SCOTUS Preview Part 2: Analyzing The Likely High Court Arguments On The Health Law

In part two of analysis of the Supreme Court’s upcoming decision on the health law, Stuart Taylor talks with Jackie Judd about the arguments each side is likely to make defending or against the individual mandate and the Medicaid expansion.

>> SCOTUS Preview Part 1: The ‘Very Big Deal’ – SCOTUS Takes On The Health Law

>> The Supreme Court Decides: Health Law At The High Court

Here’s a transcript of the whole conversation:

JACKIE JUDD: Good day, I’m Jackie Judd. Beginning March 26, the Supreme Court begins an extraordinary three days of hearings on the health care overhaul law, the Affordable Care Act. The central issues are the individual mandate requiring most Americans to obtain health insurance or pay financial penalties, and the expansion of Medicaid, and whether each is constitutional. Stuart Taylor, a contributing editor for the National Journal on legal matters joins us today to dig deeper. Welcome, Stuart.

STUART TAYLOR: Nice to be with you.

JACKIE JUDD: Let’s talk about the mandate first. When you’ve gone through the briefs, how has the federal government, how have the state governments tackled the constitutional questions raised by the mandate?

STUART TAYLOR: The fundamental question about the mandate is whether Congress has power – at all – under the United States Constitution – to require people to buy health insurance or any other commercial product they don’t want. Congress has never done this before, and so there’s no clear precedent, but the government claims it has ample power a) to regulate interstate commerce, which has been broadly construed and b) to lay and collect taxes, which has been even more broadly construed, and that each of those powers independently suffices to justify the individual mandate as a response to a national crisis in health insurance coverage, which clearly involves interstate commerce.

The states on the other hand say: No, the commerce power has never been interpreted that broadly, and if it’s interpreted that broadly, the federal government’s power will be without limit, contrary to the intent of the framers. The federal government could require anybody to buy anything. That’s not what the constitution provides.

On the taxing power, again, the government says: We have power to do this because the taxing power is broad enough to encompass what was done here, because it’s a penalty provision that’s paid to the Internal Revenue Service if you don’t buy the health insurance. The states say: Hold on a minute, while this was pending in Congress, the President and other supporters said, “This is not a tax.” They said that, because they knew it would not have passed if the people thought it was a tax, and they can’t turn around now and say, “Guess what? It’s a tax for purposes of us defending its constitutionality.” They say that would defeat accountability in government.

JACKIE JUDD: One of the lesser known issues that will be discussed at the court hearing, but important, is the anti-injunction act. What is the AIA and how does it apply – or how may it apply – to this argument?

STUART TAYLOR: This is one issue on which both opposing parties agree, but it gets complicated.

JACKIE JUDD: Of course.

STUART TAYLOR: The anti-injunction act says that no court can enjoin a federal tax unless and until it’s actually being collected, which in this case would not be until 2015, because the mandate doesn’t take effect until 2014, and so forth. And so the argument would be – and the court will hear an argument from an independent lawyer – the individual mandate litigation has to be deferred until 2015 because there’s a law that says the court can’t do anything about it because it’s a tax for purposes of the anti-injunction act. Both the federal government and the states say, “No, it’s not a tax for purposes of the anti-injunction act, it’s a penalty. And therefore the anti-injunction act doesn’t apply.”

Now you may think, “Well, wait a minute, didn’t the federal government just say that this is a tax for purposes of being within the power of Congress to lay and collect taxes?” Indeed they did. But they say, “Here the interpretation of what tax means in the anti-injunction act is different than the constitutional question and we have lots of reasons to say it’s not a tax for purposes in the anti-injunction act.”

JACKIE JUDD: And is there some possibility here that the justices could decide that these questions can’t be answered until 2015?

STUART TAYLOR: That the individual mandate questions can’t be answered?

JACKIE JUDD: Yes.

STUART TAYLOR: There is a possibility. I’d say most people would say it’s not very likely, but frankly, if they want to duck – if it’s a close call and they want to duck this in an election year, that would be a very convenient way to do it.

JACKIE JUDD: Now the other issue – it’s still attached to the question over the mandate – is severability. Whether the mandate can be judged separately or if it is so intrinsic to the overall law that the whole law either rises or falls on it.

STUART TAYLOR: Right. There’s a range – remember this is a 2,700 page law with dozens and dozens of provisions and there’s a range of answers to that question. Some say, neither of the parties in this case say, but some say the rest of the law should stand. Congress would have wanted it all to stand even if the individual mandate was gone. The federal government says, “Well, most of it should stand but there are two big provisions: the ones that require insurers to take everybody regardless of pre-existing medical conditions and not to discriminate against people based on medical history in their premiums. Those would have to go down with the mandate,” says the federal government, because it is the mandate that would provide the insurers with the money to pay the extra costs they would incur. The 26 states and their allies, on the other hand, argue that the mandate is an integral part of the law, that it all falls apart without the mandate, that the coalition that supported it would not have supported it without the mandate, and that, therefore, the whole law needs to go down.  So the court has a huge range of options there. 

JACKIE JUDD:  And then on the issue of Medicaid, the expansion of Medicaid, how do the parties attack this issue in their briefs?

STUART TAYLOR:  The 26 states say that they being coerced by this law to expand Medicaid beyond the point where they can afford it in the long run.  The federal government would pay the costs of it in the short run.  But the states would eventually have to pay more.

They have traditionally voluntarily participated in Medicaid in exchange for the federal money.  They say, well this is different, because we are now so dependent on Medicaid that we can’t afford not to be in it.  And this law requires us to pay more money or it takes it all away from us. The federal government says that you can drop out of the Medicaid program if you don’t want to keep participating in it, and, therefore, it’s voluntary.  And, therefore , you’re not being compelled.  And, therefore, it doesn’t violate state sovereignty under the 10th Amendment.

JACKIE JUDD:  Final question:  The cases will be heard in late March.  When should opinions be expected? 

And it may fall right in the middle of the height of the presidential campaign season.  What impact might that have?

STUART TAYLOR:  Sure.  The opinions are likely to come down in late June, possibly in early July – although they usually finish all their cases by late June.  A big case like this that’s argued late in the term definitely wouldn’t come before late June. 

How it would affect the campaign is tricky.  It would have manifold effects, but, ironically, if the court strikes down the mandate, the most obvious effect would be to energize the left – energize the Democratic base to attack the court as part of a Republican right-wing conspiracy and to say, “We have to do something to roll this back somehow.”

On the other hand, the states and others who are attacking – the conservatives who are attacking the constitutionality of the health care law might be energized to say:  “Well, now that the courts have upheld it, if that’s what happens, the only way we can get rid of this thing is to get a Congress and a president who will repeal it.”

So it could energize the one base or the other or both, depending on the outcome.

JACKIE JUDD:  Thank you so much, legal analyst Stuart Taylor.

STUART TAYLOR:  Thank you.