Health Care Reform and the Supreme Court (Affordable Care Act)

Table of Contents

1. Overview

2. Relevant Laws and Constitutional Provisions

3. The Four Major Precedents

4. Schedule of Arguments

5. The Four Major Appeals Court Decisions

6. Silberman and Sutton: Conservatives Who Upheld the Law

7. Lawyers in the Case

8. Recent Decisions of the Roberts Court

9. History: the Court’s Long Arguments

10. Resources and External Links

Overview

The Affordable Care Act is meant to extend health care coverage to tens of millions of previously uninsured Americans.  The law is more than 2,000 pages long, but most of the legal challenges to it have focused on one central element: its requirement that nearly all Americans obtain insurance coverage or face a financial penalty to be collected under the tax laws. 

That requirement, which the law calls a minimum coverage provision and which is generally referred to as the individual mandate, was thought necessary to supplement a requirement in the law that insurance companies accept all applicants without taking account of pre-existing conditions.

The court will hear four questions. Only one concerns the individual mandate, which the government argues Congress was authorized to enact the individual mandate under two provisions of Article I, Section 8 of the Constitution — its power to regulate commerce and its power to tax. The leading Supreme Court precedents support the mandate, too, the government says, because the health care law addresses a pressing national problem that is economic in nature.

But opponents of the law say that the requirement to buy a product or service is unprecedented, regulates inactivity rather than activity and would allow Congress essentially unlimited power to intrude on individual freedom.

The other three questions before the court are whether the lawsuits are premature, since no penalties have yet been imposed; whether other portions of the law or the entire act must be invalidated if the mandate is thrown out; and whether Congress exceeded its constitutional authority by expanding the eligibility and coverage thresholds that states must adopt to remain eligible to participate in Medicaid.

Of the four major appeals court decisions, two voted to uphold the individual mandate, one found it unconstitutional and one ruled that the lawsuit could not be decided until the mandate takes effect.

To read more about health-care reform, click here. To read about other cases before the Supreme Court this term, click here.

Relevant Laws and Constitutional Provisions

The Patient Protection and Affordable Care Act

Signed into law by President Obama on March 23, 2010, the law extends health care coverage to tens of millions of previously uninsured Americans.  The law is more than 2,000 pages long, but most of the legal challenges to it have focused on one central element: its requirement that nearly all Americans obtain insurance coverage or face a financial penalty to be collected under the tax laws. 

That requirement, which the law calls a minimum coverage provision and which is generally referred to as the individual mandate, was thought necessary to supplement a requirement in the law that insurance companies accept all applicants without taking account of pre-existing conditions.

The law also imposed a mandate on larger businesses to provide health insurance to their employees, and it expanded the Medicaid program, a joint federal-state effort that provides health care to poor people. 

The Anti-Injunction Act

A 19th-century law may bar the challenges to the individual mandate until the first penalties become due in 2015.  The relevant statutory text:  “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.”

Article I, Section 8

The Constitution lists the powers granted to Congress, and the central question in the Supreme Court case is whether one of those powers authorized the enactment of the health care law.  The relevant constitutional text:  “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; . . . [and]

“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;” . . . [and]

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

The Four Major Precedents

Wickard v. Filburn (1942)

Roscoe C. Filburn, an Ohio farmer, challenged a federal law that required him to pay a penalty for growing more than a set amount of wheat on his small farm though he sold none of it and only used what he grew to feed his family and livestock.  In a unanimous opinion by Justice Robert H. Jackson, the Supreme Court upheld the law, saying Congress has been authorized to enact it under the Constitution’s commerce clause.

“It is said, however, that this act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers,” Justice Jackson wrote. “It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.”

At his confirmation hearing in 2005, Chief Justice John G. Roberts Jr. hedged about whether the Wickard decision was correct.  “Nobody in recent years has been arguing whether Marbury v. Madison is good law,” he said.  “Nobody has been arguing whether Brown v. Board of Education is good law. They have been arguing whether Wickard v. Filburn is good law. Now it was reaffirmed in the Raich case. And that is a precedent of the court, just like Wickard, that I would apply, like any other precedent. I have no agenda to overturn it.  I have no agenda to revisit it.  It’s a precedent of the court. But I do think it’s a bit much to say that it’s on the same plane as a precedent as Marbury v. Madison and Brown v. Board of Education.”

United States v. Lopez (1995)

In a 5-to-4 decision, the Supreme Court ruled that Congress acted beyond its constitutional authority when it made possession of a gun within 1,000 feet of a school a federal crime.  The problem, Chief Justice Rehnquist wrote for the majority, is that what Congress sought to regulate was local and noneconomic.  “If we were to accept the government’s arguments,” he added, “we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.”

The Lopez decision was the court’s first ruling striking down a federal law on commerce-clause grounds since 1936. In dissent, Justice Stephen Breyer wrote that the decision created “legal uncertainty in an area of law that, until this case, seemed reasonably well settled.”

Three members of the majority — Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas — are still on the court.  So are two dissenters — Justices Stephen Breyer and Ruth Bader Ginsburg.

United States v. Morrison (2000)

In a 5-to-4 decision, the Supreme Court struck down a part of the Violence Against Women Act that had allowed victims of rape, domestic violence and other crimes “motivated by gender”  to sue their attackers in federal court.  Writing for the majority, Chief Justice William H. Rehnquist said that such “truly local” matters are not a valid regulation of interstate commerce.  He added that “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”

Three members of the majority — Justices Scalia, Kennedy and Thomas — are still on the court.  So are two dissenters — Justices Breyer and Ginsburg.

Gonzales v. Raich (2005)

In a 6-to-3 decision, the Supreme Court upheld a part of the Controlled Substances Act that allowed federal authorities to prosecute the possession and use of home-grown marijuana for medical purposes, even in states that permit it.  Justice John Paul Stevens, writing for the majority, said Congress was authorized by the commerce clause “to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.”

Justice Scalia voted with the majority but did not join in its reasoning. "Lopez and Morrison affirm that Congress may not regulate certain ‘purely local’ activity within the states based solely on the attenuated effect that such activity may have in the interstate market,” he wrote. “But those decisions do not declare non-economic intrastate activities to be categorically beyond the reach of the federal government.  Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation.”

Paul D. Clement, who represents the 26 states challenging the health care law, successfully defended the statute at issue in the Raich case as a lawyer for the federal government.

Four members of the majority  — Justices Scalia, Kennedy, Breyer and Ginsburg — remain on the court.  So does one dissenter — Justice Thomas.

Schedule of Arguments

March 26, 2012 — 90 minutes

Question presented: “Whether the suit brought by respondents to challenge the minimum coverage provisions of the Patient Protections and Affordable Care Act is barred by the Anti-Injunction Act?”

Robert A. Long, appointed to argue that the suit is barred: 40 minutes

Solicitor General defending the law: 30 minutes

Parties challenging the law: 20 minutes

A 19th-century law, the Anti-Injunction Act, forbids challenges to tax assessments until they are due, barring suits “for the purpose of restraining the assessment or collection of any tax.” The Supreme Court has interpreted the term “tax” very broadly for purposes of the law, and it has suggested that the act is “jurisdictional,” meaning that courts are powerless to hear suits barred by it even if both sides agree to proceed.

If the Supreme Court considers the individual mandate a tax under the Anti-Injunction Act, it may conclude that it cannot hear a challenge until April 15, 2015, when the first penalties become due. 

The United States Court of Appeals for the Fourth Circuit and a dissenting judge on the District of Columbia Circuit agreed that the act requires courts to defer consideration of the challenge to the individual mandate.

The federal government initially argued that the act applied to bar the challenges, but it has changed its mind and now asks that the suits be allowed to proceed, agreeing with its opponents on this point. The states challenging the law say the act does not apply to them, as opposed to individuals, in any event.  Because all of the parties agree that the Supreme Court may hear the case, the justices appointed a lawyer to argue that the act applies.

Among the questions the Supreme Court is likely to consider in connection with the act are whether a challenge to the mandate is the same thing as a challenge to how it is enforced, whether the penalties imposed by the health care law are taxes and whether the act is an inviolable jurisdictional command to courts. 

Congress remains free, now or later, to amend the act to allow challenges to the health care law.

March 27, 2012 — Two hours

Question presented: “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision?”

Solicitor General defending the law: 60 minutes

States challenging the law:  30 minutes

Private parties challenging the law: 30 minutes

This is the heart of the case.  The government argues that Congress was authorized to enact the individual mandate under two provisions of Article I, Section 8 of the Constitution — its power to regulate commerce and its power to tax. The leading Supreme Court precedents support the mandate, too, the government says, because the health care law addresses a pressing national problem that is economic in nature.

Opponents of the law say that the requirement to buy a product or service is unprecedented, regulates inactivity rather than activity and would allow Congress essentially unlimited power to intrude on individual freedom. They say the government cannot articulate a principle that would limit its power were the law upheld.

March 28, 2012 — Two and a half hours

First question presented: “Whether the Affordable Care Act must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’s limited and enumerated powers under the Constitution?”

Parties challenging the law: 30 minutes

Solicitor General defending the law: 30 minutes

H. Bartow Farr III, appointed to defend ruling below: 30 minutes

Should the Supreme Court strike down the individual mandate, it must decide whether some or all of the balance of the law must fall as well.  The government argued that two provisions requiring insurance companies to accept all applicants at fixed rates are intertwined with the mandate and must fall along with it. Opponents of the law say the mandate is its keystone, meaning that no part of the law can survive without it.  Here, too, the Supreme Court has appointed a lawyer to argue a position that neither party advances — that the mandate may be surgically removed if the court holds it unconstitutional.

Second question presented: “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces states into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, Medicaid?”

Parties challenging the law: 30 minutes

Solicitor General defending the law: 30 minutes

Twenty-six states argue that Congress exceeded its constitutional authority by expanding the eligibility and coverage thresholds that states must adopt to remain eligible to participate in Medicaid.

The problem, they say, is that Congress did not tie the law’s new conditions only to new federal money but, rather, made the new terms a condition of continued participation in Medicaid, threatening states with the loss of all federal Medicaid funds.

The federal government argues that such shifting conditions are routine in all sorts of federal programs and that the Medicaid program itself specified at the outset that the rules could change.

The Four Major Appeals Court Decisions

Thomas More Law Center v. Obama

United States Court of Appeals for the Sixth Circuit, in Cincinnati

June 29, 2011

Vote: 2-to-1 to uphold the law

Majority:  Judge Boyce F. Martin Jr. (appointed by President Jimmy Carter), Judge Jeffrey S. Sutton (appointed by President George W. Bush)

Dissent: Judge James L. Graham (a visiting district court judge appointed by President Ronald Reagan)

Major holding:  Congress was authorized to enact the individual mandate under its commerce powers

Other rulings:  Congress was not authorized to enact the individual mandate under its tax powers; the lawsuit was not barred by the Anti-Injunction Act

Key passages: “No one is inactive when deciding how to pay for health care, as self-insurance

and private insurance are two forms of action for addressing the same risk.  Each

requires affirmative choices; one is no less active than the other; and both affect

commerce.”   — Judge Sutton, concurring

“Not every intrusive law is an unconstitutionally intrusive law.”  — Judge Sutton, concurring

Florida v. United States Department of Health and Human Services

United States Court of Appeals for the 11th Circuit, in Atlanta

Aug. 12, 2001

Vote: 2-to-1 to strike down the individual mandate as beyond Congress’s constitutional authority

Majority:  Chief Judge Joel F. Dubina (appointed by President George H.W. Bush), Judge Frank M. Hull (appointed by President Bill Clinton)

Dissent:  Judge Stanley Marcus (appointed by President Bill Clinton)

Major holding:  Congress lacked the authority under its commerce or taxing powers to require individuals to buy insurance or pay a penalty

Other rulings:  The balance of the law could be severed from the mandate and allowed to stand; the law’s expansion of the Medicaid program was constitutional

Key passages: “What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”   — Chief Judge Dubina and Judge Hull, for the court

“This economic mandate represents a wholly novel and potentially unbounded assertion of Congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”   — Chief Judge Dubina and Judge Hull, for the court

Liberty University v. Geithner

United States Court of Appeals for the Fourth Circuit, in Richmond, Va.

Sept. 8, 2011

Vote: 2-to-1 to defer consideration of the law until 2015

Majority:  Judge Diana Gribbon Motz (appointed by President Bill Clinton), Judge James A. Wynn Jr. (appointed by President Barack Obama)

Dissent:  Judge Andre M. Davis (appointed by President Obama)

Major holding:  Courts do not have jurisdiction to hear challenges to the law until the first penalties under it become due in 2015 because of a provision of the Anti-Injunction Act

Comments on other issues:  Judge Wynn, who voted with the majority, said he would have upheld the law under Congress’s taxing power.  Judge Davis, who dissented, said he would have upheld the law under Congress’s commerce power.

Key passages: “In sum, the AIA forbids actions that seek to restrain the Secretary [of the Treasury] from exercising his statutory authority to assess exactions imposed by the Internal Revenue Code. The exaction imposed for failure to comply with the individual mandate constitutes a ‘tax’  as defined in the [Internal Revenue] Code’s assessment provisions.  For these reasons, the [Anti-Injunction Act] bars this action.”  — Judge Motz, writing for the court

“Were I to rule on the merits, for the reasons given in this opinion, I would uphold the constitutionality of the Affordable Care Act on the basis that Congress had the authority to enact the individual and employer mandates, which operate as taxes, under its taxing power.”  — Judge Wynn, concurring

Seven-Sky v. Holder

United States Court of Appeals for the District of Columbia Circuit

Nov. 8. 2011

Vote: 2-to-1 to uphold the law as a valid exercise of Congress’s power to regulate commerce

Majority:  Judge Laurence H. Silberman (appointed by President Ronald Reagan), Judge Harry T. Edwards (appointed by President Jimmy Carter)

Dissent: Judge Brett M. Kavanaugh (appointed by President George W. Bush), who would have deferred consideration of the suit until 2015 under the Anti-Injunction Act

Major holding:  Congress was authorized to enact the individual mandate under its commerce powers

Other rulings:  The lawsuit was not barred by the Anti-injunction Act

Key passages: “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins.’'  — Judge Silberman, for the court

“The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause. But the Government does stress that the health care market is factually unique; there are few other markets, it says, where participation is a virtual certainty, or where declining to buy a product disproportionately causes a national economic problem.”   — Judge Silberman, for the court

“Between now and 2015, Congress might keep the mandate as is and the President may enforce it as is. If that happens, the federal courts would resolve the resulting constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day — a day that may never come.” — Judge Kavanaugh, dissenting

Silberman and Sutton: Conservatives Who Upheld the Law

Judge Laurence H. Silberman of the District of Columbia Circuit voted to uphold the law as a valid exercise of Congress’s power to regulate commerce.  Judge Silberman held many government posts before joining the bench in 1985, including serving as ambassador to Yugoslavia from 1975 to 1977 and working with Antonin Scalia, the future Supreme Court justice, in the Justice Department in the 1970s. One of Judge Silberman’s former law clerks, Paul D. Clement, represents the 26 states challenging the law in the Supreme Court.

Judge Jeffrey S. Sutton of the Sixth Circuit voted to reject a facial challenge to the law.  Judge Sutton served as a law clerk to Justice Antonin Scalia.  In remarks in 2009 at American University Washington College of Law, Justice Scalia said Judge Sutton was “one of my former clerks whom I am the most proud of” though he lacked the Ivy League credentials of many Supreme Court law clerks.  Justice Scalia explained that Judge Sutton had been hired by Justice Lewis F. Powell Jr. after his retirement and then helped out in Justice Scalia’s chambers.  “I wouldn’t have hired Jeff Sutton,” Justice Scalia said. “For God’s sake, he went to Ohio State!  And he’s one of the very best law clerks I ever had.”  Judge Sutton, who also attended Williams College, has been mentioned as a candidate for a seat on the Supreme Court.

Lawyers in the Case

Solicitor General Donald B. Verrilli Jr. (representing federal government)

Official biography

“Solicitor General Brings Voice of Reason to Health Care Case” (USA Today)

Paul D. Clement (representing 26 states)

Firm biography

“Lawyer Opposing Health Law Is Familiar Face to Justices” (The New York Times)

Michael A. Carvin (representing private challengers)

Firm biography

Robert A. Long (appointed to argue that Anti-Injunction Act bars challenges)

Firm biography

“Supreme Court Names Two Lawyers”

H. Bartow Farr III (appointed to argue that mandate is severable)

Daily Writ profile

“Supreme Court Names Two Lawyers”

Recent Decisions of the Roberts Court

Sorrell v. IMS Health (2011)

In a 6-to-3 decision, the Supreme Court struck down a Vermont law that banned some but not all uses of prescription information collected by pharmacies. In dissent,  Justice Stephen Breyer, writing for himself and Justices Ruth Bader Ginsburg and Elena Kagan, said health care laws “regulate commerce and industry.”

Bond v. United States (2011)

Justice Anthony Kennedy, writing for a unanimous court, used sweeping language to tie federalism concerns to individual liberty.  “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power,” he wrote.

United States v. Comstock (2010)

In a 7-to-2 decision, the Supreme Court ruled that Congress has the authority to allow the continued civil commitment of sex offenders after they have completed their criminal sentences.  Writing for himself and four other members of the court, Justice Stephen Breyer said the Constitution’s “necessary and proper” clause authorized laws “rationally related to the implementation of a constitutionally enumerated power.”

Congress has the power to enact criminal laws in furtherance of its enumerated powers and to create a prison system to punish people who violate those laws, Justice Breyer wrote, though neither power is explicitly mentioned in the Constitution. “The civil commitment statute before us represents a modest addition,” he added, comparing it to medical quarantine.

The court’s three other more liberal members joined the opinion, as did, to the surprise of some, Chief Justice John G. Roberts Jr.  In separate concurrences, Justices Anthony Kennedy and Samuel Alito offered narrower rationales to uphold the law.

History: the Court’s Long Arguments

The standard length of a Supreme Court argument is one hour.  The six hours allotted to the health care arguments do not set a record, though it has been decades since the court heard arguments that long.  Here is a list of other lengthy arguments compiled by oyez.org:

Brown v. Board of Education (1952) — 8.5 hours

Brown v. Board of Education (1953) — 6.5 hours

Brown v. Board of Education (1955) — 13.25 hours

South Carolina v. Katzenbach (1966) — 7 hours

Miranda v. Arizona (1966) — 6 hours

Buckley v. Valeo (1976) — 4 hours

Federal Election Commission v. McConnell (2003) — 4 hours

Resources and External Links

Supreme Court’s Patient Protection and Affordable Care Act page

Justice Department: “Defending the Affordable Care Act”

ACA Litigation Blog

SCOTUSblog

Academic Commentary and briefs

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