The oral argument beginning today in the legal challenge to the nation's landmark health care reform law is also a test for the U.S. Supreme Court. In 2000, the high court issued what was widely viewed as a political decision in Bush vs. Gore, where the court split along ideological lines to prematurely end the presidential recount in Florida. The health care law challenge is another highly political case from Florida, with momentous consequences for the nation. This is an opportunity for the Roberts court to demonstrate that following the law is more important than serving an ideological agenda.
Florida filed its challenge to the Patient Protection and Affordable Care Act within minutes of the act being signed by President Barack Obama in 2010. It is joined by 25 Republican-controlled states. The crux of the claim is that the Affordable Care Act violates the U.S. Constitution by overstepping federal authority and infringing on states' rights. But the real motivation is to strike down the centerpiece legislative achievement of a Democratic president and dismantle a national system of medical security for virtually every American.
At the core of the challenge is the law's individual mandate that requires virtually every American to have health coverage or pay a penalty. That requirement is not an expansion of federal authority. It fits squarely within court precedent going back 70 years that was affirmed as recently as 2005 with the assent of conservative justices Antonin Scalia and Anthony Kennedy. Congress has broad power under the Commerce Clause to regulate even personal, noncommercial decisions when those choices in the aggregate have a substantial effect on interstate commerce.
That analysis perfectly fits Americans who choose not to buy health insurance and then seek medical care they cannot afford to pay for out of their pocket. Their collective choice substantially impacts the national health care marketplace by shifting tens of billions of dollars in unpaid medical expenses annually to government and hospitals. Congress is well within its power to address this imbalance by requiring everyone to have affordable health insurance or pay a penalty that helps defray the costs of the uninsured. If the court's five conservative justices use this issue as an opportunity to overturn or disregard long-standing Commerce Clause precedent, it will be a sure sign of a politicized court.
While two federal appellate courts upheld the individual mandate, the 11th Circuit U.S. Court of Appeals struck it down. But the 11th Circuit let stand the rest of the law. Courts have an obligation to leave in place any part of a law that is not constitutionally defective through a presumption of severability, and the states should fail in their effort to get the entire law struck down if the individual mandate is set aside.
The states also claim the law's expansion of Medicaid to more low-income Americans is unconstitutionally coercive and a violation of states' rights. That claim also is legally insupportable. Established precedent says Congress can set conditions on its spending. If states don't want to go along, they can drop Medicaid entirely. That would be financially foolish and harm their own residents, but they could do it.
Then there is the question of whether the penalty for not having health insurance is a federal tax. Under the Anti-Injunction Act a challenge to a federal tax generally cannot be brought until the tax is assessed. In this case the penalty doesn't kick in until 2015, so it is possible for the high court to toss the suit out until then. One appellate court did just that. And if the penalty is determined to be a tax, the federal government's broad taxing authority would also support its constitutionality.
In a report by the American Bar Association, 85 percent of Supreme Court legal experts polled said they expected the law to be upheld. The wide margin suggests that this is not a close case. Congress has the power to bring order to a chaotic and inefficient health care system that constitutes 17 percent of the economy. It can require everyone to be medically insured so that the system is broadly funded by healthy and sick alike. The Supreme Court should follow legal precedent and uphold the Affordable Care Act.