Health Care Reform at the Supreme Court, Day Three
By Sergio Muñoz, Senior Policy Analyst, Health Policy Project, NCLR
Before day two and day three of the Affordable Care Act (ACA) hearings, the vast majority of legal experts predicted that the Supreme Court would follow decades of clear precedent, uphold health care reform, and accordingly protect similar safety-net programs enacted during the New Deal and the Great Society. As oral arguments closed and the case was submitted, it’s no longer just the fate of health care reform that has people concerned. Medicaid as it has existed since 1964—along with a myriad of other antidiscrimination and public interest laws ranging from the Environmental Protection Act to Title IX—is now in serious peril.
The morning of day three was dedicated to the not-so-clear doctrine of “severability.” That is, if a court determines part of a duly enacted law is unconstitutional, can the rest of the statute stand? Prior to day two’s arguments on the individual mandate, yesterday’s discussion of severability was thought to be a sideshow to the main events. However, after it became clear that the fate of the individual mandate likely depends on the swing vote of moderate Justice Kennedy, discussion about what would happen to the rest of the ACA if the requirement is struck down took on a chilling—and unpredicted— significance.
Although NCLR had hoped that politics would be kept out of the court and that incontrovertible case law would hold sway, almost immediately those justices aligned with the conservative wing showed no qualms about chucking out the entire ACA. Justice Scalia, for example, had no problem accepting the plaintiff states’ assertion that without the mandate, the law would be reduced to a disposable hollow shell. Progressive justices on the court were appalled at this disregard of congressional intent for health care reform, and the blatant inaccuracy of a description of a law that contains vastly more health reforms than those solely aimed at the insurance market. Rather, at least four of the justices were much more receptive to the U.S. government’s argument that if the individual mandate falls, then only those provisions closely connected should fall as well. As Justice Ginsburg put it, the severability doctrine requires a “salvage approach,” not that of a “wrecking operation.”
Sensing dire prospects for the ACA, progressive justices continued to bolster and even make the U.S. government’s legal arguments during the afternoon session on the constitutionality of the Medicaid expansion. Of particular importance, these justices repeatedly pointed out if the expansion is rejected, grave consequences will befall other federal programs that benefit the most vulnerable Americans. For example, Justice Sotomayor highlighted the counterintuitive logic of the challengers’ “coercion” claim, through which states have argued that they are forced into voluntarily participating in Medicaid. To the disbelief of Sotomayor and her colleagues, the states admitted that yes, under their completely unprecedented theory, the bigger the problem faced by our country’s most at-risk populations, the less we are able to help. The conservative justices were seemingly nonplussed by such consequences. They were equally unconcerned with Justice Kagan’s observation of the logical conclusion to which the states’ slippery argument will lead: the declaration that all of Medicaid, not just the ACA expansion, is unconstitutional. This result would literally upend the modern American society that was forged in response to the ravages of the Great Depression and which attempts to ensure that there is a certain level of misfortunate that is unacceptable.
Justices will cast their first private votes on the fate of the ACA within a week, most likely. Then will come three months of crafting opinions for a decision, probably to be issued at the end of the term in late June. On almost all of the questions presented to them over the past three days, perhaps with the exception of the threshold Anti-Injunction Act issue, the court seemed bitterly split along ideological lines despite the intense third day effort of the progressive justices to explain how revolutionary a decision against the ACA would be. A strikingly close decision on the question of the constitutionality of the individual mandate, the Medicaid expansion, and on what would remain of the ACA if parts are tossed out, now seems like the most probable outcome.
In his closing remarks, the U.S. Solicitor General made an impassioned plea to the court to remember that at the end of the day, after all of this arcane legal and policy doublespeak, health care reform has always bedeviled our nation. The ACA may well be the foreseeable last best chance to ensure that all of us, not just the most fortunate, have access to affordable quality health care—a problem that Latinos, the most uninsured group in the country, know all too well. One hopes the justices were listening. For as the Solicitor General correctly pointed out, without the ability and right to maintain one’s health unencumbered, the “blessings of liberty” are just words.