Health Insurance Requirement for Everyone—Constitutional?

March 21, 2012 Updated: March 21, 2012
Supreme Court Bldg
The building of the Supreme Court of the United States, as seen from the west side of 1st Street SE in Washington, D.C. Oral arguments over the federal government's Affordable Care Act (ACA) begin March 26. (350z33/Creative Commons License)

WASHINGTON—In what is expected to be one of the most significant rulings by the high court in decades, the U.S. Supreme Court will begin consideration of constitutional challenges to the Patient Protection and Affordability Care Act—commonly known as the Affordable Care Act (ACA)—March 26.

It’s been two years since President Barack Obama signed the ACA into law on March 23, 2010, and the ink was barely dry when on the same day 14 Republican state attorneys general challenged the constitutionality of the law in federal courts in Florida and Virginia.

While there were dozens of challenges filed in U.S. District Courts, only the Florida case filed in the 11th Circuit Court of Appeals has reached the Supreme Court for review.

The court has scheduled three days of hearings on March 26–28. It is expected to hand down a decision in June. More than 100 friend-of-the-court briefs (amici curiae) have been filed for this case.

The provision in the law getting the most attention is the requirement that nearly everyone must have health insurance coverage beginning in 2014, or pay a penalty. Known as the “individual mandate,” the minimum essential coverage provision of the ACA may be the best known, but not the first or only provision the court has agreed to decide.

The first issue the court must decide is whether the Anti-Injunction Act (AIA)—a federal statute that prohibits federal courts from issuing injunctions against state court proceedings—applies to the individual mandate provision of the ACA.

The mandate and its associated penalty might be construed as a form of taxation. If the court so held, the AIA prohibits suits designed to stop the law, as that would mean the suit was blocking the IRS from collecting taxes. If AIA stands, the court doesn’t have jurisdiction in the case until a monetary sanction is applied, and that can’t happen until 2015.

Consequently, if the AIA is found to apply, the court would not decide on the constitutionality of the Affordable Care Act during this election year.

If this is a tax issue, “there is a highly creditable argument that this lawsuit should not have gone forward,” said Lyle Denniston, legal journalist, who writes for the SCOTUSblog.

Denniston spoke March 15 at a forum at the National Press Club for reporters who will be covering the Supreme Court hearings on the ACA. The forum was sponsored by the Alliance for Health Reform and the Robert Wood Johnson Foundation.

Denniston opined that it isn’t a “slam dunk” win for either side.

Individual Mandate

On the second day of oral arguments, the court will take up the constitutionality of the individual mandate. Thus far, the 11th Circuit is the only federal court of appeals to find the mandate unconstitutional.

The plaintiffs argue that Congress has overstepped its constitutional powers by enacting the law. They maintain that choosing not to purchase health insurance is an “inactivity,” and the commerce clause only regulates commerce activities—not citizens who choose to opt out of interstate commerce.

“There’s no precedent for a law that forces people to engage in commerce by purchasing a private product,” said Sallie Sanford of the University of Washington School of Law, in a guest op-ed for the Jurist, explaining the plaintiff’s reasoning. If Congress can make people buy health insurance, the reasoning goes, then it could require them to purchase health food or a car to help the struggling U.S. auto industry, says a plaintiff attorney, quoted in Reuters, Feb. 16.

“Under this reasoning, the individual mandate is an expansion of Congress’s power and one that has no limits,” Sanford writes.