From Our 2012 Archives

Legal Experts See a Close Win for Health-Reform Law

By Dennis Thompson
HealthDay Reporter

THURSDAY, March 22 (HealthDay News) -- The U.S. Supreme Court seems likely to uphold the sweeping health-reform legislation known as the Affordable Care Act when it takes up the case next week, according to a small survey of legal experts.

The experts base this prediction on a number of factors linked to the nine justices' legal history, political considerations and the constitutional questions raised by the case itself.

"The folks [26 states] who are challenging the act have somewhat of an uphill battle," said Gregory Magarian, a professor at Washington University Law School in St. Louis. "It's been some time since the court has struck down a major piece of federal legislation on the theory that it exceeds Congress' constitutional authority."

The major argument over the constitutionality of the law -- passed by Congress and signed by President Barack Obama in March 2010 -- centers on the so-called individual mandate. That's the piece of the Affordable Care Act that requires most adults in the United States to have some sort of health insurance or face a fine.

The individual mandate offers the law's opponents fodder for debate, Magarian said, because it requires people to purchase health insurance whether they want it or not.

"That's something the federal government has never exactly done before," he said.

State governments have made related requirements of people -- auto insurance being the most prominent example. But even a requirement to purchase auto insurance isn't universal.

"You can avoid buying auto insurance by not having a car," Magarian said. "Being alive is what triggers the requirement for health insurance."

But, many of the legal experts surveyed believe the justices will conclude that the individual mandate falls squarely within the confines of the Commerce Clause, the part of the U.S. Constitution that gives Congress the right to govern interstate economic activity.

"There really is an interstate commercial effect of not having a federal health-care policy," said Leslie Meltzer Henry, an assistant professor at the University of Maryland School of Law. "In the absence of federal intervention in this area, individuals who desperately need insurance can't get it."

The law professors said the individual mandate is needed to make many of the Affordable Care Act's provisions work. For example, insurance companies that will be required to cover everyone -- even people with preexisting health conditions -- can only survive financially if most adults are required to buy health coverage, whether they are healthy or sick. That will ensure there's enough money in the risk pool.

Neil Siegel, a professor of law and political science at Duke University School of Law, noted that the U.S. Supreme Court has in recent years acted to limit some of Congress' powers under the Commerce Clause. But those cases involved social issues such as banning the carrying of firearms in public schools. Conversely, Congress' economic powers under the Commerce Clause have been upheld and protected by the high court, he added.

"The court has held that in issues of economic activity, Congress can act as if we have an integrated national economy," Siegel said. "Here you have economic conduct [health care] with massive interstate effects. Health care is an area of already pervasive federal regulation."

There are other considerations at work that will affect the justices' decisions, the experts said.

While the Supreme Court hasn't been shy about reversing some legislation, the experts said you have to go back to the Great Depression and President Franklin D. Roosevelt's New Deal to find an example of the High Court striking down a landmark piece of legislation as large and momentous as the Affordable Care Act.

"I think it's unlikely the court wants to create a major public or policy upheaval, which is what it would be doing if it overturned the law," said Robert Field, a professor of law in the department of health management and policy at Drexel University's School of Public Health in Philadelphia. He added that a rejection of the law could potentially have consequences for other major federal programs such as Medicare, Medicaid and Social Security.

But Stephen Presser, professor of legal history at Northwestern University School of Law, believes the health-reform law will be ruled unconstitutional in a narrow 5-4 decision.

"I think [Justices Antonin] Scalia, [Clarence] Thomas, [Samuel] Alito and [John] Roberts will all have to view this as Congress going much too far and virtually ignoring the 10th Amendment," Presser said. "Justices [Stephen] Breyer and [Ruth Bader] Ginsburg have always been strong voices for expanded Congressional power, and Justices [Elena] Kagan and [Sonia] Sotomayor are not going to embarrass the man [Obama] who appointed them, so there are four sure votes to uphold the legislation as well. That leaves only [Anthony] Kennedy as the swing vote, as most commentators, I think, understand."

And Presser believes Kennedy will vote with the conservative justices, based on prior rulings that have argued for states' rights as the best way to preserve individual liberty. "If he follows that logic he will have to vote to overturn the ACA's individual mandate," Presser added.

Political considerations will also be in the back of the justices' minds, the experts said. The challenge to the Affordable Care Act is taking place in a presidential election year, and could strongly affect President Obama's re-election chances.

"If the court strikes down the act," Magarian said, "all of a sudden, the left/center-left is going to be whipped into a frenzy. The path of least resistance would be to uphold the thing and let the status quo stand."

But, some of the experts believe there's also a good chance the Supreme Court will punt on the issue, declaring that the time isn't right for judicial review of the Affordable Care Act.

"I think it's interesting they're going to spend a lot of time -- a third of oral arguments -- on whether the case is 'ripe' for judicial review," said Drexel's Field. "That could be a signal from the court that they're spending that much time on that part of the argument."

Added Allison Orr Larsen, an assistant professor of law at the College of William & Mary in Williamsburg, Va.: "My best guess would be they don't decide it on the merits."

The reason why: the individual mandate, which takes effect in 2014, is a form of tax, and federal law doesn't allow a legal challenge to a tax that has yet to be collected.

"You can't challenge a tax until after you've paid it, and then you can sue for a refund," Larsen said, noting that this legal argument has come up in some lower court rulings on the law.

Such a ruling would delay any challenge to the Affordable Care Act until 2015. This would give the Supreme Court the chance to take the issue off the table in an election year while not explicitly endorsing or scuttling the law. "That's why I think it would be an attractive option for them," Larsen said.

Field agreed. "There's a good chance that they'll do that," he said. "The public might be left very frustrated, from not having a definitive answer, but we should be prepared for that outcome."

All the legal observers believe that the court's reasoning will become much clearer during the three days of arguments that begin on Monday.

"Because the hearing is going to be so long, I think we're going to come out of it with a good idea of what the justices are thinking about," Magarian said.

MedicalNewsCopyright © 2012 HealthDay. All rights reserved.

SOURCES: Gregory Magarian, J.D., professor of law, School of Law, Washington University in St. Louis; Leslie Meltzer Henry, J.D., assistant professor of law, Francis King Carey School of Law, University of Maryland, Baltimore; Neil Siegel, J.D., Ph.D., professor of law and political science, Duke University School of Law, Durham, N.C.; Robert Field, J.D., Ph.D., professor of law, department of health management and policy, School of Public Health, Drexel University, Philadelphia; Stephen Presser, J.D., Raoul Berger Professor of Legal History, Northwestern University School of Law, Chicago; Allison Orr Larsen, J.D., assistant professor of law, College of William & Mary, Williamsburg, Va.