Health Care in Court: A Primer to the Supreme Court Case

Wednesday, March 21, 2012

The United States Supreme Court is considering whether the massive health care overhaul known as "Obamacare" passes constitutional muster. Here's what you need to know about the challenge, the defense, the mixed court decisions so far — and what the Constitution actually says. 


The States Challenge - Florida’s Supreme Court Brief

"The constitutionality of a mandate to maintain insurance was subject to serious question long before Congress enacted the [Affordable Care Act]. When the concept first arose in the early 1990s, the Congressional Budget Office (CBO) informed Congress that “[a] mandate requiring all  individuals to purchase health insurance would be an unprecedented form of federal action.”

The Defense – the Obama Administration Brief

"The minimum coverage provision [the individual mandate] is integral to the Affordable Care Act’s insurance reforms.  Those reforms are part of the Act’s broad framework of economic regulation and incentives designed to address the terms on which health insurance is offered, rationalize the timing and method of payment for health care services, expand access to health care, and reduce shifting of risks and costs.  That framework builds upon decades of federal involvement in this enormous and highly regulated segment of the national economy."


The Text - What the Constitution Says 

Article 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives…

The Commerce Clause – Article I, Section 8, Clause 3

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The Necessary and Proper Clause – Article 1, Section 8, Clause 18

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


The Mixed Decisions: The Federal Appeals Court Rulings


What People Are Saying: Commentary Reading List

The main argument that opponents of the health-care law have come up with is that the mandate regulates economic inactivity—i.e., not buying insurance—and the Commerce Clause allows only the regulation of economic activity. In the first appellate review of the law, last summer, the Sixth Circuit demolished that argument.

— Jeffery Toobin in The New Yorker

The challengers can point to no Supreme Court precedent striking down a similar federal mandate, but that’s only because Congress has never previously enacted such a mandate. The mandate is unprecedented, and the 26 states challenging the law attempt to turn that fact in their favor. 

— Adam J. White in The Weekly Standard

The power to compel a private individual to engage in commerce with a private corporation is not lesser than the power to regulate voluntary commerce; it is a far greater power.

— Gary Lawson and David B. Kopel in The Yale Law Journal Online 

We are fighting here over a constitutional metaphor—the regulation of idle citizens—and it's a fascinating conversation, to be sure. But having this discussion is not the same as interpreting constitutional law. Judges who are comfortable referencing Tea Party talking points and Fox News arguments hint at real changes in the role of the judiciary, and signal the possibility that the lines between law, politics, and the media may be blurred for good.

— Dahlia Lithwick in Slate


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Comments [9]

Antigone from Washington Heights, New York City

This current spate of sob stories, while terribly sad is a horrid display of people deprecating themselves before the whole world, showing their pain and grief, publicly, for the sake of a politician. How grievous for the Republicans to put these people through reliving their personal tragedies in public! Shame! Shame! Shame!

I sincerely hope the Dems don't do this! Look at this woman, Pam Finlayson weeping in public over loss of a child!

This is pure torture and an embarrassment for this American who thinks that those who inveigle others to go through hellish public pain for their own sake - politics as usual!

Aug. 30 2012 08:50 PM
Eleanor Bobo from new york

health care isn't unconstitutional. whoever said that is using that as an excuse not to give back to the people who need it. The truth is there are people who can't afford health insurance. Why deny them the chance to be protected? Just because they're poor? So they have to be punished for that? Not everyone is in the middle class or rich. And this nation isn't only existing on the values of the individual. It's BY the people and FOR the people. And once this happens, more will grow angry and protest. This will not go down well.

Mar. 28 2012 11:19 AM
Sheila from The Oranges

How about comparing manadatory health care insurance with mandatory Social Security/Medicare/Unemployment/Disability/Family Leave payments? A more appropriate comparison than broccoli!

Mar. 27 2012 06:49 PM
Brenda from New York City

I'm a little embarrassed to ask this, but here it goes. In all these conversations, why isn't the comparison to automotive insurance being used?

Mar. 27 2012 08:33 AM

Wow, thanks for these great resources and summaries. I would urge some more patient and wonky WNYC listerners to take a look at Oyez for more, including the briefs and arguments from the courts below.

As to Ms. Sale: you don't have a face for radio. :)

Mar. 26 2012 12:46 PM
Barrie Peterson from Valley Cottage NY

1. Justice Thomas should recuse as his wife has been publically allied with partisan groups attacking the health care reform law. The perception of fairness is essential, as Lawrence Lessig says in "Republic, Lost" focusing on the perverse influence of, in his analysis, money.
2. Since conservative think tanks came up with the individual mandate to handle the free rider problem and since Romney ably used it with MA liberals to effect it, there should be consensus, save but for recent far right hysteria. Further, for libertarians, it is not liberty or freedom to chose not to be insured (or refuse to wear a motorcycle helmet) since when disaster strikes, the rest of us will be helping pay....There is no economic "inactivity" here!
3. The law is a very incremental step, definitely not socialism ( as in UK
where medicine is a state-provided service) or even single-payer (as in Canada where the insurance industry has been curbed).

Mar. 26 2012 08:27 AM

The Supreme Court event will make for excellent theater, but will probably not provide much informative and educational value to the American public. Much of our law is not based on the Constitution, either explicitly or implicitly, so it will be interesting to see what the court decides to cite as its basis for or against the health care program or the particular issue concerning the individual mandidate. The question of what makes 'good policy' and serves the public interets will be another facet to look for in the rending of the ruling.

If only Congress had been slightly more inspired, they could have accomplished a better result with a better funding approach; and in the proces have avoided the individual mandidate debate. I think it's the classic mind-set problem where our leaders are just unable to solve problems except through the simple and unfocused len of politics.

Mar. 25 2012 05:10 PM

hi, I had a question. I am sure there might be many people who have this question. I am a single mom of two kids. I earn enough not to get govt. assistance (and I am happy about it)But I donot earn so so much I live actually pay check to pay check. My kids kids medicare (as they are US citizen by birth). But I am not US citizen (its on process). Long story short I donot have health insurance. I simply can't afford it. we live in NJ. and I simply doesn't have that much money every month as we are already paycheck to paycheck. I am a healthy person , but I would love to have health insurance just incase I something happens and I am ready to pay for it also .Can these politicians comeup with a solution for people like me. I can pay some money. I know insurance companies also have their own concerns. At the end of the day, they are not running non-profit org they are doing business and needs to earn profits. Why insurance companies like many other busineses, can't have long term contracts. I will happily sign long term contracts if insurance compay can give me cheaper monthly rate. This might have many risks for insurance caompanies. But no business comes without risk. In case of termination it can have big penalties. I am sure most probably there might be many people who would be ready to sign such contracts in return of affordable monthly rate, and good insurance (ie no deductable, no or very little copay, no coinsurance at all).

Mar. 22 2012 11:21 PM
Joe from the hood from brooklyn heights

One of the reasons i don't like the law... insurance companies can charge up to 3 times more premium without federal oversight. The average insurance policy costs 7000$, therefore being over 50, having multiple sclerosis, having a family history of cancer or heart disease, etc, jacks up your annual premium to 25000$. Just like the medicaid spend down prior to a nursing home, the high risk patient will first be bankrupted prior to being put on the federal dole. The insurance companies get to cherry pick the rich patients and leave the high cost patients for medicaid. Isn't this an abuse of the individual mandate?.... forcing you into bankruptcy?

Mar. 21 2012 04:44 PM

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