The Supreme Court and Health Care Reform

Brendan Smialowski/AFP
Brendan Smialowski/AFP

On Monday the Supreme Court began hearing arguments in a lawsuit challenging the constitutionality of the health care reform law. The main argument is against the Affordable Care Act's individual mandate, which requires most Americans to buy health insurance by 2014 or pay a fine. Opponents say that Congress has no authority to enforce such a requirement.


On the first of three days of argument, the court's nine justices first grappled with the issue of the Anti-Injunction Act — a law that says the court cannot hand down a ruling at all until the legislation fully goes into effect in 2014. In an interview with The Root, Center for American Progress policy analyst Ian Millhiser, who specializes in the Constitution and the judiciary, gives his his take on what these swirling questions mean for the future of health care reform and why he thinks the case against it is a "frivolous" challenge.

The Root: If the Supreme Court rules in favor of the Anti-Injunction Act, does that in effect table this entire case until several years from now?

Ian Millhiser: Nothing's going to be decided until June, most likely. They're still going to hear all three days of the oral arguments that they've agreed to handle. The only question is, when they ultimately hand down the decision in late June, they can either decide on the constitutionality of the mandate now, or they could say that it has to wait a few years.

TR: Does the Constitution give Congress the authority to regulate an individual's decision to not buy health insurance? How is that not, as opponents argue, undue government intervention into people's personal decisions on their health?

IM: First of all, the government already requires you to buy health insurance. That's what Medicare is. The way that Medicare works is that the government takes your money in taxes and then uses those taxes to buy health insurance for you. So the only real question in this case is whether or not the federal government is allowed to cut out the middleman. On the question of whether or not the government can require you to buy things or face a fine, the answer is yes.

The Constitution says that Congress can regulate commerce. This law regulates one-sixth of our nation's economy. So I find the notion that a law regulating a sixth of the national economy is controversial to be, frankly, rather frivolous.


TR: If the notion is frivolous, why has it reached the Supreme Court? That alone seems to suggest that there are valid constitutional arguments against this law.

IM: I would not go that far. The most common reason the Supreme Court takes a case is because there is what's called a circuit split. There are two different Courts of Appeals that have ruled two different ways on the same question of law.


In this case, you have four Courts of Appeals that have weighed in. Three of them have upheld the law, and that includes some of the most conservative judges in the country — Judge Laurence Silberman, who won a presidential medal of freedom from George W. Bush, and Judge Jeffrey Sutton of the 6th Circuit, who is a very conservative former Scalia clerk.

With this split among the Courts of Appeals, I suspect that the main reason the Supreme Court justices took this case is to correct that one court's error.


TR: Will public opinion on the law play a role in the decision? With a Washington Post-ABC poll released this month showing that a majority of Americans want at least some part of the Affordable Care Act repealed, can opponents point to that as proof that citizens don't want the mandate?

IM: Polling is irrelevant to the Constitution. The Constitution does not change its meaning because one side or the other of a debate runs an effective PR campaign. I think it would be very frightening if it did.


But there is also a Kaiser Family Foundation tracking poll (pdf) from this month that shows how people respond to specific information about the Affordable Care Act. What that poll shows is that people are against the law that the law's opponents tell them Congress passed, which is just this requirement that people have to go out and buy health insurance for no good reason. When you explain to them that if you already have health insurance through your employer or through Medicare or Medicaid, then you automatically comply with the law, all of a sudden the law has two-thirds support.

If you explain to them that the reason we have the mandate is because without it the protections for people with pre-existing conditions don't work, you get a plurality of support. If you explain to people that the law has subsidies, so people understand that they're not going to be forced to buy health insurance that they cannot afford, then you get a plurality of support. So people oppose the law they think Congress passed, but they support the law that Congress actually passed.


TR: If the individual mandate falls, what would happen to the rest of the law?

IM: Most of the law would stay. The Supreme Court follows an incredibly strong presumption that they would keep in as much of the law as they can. What we would lose is the protections for people with pre-existing conditions.


If you have the protections for people with pre-existing conditions without the mandate, that would allow someone to not have health insurance until they get sick and then show up at an insurance company's door and say, "I haven't paid any premiums to you, but now I want you to pay for my health care." If people are allowed to do that, then the whole insurance market collapses. You just cannot have all of these essential protections for people who have pre-existing health conditions unless you also have the mandate.

Cynthia Gordy is The Root's Washington reporter.