Determining ACA’S legality not a typical case
Affordable Care Act finally get its day at the Supreme Court
The Supreme Court is preparing to hear its most significant case in a generation at a time when most Americans say personal politics will play just as large a role as legal principles in determining the legality of the Patient Protection and Affordable Care Act.
The high court has scheduled six hours of oral arguments on the reform law starting March 26—the most time for any single case since the 1960s, experts say. A decision is expected by the end of June.
The arguments come almost exactly two years after President Barack Obama signed his signature domestic policy into law, spurring changes such as the widespread development of accountable care organizations, groundwork laid for state insurance exchanges and the broadening of eligibility rules for citizens with private insurance.
Partisans in Washington are already prepping an array of attention-grabbing public events to coincide with the case. But with a presidential election campaign moving toward full swing, national polling has found a wide gap between the expectations of legal scholars and the American public on how the court will rule on the reform law.
The American Bar Association published a survey last week of constitutional experts that found most expect the Supreme Court will uphold by a 6-3 majority the reform law’s most controversial provision: the individual mandate for virtually all Americans to buy health insurance. “The safe money seems to be on the individual mandate making it through the summer,” wrote Catherine Hawke, editor of the ABA’S Preview of United States Supreme Court Cases.
Meanwhile, a Kaiser Family Foundation public opinion poll published March 14 found that 53% of Americans believe the Supreme Court will find the individual mandate unconstitutional. More than half,
51%, said the justices’ own political leanings will play a major role in how they rule—nearly as many as the 54% who said analysis of the law will guide the decision.
“I think the opponents have been very, very good at publicizing their message, and the proponents of the law have not been as successful,” said Adam Winkler, a constitutional law professor at UCLA School of Law. “The challengers have done a good job articulating their arguments against the law, and have made what originally seemed like a far-fetched argument seem more realistic and plausible.”
Families USA, an advocacy group that favors reform, is partnering with several labor unions and other organizations that support the law to hold daily events, a 1,000person vigil and hundreds of radio interviews in a building adjacent to the Supreme Court. But Families USA Executive Director Ron Pollack said the events were not motivated by any perception of how well the Obama administration has promoted the law to the public.
“Given that such a substantial portion of the American public is still confused about what is in the reform act and how it will affect their lives, we want to take advantage of this opportunity to explain what is in the act,” Pollack said. “We think this is an important teaching moment. The administration is going to do its end of it by having the solicitor general argue in court to defend the law.”
The Kaiser poll found that the public tended to be most aware of the law’s provisions that they oppose, such as the insurance mandate, and least aware of things they favored, such as tax credits to small businesses for employee insurance. And 14% of survey respondents believe the Supreme Court has already overturned the reform law.
Reuters reported that opponents of the law also are planning public rallies, though representatives for the Republican National Committee could not elaborate on the “fully coordinated effort” targeting families and business owners cited in the story.
Edward White Iii—the American Center for Law and Justice attorney who argued on behalf of reform-law opponents before the U.S. Court of Appeals for the District of Columbia in the case Seven-sky v. Holder— said the case has garnered such widespread controversy because it’s not about just health insurance.
Rather, he said, observers on both sides of the debate see that the law’s requirement that individuals acquire health insurance or face a tax penalty greatly expands Congress’ power under the Constitution’s Commerce Clause—a power that could have been used in the past to force Americans to buy war bonds during World War II, for example, or to purchase American-made cars during auto manufacturing crises. “Just the fact that they have never used this power is strong evidence to show they don’t have this power,” White said.
Winkler, however, said the Supreme Court has in the past rejected many such arguments by critics who assert that laws should be struck down because they represent “unprecedented” action by Congress. Such arguments often fail, he said, because the court has recognized that modern society sometimes needs to expand beyond 18th-century legal frameworks. The arguments scheduled are: March 26: 90 minutes on whether opponents are barred from challenging the mandate, in effect beginning in 2014, until a penalty is imposed.
March 27: two hours on the constitutionality of the mandate.
March 28: 90 minutes on whether the rest of the law could stand if the mandate is found illegal, and one hour on whether the law unconstitutionally coerces states to expand Medicaid programs in order to reach its coverage goals.
Chief Justice John Roberts shakes hands with Obama. In a Kaiser poll, 51% said political leanings will influence how the justices rule.