The United States Supreme Court is set to issue its ruling on the Patient Protection and Affordable Care Act later this month. Here is an overview of what to expect.
There are four questions for the Court to answer:
1. Whether the challenge to the individual mandate can be heard now, or must it be delayed until the mandate goes into effect?
2. Whether the individual mandate, forcing Americans to purchase health insurance or face fines, is constitutional?
3. If the mandate is found to be unconstitutional, is it severable, meaning, will the rest of the law survive?
4. Whether the expansion of Medicaid is unconstitutional?
Due to the number of questions, there is a good chance we will have some confusion with judges joining the majority only in certain parts and objecting to others, writing their own concurring opinions, and even joining the decent in some other parts.
Question 1: Should this challenge be delayed?
The sense from oral arguments was that the Justices are not inclined to delay this challenge until the mandate goes into effect. If any Justice were to answer this question in the affirmative, then they need not answer the other questions, as he or she would be arguing that they are not ripe for the Court to hear.
On the contrary, if they, as we expect, affirm that it is proper for them to hear the arguments, then further analysis would be needed.
Question 2: Is the individual mandate constitutional?
This is the most important part of the decision and the one about which everyone will be talking. There is a strong likelihood that this is also the question that would bring the most division among the Justices. Can the government force Americans to buy health care under penalty of law?
At oral arguments, the government struggled to articulate its position, and it seemed clear that it would be hard to uphold this part of the law, while still claiming there are any constitutional limits on government once it claims it is “regulating commerce.”
The best outcome would avoid a political divide on this question, whether actual or perceived, setting a clear precedent limiting the power of the federal government to force individuals to enter into commerce in order to regulate their behavior.
Question 3: Should the rest of the law survive?
This is another area where there is sure to be some division among the Justices. If the best outcome becomes a reality, where you have some liberal members of the Court admitting that the mandate is indeed unconstitutional, there is a strong likelihood that they will, nevertheless, say that the rest of the law should stand.
Frankly, this law is so massive that one could even perceive some conservative members of the court agreeing that the rest of the law is for Congress to figure out, also. The argument that the individual mandate was so central to the law as to render it virtually impossible to keep the law without it was met with much skepticism at oral arguments.
Question 4: Is the expansion of Medicaid constitutional?
The argument here is that by making the participation in Medicaid overall contingent on participation of this new endeavor by the federal government, its actions amount to forceful coercion against the states. The liberal members of the court seemed very reluctant to see it that way.
Justice Breyer gave the strongest defense for the constitutionality of this part by claiming that a basic principle of administrative law is that the government must act reasonably. But interestingly, the government seemed to reject that help, making their position even more difficult to defend.
There is likely to be a strong split on this question, also.
The United States Constitution clearly demands that the individual mandate be declared unconstitutional. Beyond that the whole law should be thrown out as it is completely dependent on the “revenues” imposed by the unconstitutional mandate. And if the Supreme Court is not willing to do so, Congress must act swiftly to repeal this horrible legislation that will harm all Americans, especially women and children.
Be sure to check back here at ConcernedWomen.org regularly where we will have the latest news on the case and complete analysis of the decision as soon as it comes out.