Broccoli, Coercion, and Severability: Three days of SCOTUS arguments on the Affordable Care Act

Unless they've deviated from their normal procedure, the Supreme Court justices have now decided on how they'll rule on the Affordable Care Act - but, as the Washington Post's Robert Barnes points out, we'll have to wait until late June to hear their verdict. In the meantime, this is a good opportunity to recap the key issues in the case and highlight some of the more insightful commentary about them.

The first issue on which the Court heard arguments was whether it could rule on this case to begin with, since it involves a tax on people who don't have health insurance coverage (or a hardship exemption) but the tax won't be collected until 2015. Experts seem unanimous in their expectation that the Court will go ahead and make a ruling.

The Individual Mandate
The second issue is the one the general public seems most interested in: whether the individual mandate is constitutional. (Remember, the individual mandate is necessary if we're going to rely on private health insurers and insist that they cover everyone at comparable premium prices, regardless of pre-existing conditions - one of the ACA's most popular provisions.) The Constitution gives Congress the power to make laws that are necessary and proper for regulating interstate commerce, and the law's supporters point out that healthcare is a national issue that crosses state lines and accounts for one-sixth of the US economy. The plaintiffs argue that Congress can't regulate economic inactivity, in this case the decision to not buy health insurance products.

At the Health Affairs Blog, Sara Rosenbaum (who teaches at George Washington University's School of Public Health, where I work) summarizes the two competing visions of reality that the two sides offer: the ACA's supporters describe it as regulation of the healthcare marketplace, which poses unique challenges; its detractors characterize it as creating a new health insurance market and forcing people into it.

The law's opponents often raise a slippery-slope argument: if Congress is mandating the purchase of health insurance today, what will it force us to buy next year - broccoli? Some of the Justices are asking for a "limiting principle" - an explanation of how Congress's power is limited to regulating things like health insurance and doesn't extend to vegetable purchasing. Jack Balkin at Balkinization offers three: The Moral Hazard/Adverse Selection Principle, The Interstate Externalities Principle, and The "It's a tax, stupid!" Principle.

In an interview with Wonkblog's Ezra Klein, Akhil Reed Amar pushes back against the idea that we'd ever see Congress trying to require everyone to buy broccoli:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That's the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won't. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won't do because you'd vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I'd say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it's designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

In paragraph 28 of McCulloch, Chief Justice John Marshall writes:

A constitution [is] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. [It is wrong] to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

And in paragraph 55 he says that the main security against an abusive legislature "is found in the structure of government itself. In imposing a tax" -- or, I would add, a mandate -- "the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation." And against bad mandates and bad broccoli laws.

Of course, the Court will refer to past cases when deciding this, and Politico's Josh Gerstein offers a helpful summary of other key Supreme Court cases addressing interstate commerce: Wickard v. Filburn, in which the Court decided the federal government could regulate wheat crops grown and consumed at home; US v. Lopez and US v. Morrison, in which the Court concluded that guns in school and violence against women, respectively, were insufficiently connected to national commerce to warrant federal regulation; and Gonzales v. Raich, in which the Court decided that home-grown marijuana is part of the national economy. (The New York Times' Adam Liptak devoted a whole article to Wickard v. Filburn.)

Medicaid expansion
The Affordable Care Act requires that beginning in 2014, all states must expand Medicaid eligibility to legal residents with incomes up to 133% of the federal poverty level. (In 2010, one-third of states didn't even cover parents up to 100% FPL, and only six states and the District of Columbia offered Medicaid coverage to low-income adults without dependent children.) While the federal government will pick up the majority of the costs for this expansion, this is still a significant change for states to make. Amy Howe at SCOTUSblog summarizes plaintiffs' argument:

But the question is one that is near and dear to supporters of states' rights: when Congress gives the states money with strings attached, can Congress eventually reach the point at which it put so many strings on the money that it violates the Constitution, because Congress is using the strings to accomplish things that it couldn't require the states to do without the money? In two cases nearly fifty years apart, the Court has suggested that these kinds of conditions can amount to unconstitutional "coercion" on the states, but it has never actually had a case in which it found Congress violated the Constitution on that ground. Conservatives hope that this will be that case: Medicaid is such a huge budget item and so important, the states argue, that they simply can't refuse to follow the new eligibility requirements and risk losing all of the money - and Congress knows it. So it isn't a real "choice."

Howe reports that Justice Breyer's reading of the statute didn't find that failing to comply with the Medicaid expansion would necessarily mean the loss of all Medicaid money; he suggested that it would be up to the Secretary of Health and Human Services to decide whether noncompliance would result in losing some of all federal Medicaid funding, and the Secretary's decision could be challenged in court.

In another Health Affairs post, Sara Rosenbaum observes that "no Justice appeared to be able to offer a workable application of the coercion doctrine in a Medicaid context." She also highlights "the ultimate and most eloquent question of the day," from Justice Sotomayor: Is the fact that Congress sees a large problem and commits major resources to its solution to be understood as inherently coercive?

Severability
It seems entirely possible that a majority of Justices will find the individual mandate unconstitutional. If that happens, can the mandate provision be severed from the rest, and the remained of the law remain intact? Removing the mandate provision alone would be problematic; the requirement for insurers to offer coverage to all applicants and not charge higher premiums to those with pre-existing conditions will lead to spiraling insurance costs if everyone can just wait until they're sick or injured to get coverage. The plaintiffs - and, judging by their comments, some of the justices - would like to see the entire law scrapped. The administration would like to see some of the many provisions not directly related to private insurance coverage remain intact even if the mandate is ruled unconstitutional. (For instance, several provisions the law address Medicare, including: closing the hole in prescription-drug coverage, establishing Accountable Care Organizations, and creating an Innovation Center to test and evaluate payment structures that can encourage more cost-effective care.)

Justice Ginsburg likened the decision to a choice between a wrecking operation or a salvage job, and opined that "the more conservative approach would be salvage rather than throwing out everything." Wonkblog's Ezra Klein summarizes the options open to the Court on this issue and the implications of each. Slate's Dahlia Lithwick offers her read on the justices' attitudes on the severability issue:

None of the justices appears delighted at the prospect of striking down the law in its entirety, with Breyer waving around the portions of the statute that arguably don't have anything to do with the individual mandate, and Paul Clement offering a kind of hip-bone-connected-to-the-thigh-bone assessment of how the many parts of the law are too interconnected to be separated. But the justices seem no more delighted at the prospect of hacking out only the two major parts of the law, as the Obama administration suggests. Nor do there seem to be many takers for the prospect of letting the whole thing stand, save the mandate. There are even murmurs that any remedy might be so embarrassing that the law could survive after all.

The New Republic's Jonathan Cohn puts this case in context with other momentous decisions and suggests the Court may be reluctant to strike down the entire Affordable Care Act on a 5-4 decision:

Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism.

... Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities--in these cases, state legislators who'd passed laws enforcing segregation and prohibiting abortion. The justices' authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.

Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four--a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.

As a supporter of the Affordable Care Act (because it's the best we can do to address our country's shameful uninsurance rate given the current conditions in Congress), I'm more nervous now than I was before the oral arguments. The law affects millions of people directly and all of us indirectly. One of the people who sees the direct impacts of healthcare law is Kathie McClure, a 57-year-old Atlanta lawyer who spent 92 hours waiting in line outside the Supreme Court because she wanted to see the oral arguments. She shared her thoughts with the Washington Post's Sarah Kliff:

I wanted to see the Supreme Court's health care arguments with my own two eyes because my kids are sick with incurable illnesses, Type 1 diabetes and epilepsy, and are uninsurable in the private insurance market. ...I left wondering whether the conservative justices understood that the long arm of interstate commerce reaches into my children's lives every day keeping them uninsurable.

In another three months, we'll learn whether the Affordable Care Act will remain intact or whether people who are uninsurable in the private market will have to keep worrying about being able to afford healthcare.