Health care: Time to sum up

Analysis

With a little more than twenty-four hours to go before the Supreme Court is scheduled to releaseits last rulings of this Term, it is very likely that the Justices and their staffs are still doing somefinal editing on the opinion — or opinions — thatwill tellthe constitutional fate of President Obama’s most important domestic policy: the massive overhaul of the way Americans get andpay forhealth insurance. The media and other pundits, and the academics, have all done their speculating on outcomes, and the blame games have started in anticipation that the ruling may turn out wrongfor this or that constituency.

Leaving aside the ill-informed guessing and the petty blaming, there is still an actual decision to be made, and it may not be very easy — at first glance onThursday– to tell just what the Court has decided.No one outside the Court knows, for example, whether there will be one opinion thatcontrols themultiple outcomes, or multiple opinions and mixed voting patterns, potentiallycomplicating the result. And, evenif the Court says it does not have the authority to decide the most controversial part of the new law, that will still leave something to be decided right now — provided, of course, that the Court does not put off the whole thing.

The Court’s choicesare many, and even canvassing what the likely options aremay miss some. The most deflating option, for all of those anxiously awaiting a definitive decision, would be for the Court to issue a simple order setting the case for re-argument at the next Term, starting October 1. If a Court already wearied after a tough nine months just doesn’t have the energy to wrap up one more big case, a delay would be a way to get out of town and start thesummer recess.

After having spent nearly six hours hearing arguments in March, and months since then working on opinion drafts, would there be anyappetite to do it all over again?Besides, it might look a bit bad to do that, since the Court rushed its review of the new law partlybecause of the overwhelming importance it recognized in the controversy. Postponement, however, isnot an option that has been taken off the table, and it at least would have the virtue of putting everything off on the constitutional issue until after this fall’s election, and reduce the Court’s political profile. There has been a lot of rash speculation that the Court’s ruling is going to be driven by an exercise of political will, perhaps even partisan preference.

If the Court does decide to decide, it has four issues before it — three of which are somewhat clustered, and one of which stands somewhat (but not entirely) alone.

The three that are definitely bunched together could be decidedwith a ruling on just one of them, or with a ruling on just two, or with a ruling on all three, separately. Those three issues all relate to the insurance mandate, or what is technically labeled the “minimum coverage” provision. By that provision, the most controversial of all, Congress declared that virtually every American (there are a few exceptions) must obtain health insurance before the year 2014, or else pay a financial penalty with their tax returns until they do get apolicy.

So the individual mandate is one of the clustered issues. The second is whetherthe Court has the authority to decide the fate of the mandate. And the third is whether, if the mandate is struck down as unconstitutional, other parts of the massive Affordable Care Act must fall with it — if any.

The authority-to-rule question turns upon the meaning of a section of the federal Anti-Injunction Act, first enacted by Congress in 1867. That section was designed to protect the federal government’s capacity to continue collecting tax revenues, to keep the national government running. It says simply that no one may go to court to challenge a tax law before it actually goes into effect, and before they have been compelled to start paying the tax-related penalty. If the AIA is found to be binding in this case, then the mandate’s fate (if not repealed by Congress in the meantime) could not be decided until after it goes into effect in 2014. The final answer might not be known until sometime in 2015, after another round of court review.

The choice before the Court on the AIA issue might appear to be an easy one: if the individual insurance mandate is a tax law, then no one is legally free to challenge it in court now, and all cases focused on that issue would have to be dismissed as beyond judicial authority at this time. Butit actually is not easy. The Court must first decide whether the individual mandate is a tax provision, based onits presence in the tax code and the fact that it has a tax-related penalty, plus the further fact that it will, indeed, raise a good deal of revenue. And, even if it is deemed a tax provision, does the federal government have a right to waive the AIA block to litigation over its validity or is this the kind of jurisdictional law that can’t be waived?

Suppose that the Court finds that the AIA does apply. That takes off the Court’s agenda a decision on the mandate itself, and, obviously, also removes any need to decide what other parts of the law fall with it. That is the three-in-one potential of the AIA question.

But suppose the Court were to rule that AIA does not apply, perhaps because the mandate is not a tax provision at all, or perhaps because it is, but it can be waived in a case like this. Then the Court would have to move on to the second of the clustered issues: is the mandate, in fact, unconstitutional? If the Court upholds it as constitutional, that makes it unnecessary to decide the third item in the cluster: what else falls with the mandate, or does none of it fall? But if the mandate is struck down, the Court has to get to that third issue (which is called the “severability” question, because it involves deciding whether the invalid part of a law can be sliced off from all, or at least part, of the rest).

If the mandate is nullified, the severability issue would be a really hard one for the Court to resolve.Would it go through the hundreds of pages of the Affordable Care Act, and pick and choose which provisions are tied to the mandate and which are not, or would it pass that issue off to a lower court or to Congress? During the hearings on severability in March, the Justices showed a distinct distaste for handling that task themselves.

This brings the summing-up to the fourth issue, in some ways separated. That issue is whether Congress exceeded its constitutional powers by enacting, as part of the new law, a very wide expansion of eligibility for the government-subsidized Medicaidprogram of providing medical care to the poor. This may be thought of as separate from the clustered three issues, because a decision not to decide the mandate and severability issues (because the AIA prevents such a ruling) would not affect the need to decide the challenge to the broader Medicaid eligibility.

But before getting further into that question, it is necessary to point out that, in fact, it may not actually be separated from the mandate and its associated cluster issues. If the Court strikes down the mandate, and then concludes that all of the rest of the law must go with it, then the Medicaid expansion, too, is dead.And, if the Court strikes down the mandate, but not all of the rest of the ACA, then it must still address whether at least the Medicaid expansion will be among the doomed provisions.

Suppose, though, that the Medicaid expansion does avoid being nullified. The Court must then decide whether to do something it has not done to a federal law in three-quarters of a century: strike down a law that Congress enacted by using its power under the Constitution’s Spending Clause. (The mandate part of the law was based upon the Commerce Clause, not the Spending Clause.) Three times since the last use of the Court’s power to nullify a federal law was used against a Spending Clause measure, the Court has said that it might be possible that the conditions Congress imposed on someone receiving federal funds were so onerous that they would amount to coercion. In other words, the conditions actually forced the recipient of money to make a choice it would not otherwise make.

In mentioning the “coercion” possibility, the Court has done so in the context of complaints by state governments that a federal spending program under which they could get funds was being enforced with such harsh conditions that the states’ choice to take part, or not, was being coerced, thus compromising their sovereignty and dignity within the Federal Union. The Court has never actually used the “coercion” theory to nullify any federal law, but it has at least agreed to consider it as it weighs the validity of the Medicaid expansion. That is the very hard fourth question that may well remain after the Court has done what it is going to do with the mandate.

The states challenging the ACA have argued that the entire Act must fall, on the theory that all of its parts are interlocking and must stand or fall together. The federal government has argued that many of the ACA’s parts have little or even nothing to do with the mandate, and that, therefore, the only parts of the law that should go down if the mandate does are the command that insurance companies may not turn aside individuals because they have pre-existing medical conditions, and the separate provision that limitsinsurers in varying their premium rates because of the age or medical health of those who seek coverage. But there is also an argument in the case that, whatever the fate of the mandate, the rest of the ACA should remain intact and working.

All of these issues, summarized here, are the puzzles that the Justices have been trying to solve among themselves since the arguments ended on March 28. On Thursday morning, soon after 10 a.m., they could announce their conclusions.

Tomorrow: The blog will provide a “reader’s guide” on how to work one’s way through the health care ruling — or rulings.