The U.S. Supreme Court Cases on the Patient Protection and Affordable Care Act

March 22, 2012
Legal Updates

Next week, the U.S. Supreme Court will hear arguments in one of the most politically charged cases ever to come before the Court.  Rarely is the Court forced to weigh in on an issue that may well serve as the touchstone of an upcoming presidential election. Unsurprisingly, the general public has immersed itself in the dispute surrounding the constitutionality of the Patient Protection and Affordable Care Act, more sensationally known as "Obamacare."

As remarkable as the public interest in the case may be, the Supreme Court's attention to the case is equally exceptional.  Whereas a typical Supreme Court argument lasts no more than an hour in a given morning, the Court has devoted five-and-a-half hours over the course of three days to arguments over Obamacare.  The only case in decades to consume anywhere near this amount of the Court's time was the campaign finance reform challenge of McConnell v. FEC, which was delegated four-and-a-half hours. 

The extreme amount of time that the Supreme Court has allocated is more than just a reflection of the great interest and importance the case carries.  Even Bush v. Gore, effectively determining the president of the United States, merited only 90 minutes of argument.  More like McConnell v. FEC, the large allotment of time likely indicates that there may be a wide divergence of opinions on the Court as to how the case should be decided. 

The Supreme Court has preemptively divided the time allocated for argument into four distinct issues.  The first concerns the act's individual mandate, requiring citizens to purchase health care.  The Court will consider whether this requirement is authorized by the Commerce Clause.  The second is the act's requirement that the states expand their Medicare services in order to continue receiving federal funding.  The Court will consider the constitutionality of this requirement under the Spending Clause.

These first two matters concern the substance of the dispute and, involving more grandiose issues of constitutional law, have received the bulk of media attention.  However, the importance of two other issues on which the Court has directed oral argument should not be underestimated. 

The Court has requested 90 minutes of argument on the issue of severability.  The issue concerns whether striking down part of the act would require invalidation in its entirety.  The fact that the Court considers this matter a significant concern suggests that the Court contemplates a reasonable chance it will have to deal with the severance issue—which would only come into play if the Court strikes down part of the Act.     

The final issue on which the Court has ordered arguments, the effect of the Anti-Injunction Act, might well make this case the most anti-climactic story in recent memory.  This issue requires resolving whether Obamacare is actually a tax.  As part of Obamacare, Congress modified the IRS code to impose a tax penalty on people who fail to secure the required insurance coverage, so that an individual's challenge to Obamacare is really a challenge to this tax.  Under the Anti-Injunction Act, a tax challenge does not become ripe until the tax has been imposed on the taxpayer.  Since the individual mandate does not become effective until 2014, challenges to its constitutionality may have to wait two more years. 

Because it could prevent immediate resolution of the issues being litigated, this final issue is unpopular to all sides.  In fact, the parties to the case initially requested that the Court avoid resolving the case based on any Anti-Injunction Act analysis.  Nonetheless, the Court, sua sponte, has appointed outside counsel to argue the merits of this issue. 

The Court's apparent interest in the Anti-Injunction Act could foretell a dissatisfying result for many adamant followers of the case.  However, resolution on these grounds would have the benefit of allowing the verdict on Obamacare to be rendered by the public, through the 2012 election, instead of the Court.  Given that some Supreme Court Justices have recently expressed concern about the Court appearing too political, resolution on Anti-Injunction Act grounds may have some appeal.   

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