to the Patient Protection and Affordable Care Act.  Not since the civil rights cases of the 1960s has the high court set aside so much time for oral arguments on a single topic.  The issues fall into three categories: jurisdiction, mandates and severability.  These issues will be argued successively by attorneys attacking and defending the Health Law, and when the court rules it will both determine the future of the Act passed two years ago this month and enter the middle of the election battle being contested this year.  Any decisions the justices reach will be rendered at the end of the court's session, probably in late June. 

The first issue to be discussed concerns jurisdiction, or more precisely, timing.  Since the parts of the law the plaintiffs object to haven't even taken effect yet, the court wants to hear why it is required to act now, since no one has yet been "injured" by the legislation.  An 1867 law, the Anti-Injunction Act, prevents court action on new taxes until they have begun operating.  Most court watchers do not expect this concern to derail the proceedings.

Next the justices will hear the meat of the oppenents' case, their objection to mandates.  The Act says almost all individuals and larger employers will have to buy health insurance or suffer financial penalties.  (Individuals already covered under employer-purchased plans will not need to make any changes.) Subsidies are to be made available for people with incomes below $80,000 on a sliding scale.  There are also mandates on states; they will have to cover everyone under medicaid who makes 133% or less of the poverty level, or suffer cuts in federal aid.  The Medicaid arguments will be heard Wednesday.  The Administration will contend that the Act adheres to the Constitution's grant of congressional power to "regulate commerce among the several states" and to do what is "necessary and proper" to "promote the general welfare."  For instance, the uninsured used $116 billion in health care in 2008, a cost that insurers pass on to the insured through higher premiums.  They will say the new law rights this inequity and serves a clear public interest.  Opponents will contend the mandate is a power not expressly granted by the Constitution and thus void.   If the court goes against the Medicaid mandate it will be overturning a principle it established earlier, when it allowed the federal government to threaten to withhold highway funds from states if they had legal drinking ages under 21.

Finally, the severability issue will determine whether the whole law must survive or fall as an indivisible whole, i.e. whether certain issues can be "severed" from the law and separately thrown out while keeping the rest in force.  If the court rules against the insurance mandate, what about the other requirements?  Will that strike down the provisions requiring insurers to cover children on their parents' plan until their 26th birthday, the bans on excluding people from coverage due to pre-existing conditions and of dropping them from coverage if they get sick, or the percentages insurers must actually spend on health care?  Those are the kinds of things that will be decided on the severability question. 

All in all, the case and eventual ruling figures to be one of the most momentous in decades.  Health care for 50 million people and the scope of congressional authority are clearly at stake.  The principles allowed or curtailed will shape policy and people's lives for many years to come.