HEALTH CARE

The Health Care Case’s Legal Maze

FILE - In this Jan. 25, 2012 file photo, the U.S. Supreme Court Building is seen in Washington. The health insurance industry is spending millions to carry out President Barack Obama's health care overhaul, essentially betting that the law or major parts of it will survive Supreme Court scrutiny. (AP Photo/J. Scott Applewhite, File)  
National Journal
Margot Sanger-Katz
March 25, 2012, 8:44 a.m.

When the Su­preme Court hears ar­gu­ments Monday in the big health care cases, it will be con­sid­er­ing much more than a simple yes-or-no ques­tion about wheth­er the 2010 health care re­form law is con­sti­tu­tion­al. That might be hard to de­term­ine from the pub­lic dis­cus­sion, which has fo­cused on the case’s core ques­tion””wheth­er the in­di­vidu­al man­date to buy in­sur­ance ex­ceeds Con­gress’s power. Polls show that a small ma­jor­ity of Amer­ic­ans simply be­lieve that the Court will over­turn the law.

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But the health care case is com­plic­ated, and the Court is con­sid­er­ing a series of leg­al ques­tions with in­ter­re­lated an­swers. It could up­hold or strike down the law, but it could also throw the suit out or per­form sur­gery on health care re­form. Here are a few of the pos­sible out­comes:

  •      The Court says come back in three years. Monday’s ar­gu­ment will be about a tech­nic­al stat­utory ques­tion that could have a huge im­pact on the dir­ec­tion of the case””wheth­er a 19th-cen­tury tax law means the Court has no jur­is­dic­tion to con­sider chal­lenges to the man­date this year. Court watch­ers say the odds of such a de­cision are slim but not im­possible. The ques­tion is leg­ally close, and the justices may be temp­ted to avoid the bad op­tics of a big polit­ic­al opin­ion in the midst of the pres­id­en­tial elec­tion. “The Court might think, you know, it might be bet­ter not to de­cide it in the middle of a pres­id­en­tial elec­tion,” former So­li­cit­or Gen­er­al and O’Melveny & My­ers part­ner Wal­ter Del­linger said at a brief­ing this week.
  •      The Court up­holds everything. Des­pite all the de­bate, protest, and the pub­lic’s am­bi­val­ence about the health care law, a ma­jor­ity of Court ex­perts think that this out­come is likely. A re­cent Amer­ic­an Bar As­so­ci­ation poll of “a se­lect group of aca­dem­ics, journ­al­ists, and law­yers who reg­u­larly fol­low and/or com­ment on the Su­preme Court,” pre­dicted wins for the gov­ern­ment on both key con­sti­tu­tion­al ques­tions. There are four re­li­able votes for the gov­ern­ment (the Demo­crat­ic ap­pointees), one pre­dict­able vote against (Clar­ence Thomas), and four justices who, to vary­ing de­grees, are in play.
  •       The Court ab­ol­ishes the man­date, but just the man­date. If the Court finds the in­di­vidu­al man­date un­con­sti­tu­tion­al, it then has to de­cide what hap­pens to the rest of the law. That ar­gu­ment hap­pens on Wed­nes­day. The health care law lacks a sev­er­ab­il­ity clause, a com­mon le­gis­lat­ive tack-on that says what parts of the law can be di­vided from the rest if the courts identi­fy a prob­lem. None of the parties wants the Court to sever just the man­date””the chal­lengers want the whole law ab­ol­ished, and the gov­ern­ment says such a res­ult could wreak hav­oc on the in­sur­ance mar­kets. 
  •       Bye-bye, health care re­form. The Su­preme Court is usu­ally not en­thu­si­ast­ic about mak­ing de­cisions that amount to re­writ­ing le­gis­la­tion. That is one reas­on the justices could de­cide that the man­date was such a key piece of the law that, without it, health care re­form would nev­er have passed. “I don’t think they’ll split the baby,” said Todd Gazi­ano, the dir­ect­or of the leg­al cen­ter at the Her­it­age Found­a­tion, and an op­pon­ent of the law. Of course, the health care re­form law con­tains much more than just the man­date and sub­sidies for the un­in­sured. It cre­ated Medi­care pay­ment re­forms; it in­cludes fund­ing for the Chil­dren’s Health In­sur­ance Pro­gram; it re­quires in­surers to cov­er adult chil­dren up to age 26 on fam­ily policies; it re­quires res­taur­ants to put cal­or­ie counts on their menus; and large em­ploy­ers to provide places for wo­men to ex­press breast milk. A de­cision strik­ing down the whole law would be a big vic­tory for the law’s op­pon­ents. But it would leave Con­gress and the De­part­ment of Health and Hu­man Ser­vices with sev­er­al messes to fix, and fast. “I think it would be a tre­mend­ous dis­rup­tion in the op­er­a­tion of our health care sys­tem,” said Timothy Jost, a law pro­fess­or at Wash­ing­ton and Lee Uni­versity who sup­ports the law.
  •     Out go the in­sur­ance re­forms. The gov­ern­ment is ar­guing that the man­date is needed to make oth­er in­sur­ance re­forms in the law work””the re­quire­ment that in­surers take all comers and the lim­it­a­tions on how much they can vary prices ac­cord­ing to age. The Court could ex­cise those pro­vi­sions with the man­date. The Court could also slice and dice the law in any num­ber of oth­er ways. Every in­terest group ima­gin­able has filed a friend-of-the-court brief sug­gest­ing what pro­vi­sions should be cut or saved. It would not be fun to be a law clerk as­signed to this ques­tion.
  •      No more Medi­caid ex­pan­sion. The man­date has been get­ting all the at­ten­tion, but the Court is also con­sid­er­ing an­oth­er hot con­sti­tu­tion­al ques­tion: Does the law’s ex­pan­sion of state Medi­caid pro­grams in­ap­pro­pri­ately use Con­gress’s spend­ing power to co­erce the states? No fed­er­al court has ever struck down a law on this basis, and ex­perts across the polit­ic­al spec­trum think a win for the chal­lengers on this ques­tion is very un­likely. But the Court’s an­swer could have very big re­per­cus­sions out­side of the health care sphere. Con­gress has grown very fond of us­ing the car­rot of fed­er­al fund­ing to com­pel all sorts of state ac­tion, in areas as broad as edu­ca­tion­al policy, civil-rights en­force­ment, and the drink­ing age. And even a de­cision up­hold­ing the law could in­clude some guidelines that would sig­nal the Court will lim­it Con­gress’s powers in the fu­ture. “I think this is one where the chal­lengers can win by los­ing,” said Kev­in Walsh, an as­so­ci­ate law pro­fess­or at the Uni­versity of Rich­mond former Ant­on­in Scalia clerk.
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