Weighing the constitutionality of the Affordable Care Act

2 Comments | This entry was posted in Health Care, Public Policy

The Supreme Court of the United States will consider questions bearing on the constitutionality of the Affordable Care Act (a.k.a. the Patient Protection and Affordable Care Act) next year. The Justices will hear a record total of 5 ½ hours of oral arguments by March 2012, with a decision expected by June.

Will this decision mark the finale of the health care law? That is somewhat doubtful, particularly given the Court’s preference for reaching smaller decisions rather than larger. In addition, the Court has asked for arguments on whether the lawsuit is premature, given that no penalties have been levied against individuals yet for failing to purchase insurance. This question of timeliness (ripeness, in legal parlance) could be a key detour for questions of constitutionality.

The biggest question is whether individuals can be compelled to purchase insurance. The Obama Administration argues that everyone eventually enters the health care system, thus influencing the stream of commerce (Congress’ power to regulate interstate commerce). In addition, the Administration has come around to the view that these penalties are, after all, taxes (pursuant to Congress’ power to levy taxes). The Court will consider these issues, along with whether the law’s Medicaid expansion improperly coerces state action or resources. Finally, the jurists will consider whether infirm parts of law can be severed, allowing the remainder of the law to stay in place. Normally, Congress plans for this eventuality with a “severability clause.” However the Affordable Care Act specifically does not include this language.

Thus, the Supreme Court could declare all, some, or none of the law unconstitutional. Or, it could decide that the case is not yet ripe to be heard. Not exactly “Law and Order” style finality, is it?

NRF counseled others early on not to put all their eggs in the litigation basket. Some of the litigants before the Court have been our steadfast allies, both in making the law more workable as well as working with Congress to overturn all or parts of the law. But, we’ll be watching the Court closely in the coming year … to see if the Justices act – in this case – to un-do that which Congress has wrought. As the Court ought to…

Posted in: Health Care | Public Policy and tagged , , , ,


  1. Posted November 19, 2011 at 10:40 am | Permalink

    The NRF is on the wrong side of the legal argument. I am surprised all the great business minds have missed to opportunity to cost shift healthcare administration and choice from companies to individuals and the public sector. The cost burden and choice should be one managed by individuals not companies. This also gets companies out of the moral choices that inevitably come up within the healthcare choices families make. This would segregate the healthcare discussion to a large degree, to be carried out between the insurance industry and individuals if a pure nationwide marketplace model is developed with public component for low income individuals or a “public option” for everyone. Non-insurance and non healthcare industry firms should merely adjust their compensation structures to attract competent staff so that they can have the funds available to make their healthcare choices for themselves.

  2. Posted November 21, 2011 at 1:58 pm | Permalink

    The commentator makes a fundamental error – that retail’s objective is to stop providing health coverage to our employees. That wasn’t the case going into reform – our platform for reform (NRF’s Vision for Health Care Reform) called for building on employer-based coverage by reducing the cost of medical care, and hence, health coverage – but may well be the outcome of the ACA/PPACA, as the writer notes. Failure to contain costs plus a penalty structure that is less expensive than providing coverage may well lead to that outcome.

    No one wins if coverage costs shift to the public sector – taxes will surely increase as health coverage joins existing entitlements, much to our future peril. There are also no guarantees that employee compensation will increase as a consequence of retailers no longer providing coverage: consumers continue to seek the lowest prices in our stores.

    NRF continues to be active in working to smooth the path to implementation (after all, our members will have to live with the consequences of the law) while seeking the repeal of key parts (e.g., the employer mandate penalties) as well as repeal of the entire law. It may not fit together as neatly as the commentator might want … but it fits where our members are.

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