important week for SCOTUS, health law, administration

Nina Totenberg and others reported in NPR’s health blog Sunday that the Supreme Court is very soon to hand down its decision in the controversial case of the Affordable Care Act. Indeed, it appears the decision has been scheduled to be given on Thursday. At issue are four distinct questions. The first was whether the suit, brought by 20 states against the federal government, can even be decided now by the Court since an 1867 law regarding taxes might be prohibitive. It appears to be the case that the justices feel that they can. The second, and most interesting to me and it seems most other people, is whether the so-called “individual mandate” provision to purchase health insurance or be assessed a fine is allowed by Congress’s broad powers to regulate interstate commerce. The third concerns whether a vast expansion of Medicaid mandated by the law is impermissably coercive on the states, who bear the responsibility of that program’s administration. Finally, the fourth is the resulting question of severability: if any part of the law should be found to be unconstitutional, how much of the rest of the law can be permitted to stand?

I wrote much earlier this year, among other things, about how this decision will be both interesting and significant. At first I thought I would wait until the ruling to talk about the case in any detail, but instead I’ll now attempt to predict how the Court will rule on this question and analyze a few other significant rulings handed down this week.

The first federal court ruling on the health care suit was handed down by Judge Roger Vinson of the northern Florida circuit court. His lengthy opinion is worth reading in full as it convinced me that the mandate is indeed unconstitutional and could not be severed from the larger law without rendering it unacceptably unworkable. Congress clearly has authority to regulate commerce and to levy taxes. However, neither of those powers seem to justify the mandate: to compel citizens to enter into a kind of commerce that they otherwise might not and frequently do not seems to make a mockery of the word ‘regulate;’ and as phrased, the mandate isn’t a tax but a fee since it is levied only in response to the dereliction — as the administration would have it — of prudence in the purchasing of health care insurance. Furthermore, the administration’s own arguments pegged the mandate as the lynch pin of the whole law. While that seems both foolish and inaccurate, Judge Vinson agreed that the heart of the law without the mandate would indeed become either stupidly expensive or entirely ineffective at its stated aim of making health care affordable and found it was therefore unserverable.

I haven’t read subsequent opinions, but I have read reporting about them. The arguments of several circuit courts boil down to the holding that the mandate is allowable since it is reasonable to suppose that everyone will engage in the health care market at some point in their lives, and given that the current model for this market is probabilistic (lifetime insurance in the absence of affordable per-incident costs) Congress has both a compelling interest and the authority under the commerce clause to regulate that industry in any way that is necessary and proper. One interesting opinion, rejecting plaintiffs suing over the law for a number of grievances, offered this choice bit of rhetoric:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality…

To put it less analytically, and less charitably, those who choose–and Plaintiffs have made such a deliberate choice– not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep. In short, those who choose not to purchase health insurance will ultimately get a “free ride” on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.

I don’t think this argument makes sense. For one thing, it lowers the bar on what Congress can regulate. What other probabilistic markets might arise? But it also begs an important question with the “free ride” flourish: at what threshold of participation can we say that “everyone will participate eventually?” The reasonableness of emergency room laws is taken as foundational in order to justify a dubious law that exists in part to mitigate the unsurprising financial harm such laws create.

Note also that the proposed mandate differs in kind from the existing and similar Medicare plan, which is federally taxed. Congress would be well within their rights to levy a “public health” tax from which they could grant exemptions and loopholes, but Congress obviously didn’t do this because the political expediency of raising a new tax is precisely nil. In retrospect, the House Democrats should have considered it anyway since they were soundly routed in 2010 even without such an invasive public option. But the fact that they didn’t do that is suspect, and while the resulting bill is arguably well-intentioned despite some pretty nasty political wrangling and could well solve a demonstrable problem, it doesn’t change the fact that Congress probably lacks the authority to enact it.

I think this will be the prevailing view of the Supreme Court. With a recent tilt toward ideology, it strikes me as inconceivable that Roberts, Alito, Thomas, or Scalia would find the law can stand. Kennedy usually sides with the conservatives on deep constitutional questions like this one. By the same token, Ginsburg, Breyer, Sottomayor, and definitely Kagan are very likely to see the mandate as little more than a ‘pure semantics’ for a tax. I say definitely for Kagan, since there was much talk of her potential recusal from this case since she had championed the law in email while she was Obama’s solicitor general. Of course, there was talk at the same time that Thomas should recuse himself since his wife was well known for her “vocal antagonization” among Tea Party circles of the Affordable Care Act. Both justices heard the case and will rule on it, probably opening a door for the losing side to cry foul if the case ends with a 5-4 split decision.

I think we’ll end up with just that: another ideological split. This question is nuanced and it will be easy for even subconsciously held desired outcomes to influence a reading of the law. The Court is polarized: yesterday it refused to reconsider the controversial Citizens United holding in a 5-4 split over a century-old Montana law limiting campaign finance, itself a controversial choice. Breyer wrote the dissenting opinion with some strong language:

I disagree with the Court’s holding for the reasons expressed in Justice Stevens’ dissent in [Citizens United]. As Justice Stevens explained, “technically in­dependent expenditures can be corrupting in much the same way as direct contributions.” … Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Su­preme Court’s finding, made on the record before it…

And the Court also ruled Monday on the controversial immigration law in Arizona. Most of its provisions, like a requirement for individuals to have immigration papers on their person at all times on pain of arrest and a criminalization of illegals applying for jobs, were struck down in a 5-3 decision (with Roberts and Kennedy joining the liberals) that mostly preserved federal authority to determine immigration policy. But the Court was unanimous in upholding what Arizona Governor Jan Brewer called the “heart” of the law, namely the “show me your papers” right of law enforcement to make a good-faith effort to determine citizenship status when they have a reasonable belief that an individual is an illegal alien. The Mayor of Los Angeles has said “there is no way to implement this provision without discriminating, without profiling, without violating the constitutional rights of the people involved”, and Obama’s pushback on the law is likely to win him Latino votes in November.

So this week we’ve received some important if controversial guidance from the Supreme Court, and we await the imminent release of one of its most significant decisions in recent memory — one which a pair of prominent Senators have asked the Court to televise. Stay tuned.

UPDATE (Wednesday): In recapitulating my position to a friend I realized I left out a few details and was somewhat misleading. I think the conservative majority opinion will be written by Chief Justice Roberts and will strike down the mandate, which will cause them to lance the exchanges as being too contingent on the mandate to function as expected. I think they will allow much of the rest of the law to stand, including the Medicare coercion question and other incidental provisions like the requirement that insurers allow planholders’ children to remain covered until they turn 26. Also, I predict a lot of complaining about this decision ahead of the election; look at how bothered some people are with Scalia because of his dissent in the Arizona immigration law.