The Supreme Court Considers Health Care Reform: A Day-by-Day Guide

In 3 days of arguments, the Supreme Court wrestled with the constitutionality of various provisions of President Obama’s landmark health care reform law.

Just 2 years after President Obama signed health care reform into law, the Supreme Court set aside much of last week to hear arguments over whether certain of its provisions were in accord with the Constitution. Here is our guide to what was covered each day—and indications of how the justices will decide the case.

Monday: Can We Decide Yet?

The first day’s arguments were devoted to whether the Supreme Court can even consider the constitutionality of the reform law’s individual mandate, which requires that starting in 2014 most Americans must either carry health insurance or pay a penalty. The question essentially boiled down to whether this penalty qualifies as a tax, since an 1867 law disallows legal challenges to taxes until they are actually due, and the first penalties for failing to carry health insurance would not be due until April 2015.

The US Court of Appeals for the Fourth Circuit ruled last year that the 1867 law prevented it from ruling on the mandate’s constitutionality. Lawyers for both the Obama administration and opponents of the mandate, however, argued that the Supreme Court can decide the case now, and the justices seemed to agree.

Tuesday: Is the Individual Mandate Constitutional?

The central question of the case was argued on the second day: Can the federal government require individuals to either carry health insurance or pay a penalty? The Obama administration argued yes, on the basis of the Constitution’s commerce clause, which allows Congress to make laws regulating activity that affects interstate commerce. Those opposing the mandate countered that the commerce clause does not give the government authority to require people to purchase a product that they do not want, which would constitute regulating economic inactivity rather than activity.

Predicting Supreme Court decisions based on questions asked during oral argument is challenging, but these questions do provide hints to the justices’ thinking. On Tuesday, these hints were not promising for the Obama administration. Particularly notable was the attitude of Justice Anthony Kennedy, generally considered a swing vote on the court, who posed a series of skeptical questions to the Obama administration’s chief advocate, Solicitor General Donald Verrilli Jr.

“Can you create commerce in order to regulate it?” Kennedy asked Verrilli just minutes into his argument. Kennedy later suggested that the federal government faced a “heavy burden of justification” to demonstrate it was within its rights to impose the individual mandate and pushed Verrilli to define the limits of the government’s power under the commerce clause.

Justice Stephen Breyer, one of the court’s 4 liberal justices—who all appeared to support the mandate’s constitutionality—backed up the Obama administration’s argument that the commerce clause gives the government the power to require people to purchase health insurance. Since everyone will at some point require health care, one enters the health care market by being born, he pointed out, and the health care market is clearly part of interstate commerce. By this reasoning, requiring people to carry health insurance is a way of regulating how they participate in the health care market.

Historically, the Supreme Court has interpreted the commerce clause quite liberally, ruling that it gives Congress the right to impose limits on how much wheat can be grown on a small farm or to punish people for growing marijuana in their home. The only 2 recent exceptions include federal laws controlling guns near schools and allowing lawsuits regarding violence against women, both of which were struck down because the activity in question was local and noncommercial.

Wednesday Morning: If the Mandate Goes, What Else Goes With It?

Assuming the individual mandate were to be found unconstitutional, the court next grappled with the question of whether the rest of the health care reform law could stand without it. The US Court of Appeals for the Eleventh Circuit, which found the mandate unconstitutional last year, determined that the rest of the law could stand without it, but neither the Obama administration nor the law’s opponents agreed with this position.

Several of the court’s more liberal justices tended toward keeping most of the law intact. Justice Ruth Bader Ginsburg argued that in choosing between “a wrecking operation” and “a salvage job,” the latter was the more advisable route. Justice Sandra Sotomayor appeared to agree, suggesting that striking down the entire law would be too great an exercise of judicial power.

Justice Kennedy, by contrast, suggested that leaving in place requirements on insurance companies while striking down the individual mandate (which would have the effect of reducing business for insurance companies) would be unjust and not what Congress intended. A lawyer for the Obama administration agreed with this principle, arguing that if the mandate were to be struck down, then 2 specific restrictions on insurance companies would have to be done away with as well: a provision preventing insurance companies from turning down applicants and a provision preventing them from considering pre-existing conditions in applicants.

Justice Antonin Scalia, a conservative who expressed consistent opposition to the mandate and the health care reform law as a whole, suggested that if the individual mandate were found unconstitutional, the entire law should be struck down. “If you take the heart out of the statute,” he said, “the statute’s gone.”

Wednesday Afternoon: Can a Gift Be Coercive?

The final installment of arguments dealt with a challenge by 26 states to the health care reform law’s expansion of Medicaid, the joint federal-state program that provides health care to the poor and disabled. The challengers argued that states were being coerced into accepting the expansion because their refusal could put already existing funding in jeopardy.

The court’s more liberal justices expressed surprise at the states’ opposition to the expansion given that it will be paid for almost entirely by the federal government. Some of the court’s more conservative justices, however, were concerned that the federal government could or would threaten to revoke all Medicaid funding from states that did not accept the expansion. (A lawyer for the Obama administration would not commit one way or the other on whether the administration would proceed in this manner.)

How Will They Decide?

The fate of the health care reform bill is now in the hands of the 9 justices of the Supreme Court. They have until the end of the current term, in June, to render their decision. On the basis of the 3 days of arguments, they could decide to uphold the law entirely, strike it down entirely, or throw out some and keep the rest. The only certainty is that their decision will reverberate throughout the health care system, helping to set its course for the foreseeable future, and inspire strong reactions among the law’s supporters and critics across the country.