Timothy Jost: 'It was clear that this was a political case'
I am delighted that the supreme court has upheld the insurance reforms of the Affordable Care Act in their entirety. From the beginning, it was clear that this was a political case. It was brought by Republican attorneys general and governors as a challenge to the signature achievement of a Democratic Congress. From the beginning, most legal scholars gave the lawsuit little chance of success. The majority of federal appellate courts, including distinguished conservative judges, rejected the challenges.
The supreme court has – to its great credit – demonstrated that it remains committed to the rule of law. A majority of the court rejected the argument that the mandate regulates commerce, but it did find a way to uphold the law as a tax. The remainder of the insurance reforms, including reforms that have already expanded coverage to 3 million young adults and reforms that will expand coverage to millions more in 2014, remain in place.
It is troubling that the court used this occasion to limit the ability of the federal government to condition participation in the Medicaid program on compliance with program requirements. The ramifications of this decision for many co-operative federal-state programs are far-reaching and will be litigated for years.
But in the end, this is a great day for millions of Americans who will gain access to healthcare because of this decision. It is time for the states and the federal government to move forward expeditiously with implementing the ACA. Thousands of lives literally depend on it.
Timothy S Jost is the Robert L Willett Family Professor of law at the Washington and Lee University school of law
Martha Davis: 'If states opt out of Medicaid expansion, it will be the uninsured working poor who suffer'
The complete meaning of Thursday's supreme court opinion will only become clear as future cases construe it. But as a legal matter, this is a significant win for the president and the congressional majority that enacted the Affordable Care Act.
While the court rejects the commerce clause theory for the individual mandate, Justice Roberts' opinion is written narrowly. He makes every effort to draw a bright line between activity and inactivity, saying that only the former can be reached by Congress. But every first year law student knows that there is no such fixed line. The rationale here leaves Congress with ample room to legislate under the commerce clause in the future – though, perhaps, they will be precluded from mandating the purchase of broccoli.
At the same time, the constitution's taxation clause is given a broad reading. There may be political impediments to using the clause for broad social programs – and we're already hearing rumblings among Republicans about this – but the legal authority under the taxation clause is more open to Congress today than it was yesterday.
The Medicaid expansion ruling is perhaps the most significant in terms of working real legal change. The constitution's spending clause has served as a rather open-ended vehicle for the federal government to entice state partnerships through a combination of carrots and sticks. That vehicle remains, but the court's ruling that the Congress cannot change the ground rules for the existing Medicaid program will force the federal government to focus more explicitly on big carrots to get the states to participate.
In other words, the federal government will have to come up with a deal that the states can't refuse, it's so good. Unfortunately, in the absence of a meaningful penalty for failing to participate, some states may still refuse the federal funding and opt out. If they do, it will be the uninsured working poor, with incomes above the current Medicaid cutoff, who will suffer. That's a group that is disproportionately African-American and Latino.
The attention to the ACA and the supreme court ruling has, for some months, eclipsed news about the innovative work taking place at the state level. Now that the ACA has been upheld, it's worth remembering that many throughout the US felt that it did not go far enough, and instead support a single-payer system that would better conform to the idea of healthcare as a human right and a public good.
The state of Vermont has moved ahead to legislate such a system for that state. With the ACA's future is assured, at least for the time being, Vermont will be seeking permission from the federal government to go ahead and implement their own universal healthcare program. That may serve as a model for other state innovations, and even a more progressive federal program, in the future.
Martha F Davis teaches constitutional law at Northeastern University school of law
Sara Rosenbaum: 'A landmark in the history of US constitutional law'
A thunderous roar arose across the nation as the US supreme court, in a 5-4 opinion with Chief Justice Roberts providing the deciding vote, upheld the constitutionality of the Affordable Care Act. Its decision represents a landmark in the history of US constitutional law, as well as a fundamental reaffirmation of a near century-long effort to arrive at a national health insurance policy for the American population. Of course, whether the ACA survives in the political aftermath of the 2012 national elections remains to be seen.
Writing for the majority, the chief justice held that the minimum coverage requirement (known as the mandate) represents a constitutional exercise of Congress' taxing powers. Individuals who can afford to purchase coverage (as the act defines affordability) but who do not do so could lawfully be subject to a somewhat higher tax than those who maintain health insurance coverage. In basing its decision on Congress's taxing powers, the court explicitly rejected the two constitutional grounds on which the act was thought to rest: the "commerce clause" and the "necessary and proper clause".
In rejecting the former argument, the court accepted the basic premise of the act's opponents – namely, that rather than regulating the conduct of individuals already in market (in this case, for healthcare), the act instead sought to push people into the market for insurance, thereby overstepping the boundaries of its constitutional limits of power. Nor could the law be upheld as a valid exercise of Congress's power to make laws that are "necessary and proper", because that clause's force derives from other congressional powers and does not represent an independent grant of power.
Yet, the fact that the act's central coverage requirement failed two constitutional tests ultimately did not matter, since it survived as a tax. But the long-term impact of limiting the reach of congressional powers under those two clauses remains to be seen.
The other major – and far more fractured – holding had to do with Medicaid, the program that insures the poor. In an unexpected move, a majority of the justices upheld the expansion as a constitutional exercise of Congress's spending clause powers, while at the same time, a majority barred Congress from punishing states that refuse to adopt the new expansions by withholding all funding for the remainder of their Medicaid programs.
States had argued that the act's Medicaid expansion should be understood as a new program, separate and apart from the far larger Medicaid program itself. The court essentially accepted this argument. The practical effect of this decision is to make expansion of coverage for the poorest adults a state option – one that, one would expect, most states will nonetheless implement rapidly.
Sara Rosenbaum is the Harold and Jane Hirsh Professor and founding chair of the department of health policy at the George Washington University
Thomas Keck: 'A great day for the public's faith in our independent courts'
Chief Justice John Roberts has claimed since his 2005 nomination that one of his priorities in office would be to maintain and renew the public's faith in the supreme court as a venue of non-partisan legal decision-making. Since that time, his critics have often complained that he seemed to care more about vindicating a partisan constitutional vision.
The legal conflict over the Affordable Care Act (ACA) put these competing priorities to a test, and Roberts' professed faith in the court's reputation won out. In short, Roberts' claim that judges are like umpires holds some truth, after all.
In the era of Bush v Gore (2000) and Citizens United v FEC (2010), this may be surprising to some. And indeed, the willingness of four Republican-appointed justices to invalidate the 1,700-page ACA in its entirety despite the alarming public policy consequences of such a decision suggests that our courts can and do sometimes succumb to the extraordinary pressures of partisan polarization that have afflicted the rest of our political system.
Despite heavy partisan pressure on judges from both sides, though, the federal courts remain a site of potential cross-partisan consensus-building in this heavily polarized era of American politics. Republican legislators in Congress unanimously opposed the individual mandate, even though many of them had advocated it in the past. (The same goes for Republican presidential candidates.) But some Republican judges remain willing to hold that, whether or not they think the mandate is a wise policy, enacting it is well within Congress's legislative authority.
Only one such judge happens to be on the high hourt at the moment, but Roberts' holding Thursday was prefigured by similar holdings in the lower courts from Bush appointee Jeffrey Sutton and Reagan appointee Laurence Silberman, not to mention a widely noted op-ed by Reagan appointee J Harvie Wilkinson III. These judges recognize that the central purpose of the 1787 constitutional convention in Philadelphia was to create a new and more powerful federal government; that a central theme of constitutional development since that time has been the expansion of federal authority; and that a holding that the national government was constitutionally prohibited from regulating a private industry that represents 18% of the nation's GDP would signal that our constitution was fundamentally broken.
John Roberts could have ignored all this and picked a fight with President Obama. That he did not makes this a great day for the nation's uninsured, for the vitality of our 225-year-old constitution, and for the public's faith in our independent courts.
Thomas M Keck is the Michael O Sawyer chair of constitutional law and politics at Syracuse University's Maxwell school of citizenship and public affairs
Michael Sparer: 'The US remains in the midst of a bitter partisan debate over healthcare'
The supreme court rejected Thursday a challenge to the constitutionality of the Affordable Care Act. Included in the decision were three important surprises.
First, Chief Justice Roberts was the swing vote, siding with the four court liberals to uphold the law. Most analysts had expected Justice Kennedy to be the swing vote, but Kennedy voted with the dissenters (and would have struck down the entire law).
Second, Chief Justice Roberts ruled that the so-called "individual mandate" was authorized by the congressional taxing power, rather than the commerce clause, which was the constitutional provision previously considered most likely to authorize the law. By so doing, Roberts was able simultaneously to impose limits on federal power under the commerce clause (a long-time conservative goal) without overturning a major piece of federal law.
Third, the court ruled that the Medicaid expansions, which are at the heart of the law's effort to expand insurance coverage, are essentially optional for the states. The federal government cannot (said Roberts) withhold federal funds from the current state Medicaid programs should a state choose not to adopt the expansion criteria. This last "surprise" generates the most important unknown going forward: will conservative governors (Scott in Florida, Perry in Texas, and so on) opt out of the Medicaid expansions, or will the lure of new federal dollars and the pressure from insurers and providers lead them to reluctantly participate?
Where does this decision leave us? The United States remains in the midst of a bitter partisan debate over the future of its healthcare system. The Republicans (led by presidential nominee Mitt Romney) will seek to rally votes by promising to repeal the ACA, if elected – though they also will talk of putting back into law some of the more popular provisions of the ACA, such as the rule that enables young adults to stay on their parents insurance coverage.
Despite the political battling, the effort to implement the law will continue and, unless a Republican Congress repeals it, the law will over time ensure health insurance coverage for millions of Americans, both through the Medicaid expansions and also through the new insurance exchanges combined with federal subsidies, the new federal regulations governing the insurance industry, the requirement that large employers cover their employees or pay a penalty, and the tax credits for small businesses.
The Affordable Care Act has survived constitutional challenge. The effort to provide expanded coverage to the uninsured, to reduce the high cost of healthcare, and to ensure a higher quality and more efficient health delivery system continues.
Michael S Sparer is professor and department chair of health policy and management at Columbia University's Mailman School of Public Health
