ObamaCare unconstitutional? What to know

The Constitutionality of the Affordable Care Act: An Update

ObamaCare unconstitutional? What to know

On June 28, 2012, the U.S. Supreme Court upheld key provisions of the Patient Protection and Affordable Care Act (ACA) after 26 states had challenged its constitutionality in lower courts.

In last November’s Virtual Mentor health law column, we summarized some of the key legal issues the court would consider in the ACA case, and now we examine their ruling, including the basis for the court’s decision and relevant legal considerations as the ACA is implemented [1].

The Court’s Holding

The Supreme Court’s 5-4 decision determined the constitutionality of two key substantive provisions in the ACA: the individual mandate and a requirement that states expand eligibility criteria for Medicaid coverage [2].

Individual mandate. The most legally and politically controversial aspect of the ACA, the individual mandate requires Americans to purchase health insurance or face a government penalty, with some exceptions—particularly for low-income individuals who cannot afford to buy insurance [3].

The individual mandate has been considered necessary to cover the cost of U.S. health care. Without a mandate, fewer healthy people would pay into the system to counterbalance the cost associated with care for the sick.

The healthy, mostly younger people would be able to “free ride,“ purchasing health insurance only when they got sick, after paying little or nothing up front when their use of services was lower [4, 5].

States that challenged the ACA argued that the individual mandate was an overreach of Congress’s commerce clause powers, the government’s well-recognized (but not limitless) power to regulate certain economic activity that either occurs between states or substantially affects the states in the aggregate [6, 7]. The court reasoned that the commerce clause allows the government to regulate actions of those who participate in a market but not the inactions of those who choose not to participate in that market [8]. Without this distinction, the government could regulate practically anything. Justices analogized that, for example, persons with poor diets are pervasive and more costly to the health care system than the uninsured, yet it would be seen as a strong liberty breach for the government to mandate that citizens purchase only health food [8].

While the court rejected the claim that the individual mandate was within Congress’s commerce power, the mandate was found to be constitutional as a tax [9]. The penalty, though not labeled a tax in the ACA, is similar in several ways to other taxes.

Its amount is determined by income, number of dependents, and filing status, and it is paid into the treasury when filing income tax.

It is not a punishment for an illegal action: failure to purchase health insurance is not illegal, the penalty for refusing to purchase health insurance is less than the cost of paying for actual insurance, and there are no criminal sanctions attached.

(The Congressional Budget Office has predicted that approximately 4 million people will opt to pay the IRS instead of an insurance company [10].

) Moreover, while the individual mandate is clearly intended as an incentive to purchase health insurance, many other taxes are also in place to promote certain behaviors—for example, the government taxes cigarettes to reduce nicotine consumption. Thus the Court found the mandate well within Congress’s power to tax. While Congress doesn’t have the power to require individuals to purchase health insurance, it does have the power to tax those individuals who do not.

Medicaid expansion. The second provision challenged by the states required them to expand their Medicaid programs to cover adults with incomes up to 33 percent above the poverty level by 2014 or to face a penalty (including withdrawal of all federal Medicaid funds) [11].

Most states only cover much poorer individuals and sometimes only low-income families with children [11].

The intended goal of the Medicaid expansion was to increase the pool of people covered under state and federal health insurance programs to include those who would have difficulty affording insurance under the individual mandate.

Striking down as unconstitutional a penalty on nonparticipating states, the court reasoned that Medicaid originally intended to cover four types of needy persons: the blind, the disabled, the elderly, and families with children [11].

It argued that, while Congress has the right to redefine who may fall into the categories of those covered and to provide monetary incentives to states to cover certain populations of persons, the Medicaid expansion changed the original goal of the program itself—making it a not just a program to cover needy persons, but a national health care plan intended to provide universal coverage that, moreover, uses penalties rather than incentives to encourage compliance [11]. Deeming the provision too coercive, the court held instead that the government cannot penalize those states that choose not to expand Medicaid in this way [11].

The Aftermath of the Ruling

Politicians, journalists, and academics a have speculated about the ramifications of the court’s mixed ruling on the constitutionality of the ACA.

The ACA’s timeline of implementation continues into 2014, but certain provisions have already begun or will begin soon. For example, in October 2012, the value-based purchasing program began to give hospitals financial incentives to improve their quality of care and to implement electronic health records [12].

The federal government bolstered state-run health coverage in 2012, allocating funds to the states to cover more preventive medicine, increasing payments for family practitioners, and increasing the resources of the Children’s Health Insurance Program [12].

And in 2014, insurance overhauls will roll out: insurers will be prohibited from discriminating on the basis of preexisting conditions, annual limits on insurance coverage will no longer be permitted, insurers will be required to cover people participating in clinical trials, and tax credits to help individuals and small businesses afford insurance will begin [12]. Most importantly, the individual mandates and the optional Medicaid expansion will begin on January 1, 2014 [12].

In the meantime, the ACA remains a politically controversial law, and some states still seek to oppose or avoid certain requirements. Five states (Missouri, Montana, New Hampshire, Utah, and Wyoming) have passed restrictions on compliance with the ACA until the state legislature approves its implementation [13].

Sixteen states have provisions that say the state government will not enforce the individual mandate [13].

However, because federal law trumps state law and the individual mandate mainly governs the conduct of individuals and their employers, not the states, these laws will have little impact on how the ACA is enforced [13].

Georgia, Indiana, Missouri, Oklahoma, South Carolina, Utah, and Texas have all enacted interstate health compacts that seek to allow them to join together in an effort to establish broad health care programs for their citizens independent of federal control [13].

Interstate compacts have been used in the past when states agree to improve or work together on a shared resource, often such things as responsibility for roadways or bodies of water or land, the collecting of taxes by companies that do business between states, or, sometimes, interstate law enforcement efforts [14]. Such compacts require Congress’s approval to prevent states from overstepping federal authority [15]. Health compacts have been a vehicle for politicians to show their disapproval of the ACA, but some commentators think it unly that Congress would approve a compact that so significantly shielded the states from federal law [16].

While the headlines and the excitement over the Supreme Court’s ruling has begun to diminish, the central controversies of the ACA, including the proper role of federal and state government in matters of health and the challenges of covering the uninsured, will remain at the forefront during the 2012 election and well into 2014.


  1. Esfeld L, Loup A. Constitutional challenges to the Patient Protection and Affordable Care Act—a snapshot. Virtual Mentor. 2011;13(11): 787-791. http://virtualmentor.ama-assn.org/2011/11/hlaw1-1111.html. Accessed October 3, 2012.

  2. National Federation of Independent Business v Sebelius, 132 SCt 2566 (2012).

  3. Requirement to maintain minimum essential coverage, 26 USC sec 5000A (2011). Kahn DA, Kahn JH. Free rider: a justification for mandatory medical insurance under healthcare reform? Mich Law Rev. 2011;110:78-85. http://www.michiganlawreview.org/articles/free-rider-a-justification-for-mandatory-medical-insurance-under-health-care-reform. Accessed September 4, 2012.

  4. Bagley N, Horowitz JR. Why it’s called the Affordable Care Act. Mich L Rev. 2011;110:2-5. http://www.michiganlawreview.org/articles/why-it-s-called-the-affordable-care-act. Accessed September 4, 2012.

  5. National Federation v Sebelius, 2582.

  6. United States Constitution, Art I, Sec 8, Cl 3.

  7. National Federation v Sebelius, 2587-2589.

  8. National Federation v Sebelius, 2593-2560.

  9. Congressional Budget Office. Payments of penalties for being uninsured under the Patient Protection and Affordable Care Act. http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/113xx/doc11379/individual_mandate_penalties-04-30.pdf. Revised April 30, 2010. October 3, 2012.

  10. National Federation v Sebelius, 2601-2607.

  11. The White House. A more secure future: what the new health law means for you and your family. http://www.whitehouse.gov/healthreform/timeline. Accessed October 3, 2012.

  12. National Conference of State Legislatures. State legislation and actions challenging certain health reforms, 2011-2012 (updated August 10, 2012). http://www.ncsl.org/issues-research/health/state-laws-and-actions-challenging-aca.aspx. Accessed September 4, 2012.

  13. National Conference of State Legislatures. 25 states consider health compacts to challenge federal PPACA (updated July 26, 2012). http://www.ncsl.org/issues-research/health/state-laws-and-actions-challenging-aca.aspx. Accessed September 4, 2012.

  14. United States Constitution, Art I, Sec 10.

  15. Gugliotta G. Officials opposed to US health-care law seeking interstate compact. Washington Post. September 17, 2011. http://www.washingtonpost.com/national/health-science/officials-opposed-to-us-health-care-law-seeking-interstate-compact/2011/09/16/gIQAVE0QaK_story.html. Accessed September 4, 2012.

Virtual Mentor. 2012;14(11):873-876.


The viewpoints expressed in this article are those of the author(s) and do not necessarily reflect the views and policies of the AMA.

Источник: https://journalofethics.ama-assn.org/article/constitutionality-affordable-care-act-update/2012-11

Everything you need to know about the Supreme Court’s new Obamacare case

ObamaCare unconstitutional? What to know
The Supreme Court will hear another lawsuit to overturn Obamacare later in 2020. Manny Ceneta/AFP/Getty

Obamacare is going back to the Supreme Court.

The justices announced on Monday that they would hear the ongoing lawsuit to overturn the health care law. Vox’s Ian Millhiser went deep on the case and the background. This is the third, and presumably last, in a trilogy of cases that have threatened the law’s future since President Obama signed it in 2010.

But if you need a bite-size explanation (or want an easy link to explain the case to friends who are wondering), let’s run through the big questions here.

1) What is this lawsuit about?

In 2017, Republicans in Congress passed their tax bill and President Trump signed it into law.

That law, among its many changes to the US tax code, repealed Obamacare’s financial penalty for failing to carry health insurance. But it did not repeal the mandate itself.

The requirement that all Americans have health insurance is still technically on the books; there is just no penalty for failing to meet it.

A group of Republican state officials, led by Texas, used this legal limbo to challenge Obamacare’s constitutionality. They have since been joined by the Trump administration. Their argument goes something this:

  • Chief Justice John Roberts upheld Obamacare in 2012 by ruling that the individual mandate was a permissible use of Congress’s taxation power.
  • After the GOP tax bill became law, there is no longer a “tax” for failing to satisfy the individual mandate, and so that rationale no longer holds up.
  • The individual mandate must therefore be found unconstitutional.
  • And because the mandate is so intrinsically important to Obamacare overall, if the mandate is unconstitutional, then so must be the entire law.

Democratic-led states and many legal experts disagree. First, they don’t think anybody should be able to sue at all. Who is being harmed by … not being fined because they don’t have insurance? Where is the legal standing to bring the lawsuit in the first place?

But they also reason that because Congress chose to repeal the mandate but nothing else, then lawmakers intended for the rest of the law to stand without it. Congress changes our laws all the time, and nobody usually argues that the underlying statute should be overturned.

So on the merits, once we get past the standing issue, this case is about Congress’s ability to amend laws after they’ve taken effect.

Most of them are extremely dubious, for the reasons above. This is how Millhiser summarized the legal consensus of conservatives:

Jonathan Adler, a conservative law professor — and a leading evangelist for an earlier lawsuit seeking to undercut the Affordable Care Act by reading a poorly drafted provision of the law to cut off much of the act’s funding — labeled many of the red states’ arguments “implausible,” “hard to justify,” and “surprisingly weak.” The Wall Street Journal’s editorial board labeled this lawsuit the “Texas Obamacare Blunder.” Yuval Levin, a prominent conservative policy wonk, wrote in National Review that the Texas lawsuit “doesn’t even merit being called silly. It’s ridiculous.”

They aren’t alone, either. Some Republicans in Congress think the lawsuit is ridiculous too. Sen. Lamar Alexander, the Republican chair of the Senate health committee, has criticized the Trump Justice Department for pursuing the litigation.

Sen. Susan Collins of Maine, one of the key Republican swing votes on the Senate tax bill, says she did not think she was voting to overturn Obamacare entirely (and she had notably voted earlier the same year against the Republican repeal plans).

3) When will the case be heard and decided?

I checked with the University of Michigan’s Nicholas Bagley, a leading health care law expert, and he said he expects this to be the rough schedule:

  1. The case will be heard in the fall of 2020, possibly in the month before the presidential election
  2. The justices will ly issue their decision in the spring or early summer of 2021 — June at the latest, Bagley says.

So this lawsuit will be hanging over the rest of the 2020 campaign. But before we get to the politics, let’s remember there are real stakes here.

4) What would happen if the Supreme Court overturned Obamacare?

It would be, in effect, the same as Congress repealing Obamacare without anything to replace it. Everything would go: protections for preexisting conditions, subsidies that help people purchase insurance, the Medicaid expansion. Even provisions unrelated to insurance, nutrition requirements for food labels, would be gone.

The Urban Institute reviewed the ly consequences in grim detail:

The number of uninsured people would increase by approximately 20 million, or 65 percent nationally, [and] the increases in uninsurance would be most heavily concentrated among people with the lowest incomes (below 200 percent of the federal poverty level), young adults, families with at least one full-time worker, and residents of the South and West. These subpopulations of the United States have experienced the largest gains in insurance coverage under the ACA and consequently would be hit the hardest if the law were repealed.

States that expanded Medicaid would get the worst of it: Urban projected their uninsured rates would nearly double if the law were overturned. The uninsured rate for black Americans would increase from 11 percent today to 20 percent without Obamacare; there would also be a dramatic spike in uninsurance among Hispanics.

And considering we know health insurance protects people financially and helps them live longer, we would expect that increases in the uninsured rate would mean more people going into debt over medical bills and, yes, people dying because they lack coverage.

One thing to consider: It is possible the Court could choose to overturn the mandate and only a few other select provisions, the preexisting conditions rules, which were very much linked to the mandate when the law was drafted.

But that’s not what the states or the Trump administration are asking for. They want the whole law tossed out.

5) So is the Supreme Court going to overturn Obamacare?

We should never presume we know how the Supreme Court justices are going to rule. But it does seem unly they’ll overturn the law entirely so long as the Court’s composition doesn’t change.

Roberts has rescued Obamacare twice from legal challenges that threatened its very existence. Would he really choose this case, with its validity doubted even by conservative legal scholars, to pull the rug out from under it?

But there is an important caveat above: “so long as the court’s composition doesn’t change.” It’s uncomfortable to mention, but liberal Justice Ruth Bader Ginsburg has not been in good health.

From Bagley, writing in the JAMA Health Forum:

Oddly enough, the deciding factor may have less to do with law than with medicine. In August 2019, Justice Ruth Bader Ginsburg revealed that she had undergone treatment for a malignant pancreatic tumor. Although she now says that she is cancer free, pancreatic cancer is a tough diagnosis at any age, much less at 86 years.

Can the liberal justices count on Justice Ginsburg to remain on the Supreme Court through the end of this year? If not, agreeing to hear the case now could be especially risky: President Trump might have a chance to replace her with a conservative justice, who could in turn provide the fifth vote for ending the ACA.

Maybe it is better to wait and hope that a Democrat prevails in the coming election.

Senate Majority Leader Mitch McConnell has made clear he would fill a Supreme Court vacancy in the months before the presidential election. If the Court’s ideological balance shifted from 5-4 in favor of the conservatives to 6-3 before the case is heard, then all bets are off.

6) Can Congress do anything to stop the lawsuit?

Some liberal scholars think so. Bagley and his Michigan colleague Richard Primus laid out a few options in 2018, shortly before Democrats took control of the House:

  1. Increase the mandate penalty to a nominal amount (even $1)
  2. Pass a bill declaring that the rest of Obamacare should stand even if the mandate falls
  3. Simply repeal the mandate entirely, as it is still technically on the books even though the penalty for not complying is $0

However, Democrats don’t agree at all on whether they should actually take those steps, and, to date, the House has not passed any such bills. They fear, for one, that the Republican Senate would not act.

“We take very seriously the threat we could have a worst of all worlds: A legislative fix does not become law and only serves to undermine the position of the House, which is that the ACA is constitutional as is,” a House aide told me last year.

But Bagley finds that line of reasoning unconvincing.

“There’s no such thing as risk-free litigation,” he told me previously. “You should do anything and everything you can to make this misbegotten lawsuit go away.”

7) How is this going to affect the election?

It’s hard to say! After all, we don’t even know who the Democratic nominee is going to be. But it seems ly the Trump administration’s support for a lawsuit that would lead to 20 million people losing their health insurance is going to be a focus for Democrats’ messaging.

The polling already shows voters trust Democrats over Trump on health care and that health care is a big issue for voters.

And now, the Justice Department is ly to be filing briefs over the coming months arguing on Trump’s behalf that Obamacare should be overturned.

Then we’ll have the very public drama of oral arguments at the Supreme Court, possibly in the month before voters head to the polls.

It’s going to be a big issue. And remember, Obamacare is more popular today than it ever has been:

Kaiser Family Foundation

Nevertheless, Republicans are still pushing to “repeal” the law by any means necessary. They’ll get their next chance at the Supreme Court.

This story appears in VoxCare, a newsletter from Vox on the latest twists and turns in America’s health care debate. Sign up to get VoxCare in your inboxalong with more health care stats and news.

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Источник: https://www.vox.com/policy-and-politics/2020/3/2/21161829/supreme-court-obamacare-2020-case

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