LE­GAL:

De­ter­min­ing ACA’S le­gal­ity not a typ­i­cal case

Modern Healthcare - - NEWS - Joe Carl­son

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.

AP PHOTO

Chief Jus­tice John Roberts shakes hands with Obama. In a Kaiser poll, 51% said po­lit­i­cal lean­ings will in­flu­ence how the jus­tices rule.

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