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Analysis of Possible “Compromise” Supreme Court Decision on Healthcare

The constitutionality of the Patient Protection and Affordable Care Act (“Act”) will have enormous legal and political consequences. Several news outlets are projecting that the decision could be announced by the Supreme Court between June 11 and June 28. What are the possible legal decisions the Supreme Court can reach?

(1) Do nothing and find that the Act is constitutional.

(2) Do nothing by finding that the anti-injunction act precludes the Court from reaching the merits of the  Act’s constitutionality (thereby kicking the can down the road).

(3) Strike down the entire law as facially unconstitutional.

(4)  Strike down individual mandate and/or certain portions of the Act as unconstituional — but not the entire Act.

(5) Hold that the Act’s individual mandate and certain portions of the Act are unconstitutional as applied to a certain class of citizens, leaving the statute intact, but null and void when applied to certain people.

Items (3)-(5) are of particular interest and concern and merit further discussion.

In order for the Supreme Court to find a law facially unconstitutional, it must determine that the Act can in no way, shape, or form be constitutional in any context and is thus without force or effect in all aspects. This is an incredible power (Judicial Review) the Supreme Court possesses, which has its origins in Supreme Court decisions from Thomas Jefferson’s administration. Chief Justice Roberts’ does not favor facial challenges because his opinions illustrate a narrower construction of judicial authority.  Specifically, the Constitutional states that the judicial power of the U.S. only applies to cases and controversies. The Supreme Court, then, may only decide the cases which are actually in front of it; it cannot go beyond the question presented and begin striking down whatever it pleases. There is, furthermore, a large interest in judicial restraint inasmuch as the Court is and should be reluctant to overturn an entire piece of legislation. It would much rather make smaller decisions regarding a piece legislation’s effect on a petitioner/movant rather than confront the entire legislation. To give an example, say a city ratifies a uniform smoking ban. Assume, however, that the smoking ban is worded broadly and in some cases applies to private homes. A private homeowner sues to declare that the smoking ban’s applicability to him/her is invalid. The Court could agree and find that although the law is not facially unconstitutional, it cannot be applied to the homeowner in this specific context because it may impermissibly invade some constitutionally protected privacy interests.

Although this is not to say that the Supreme Court will never overturn an entire Act of the Congress, it certainly prefers not to do so. In this situation, however, given the breadth of the Act (and its 2,000-3,000) page length it does seem that it would be difficult to strike down the legislation in toto because some of its provisions may very well be constitutional. The practical problem arises that it may be unfeasible for the Court to go through the entire Act line by line and determine its constitutionality. Thus, while many are hoping for the entire law to be stricken, based on the foregoing, I do not think this is likely.

A more likely outcome would be for the Court to find that individual aspects of the Act are unconstitutional, and sever those invalid provisions away while leaving the rest untouched. Obviously, the central provision of the Act is the individual mandate which requires that citizens purchase health insurance, or else be subject to a fine/tax. In gauging the constitutionality of this provision, the Court will have to determine if this is something which goes beyond Congress’ Commerce Clause Power (“[Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes”). Based on case precedent, and how the oral arguments unfolded, it is a fair bet to project that the mandate is dubious at best — at least in the minds of many of the individual Justices. Additionally, the Court has had a renaissance of sorts to the extent that it has taken a more traditional, formalist, and historical approach to constitutional interpretation; as an example, the Court relied on the understanding and actions of James Madison to reach its decision in Hosanna-Tabor v. EEOC (which dealt with, among other things, whether a Church may be liable for employment discrimination  in firing one of its ministers). James Madison maintained that the Constitution created a limited government of “enumerated powers,” not an “indefinite one subject to particular exceptions.” Finding that the individual mandate is within Congress’ commerce power evinces the existence of the latter. More pertinently, authorizing Congress to compel individuals within a healthcare market place through for the purpose of regulation is likely unconstituional. There is, then, a tacit condition precedent of voluntariness to the commerce clause; only pre-existing commerce may be regulated; it would be nonsensical to allow the government to artificially create a commercial market to bring a particular aspect of society within the purview of the commerce clause.

But what about those people who have already purchased health insurance? Are they not already in the market?

Although many seem to be predicting that only the individual mandate and its accompanying provisions will be stricken by the Court, I think it is possible — if not likely — that the Court leaves the entire text of the Act in place. In so doing, however, it rules that the individual mandate is unconstitutional as applied to those individuals who are not in the health care market place. In other words, the law is not facially unconstitutional because it may be permissible against certain citizens who are already in the market place, but it is unconstituional as applied to persons who prove they could never purchase health insurance or are not in the health insurance market. As with all as-applied rulings, this would not disturb the text of the Act, but would be tantamount to a sort of judicial exception making. This narrow ruling would be consistent with the Roberts’ Court’s approach. How one would prove that they are not in the health insurance market or cannot be in the health insurance market is a difficult question, but one that is not within the Court’s jurisdiction to really decide.

Assuming that the Court makes a narrow as-applied ruling, what’s the effect? Although the text of the Act remains in place, one may argue that in reality it would pretty much gut its efficacy. Functionally, the individual mandate operates as a funding mechanism and the fulcrum upon which the Act swings. If there is a quasi-judicial exception to its applicability to certain types of people, then a large source of revenue may very well be lost; and there would be little doubt that many would be clamoring to fit within this exception. It may, then, be realistically equivalent to a facial striking of the text.

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