With oral argument concluded, the United States Supreme Court will now decide the constitutionality of the new Federal Healthcare Act. I have had the privilege of serving on Attorney General Sam Olens’ team of pro bono lawyers representing the State of Georgia, which along with 25 other States, is challenging the constitutionality of the law. This has been a special experience the past year leading up to the historic Supreme Court decision. No matter which way the Court rules, it will have a dramatic impact on all of our day-to-day lives for years to come.
As the case heads toward a final decision by the high Court, many have asked about the basis for the legal challenge, which can be difficult to understand from brief media reports. Hopefully, this article will help clarify the issues the Court will decide.
Whatever one's views about whether the Act is the right solution to provide affordable and accessible health care, that issue will not be decided by the Court. So, whether it is sound policy or not to "mandate" that all citizens be compelled to have healthcare insurance, this issue will not be determined by this case. Instead, the primary question before the Supreme Court only is whether the Federal Government has the constitutional authority to do so.
Not since early in our elementary school education have many given much thought to the express language of the Constitution that the Federal Government's authority is "limited." While this basic principle of federalism receives little attention these days, it is a central tenet of the Constitution. In recent years, the Supreme Court actually has struck down federal laws designed for very good purposes because the subject matter was one for state regulation and outside the scope of the "limited" powers of the Federal Government. In reality, the legal debate over the Healthcare Act boils down to a fundamental disagreement about the proper constitutional role of the Federal Government.
In simplest terms, the States argued that the Constitution provides no authority for the Federal Government to tell every citizen that he or she must be covered by a health insurance policy and do so on terms that it sets. The States contend that the Federal Government does not have any constitutional right to issue "healthy" or "worthwhile" statutory dictates to ordinary citizens regardless of the Government's belief they would have a "positive impact." Whether it is requiring everyone to eat a healthy diet, or to purchase certain products that would be beneficial to the economy, the States believe that this is an issue of individual liberty. The States contend that the right to do or not do as one pleases would have no meaningful protection if the Court permits the precedent of everyone being required to have a specific health insurance policy designed by the Federal Government.
In response, the Administration argues that the Healthcare Act is a reasonable exercise of its constitutional right to regulate interstate commerce. The Administration contends that everyone eventually needs healthcare and forcing everyone to be covered by an insurance policy is a prudent way to spread the cost of an expense everyone will need at some point in their lives. The Administration says that requirements such as mandatory agricultural price supports or regulating telephone rates are forms of "mandates" long required of citizens and are perfectly legal.
In the oral arguments before the Court, a key swing Justice seemed to believe through his questions that the Healthcare insurance mandate was possibly different than what the Government previously has imposed. Justice Anthony Kennedy recognized that the healthcare insurance policy mandate will affect everyone solely because they are born and live. Justice Kennedy noted in his questions to the Solicitor General who argued the case for the Administration that this could be a "fundamental" and "unprecedented" change in the relationship between the Federal Government and its citizens. On the other hand, Justice Kennedy also seemed interested in the Administration's contention that healthcare was a "unique" industry. The Solicitor General argued that the Act's singular mandate of buying a health insurance policy did not necessarily mean there was no limit to the Government's use of the commerce clause to impose authority over individuals.
Another argument advanced by the States is that the Act's expansion of medicaid coverage would impermissibly "coerce" the States to accept the expansion and other changes to the program. States could essentially be forced to raise taxes to pay the additional medicaid costs under the threat of a cut-off of all medicaid payments.
If the Court does nullify the insurance policy mandate, it then will decide whether to strike down all or part of the remaining provisions of the Act. There was much discussion on that question in the oral argument. There are a myriad of options if the Court does find the insurance mandate unconstitutional but keeps intact some of the Act, and each of the four lower courts to strike down the mandate have answered this severability question differently. The Court literally could be faced with going through over two thousand pages of the Healthcare statute to decide what stays and what goes.
Predicting how the Court will rule on any case based on their comments at oral argument is notoriously unreliable. As noted by one of my colleagues on the Georgia team, after oral argument in a recent patent case, the Court seemed certain to rule in one party's favor only to rule ultimately 9-0 in the favor of the opposite side.
Here, however, the Healthcare case does strike at core philosophical principles about which most Justices have a well developed record. Many Court commentators now contend that the views of all but a couple of Justices were revealed fairly clearly in the oral argument, at least with regard to the insurance mandate question. Notably, much of the popular media seemed surprised that many on the Court were so skeptical of the Administration's position. Frankly, those involved in the case fully expected there would be a solid core of Justices receptive to the position that Congress had overstepped its constitutional limits. For whatever reason, there seemed to be little recognition in many quarters that the constitutional challenge was quite serious. Only after the oral argument have those in the general media seemingly acknowledged that the fate of the Healthcare Act appears very uncertain.
At present, most Court commentators have predicted that Justices Breyer, Sotomayor, Kagan and Ginsburg will vote to uphold the Act. On the other side, the conventional wisdom is that Justices Thomas, Scalia and Alito will vote that the mandate is unconstitutional. All but the famously silent Justice Thomas (who never asks any questions) posed very skeptical questions to the Solicitor General that suggest they will reject the Administration's position.
It is widely believed the key vote will be that of Justice Anthony Kennedy. Also, some commentators say that Chief Justice Roberts is inclined to vote with the three conservative justices, but he may not do so if Justice Kennedy decides to uphold the statute. The Chief Justice is known to be very conscious of the Supreme Court's role and legacy in the American political system, and it is thought that he may be troubled by such an important decision coming down to a single vote. If it is clear the votes are there to uphold the statute, he (and perhaps others) may strain to find grounds to support the majority if only to lessen the controversy that would follow if the Court upheld the statute by only one vote. Also, as Chief Justice, if he is in the majority, he will decide who writes the majority opinion. He could author the written decision himself or by being on the majority side influence it to be more limited in its application, or so the thinking goes.
As for my own view, I am admittedly biased, but I am optimistic the Court will find the Healthcare Act to be unconstitutional. Justice Kennedy, no doubt, will be a pivotal vote. Interestingly, many forget he has long demonstrated a strong libertarian streak and has consistently recognized the importance of "liberty" as a fundamental American right. Ironically, Justice Kennedy has been criticized by both the left and the right for his "centrist" views. But, a closer review of his record and his consistent support for individual liberty suggests this is why he sometimes swings between what is considered the "liberals" and "conservatives" on the Court. His questioning at the oral argument seemed clear he is troubled by the far reaching implications of the insurance mandate. Justice Kennedy (and Chief Justice Roberts) never gave any indication they were fully satisfied by the Administration's attempts to articulate a meaningful limitation on possible future laws directing the daily lives of all citizens. I am hopeful that concern for the personal liberty of all our citizens and our children ultimately carries the day.
Of course, I should disclose that I was very confident on August 15th of last year that our hometown Atlanta Braves and the Boston Red Sox were both certain to make the playoffs three weeks later. We know how that turned out.
In closing, I would like to thank Attorney General Sam Olens for appointing me to his group, and also thank my colleagues Jason Alloy, Josh Belinfante, Pitts Carr, Frank Jones, David Oedel, John Parker, and Mike Russ who all served on the Georgia team. They are amazingly bright lawyers. Also, my partners and our attorneys at FMG were very supportive and added greatly to my input.
It has been the experience of a lifetime to participate in this process, if only in a very small way. In late June, like all in our great country, I will await with much anticipation the final outcome.