Friday, June 15, 2012

Three possible surprise rulings on the Affordable Care Act

Supporters of the Affordable Care Act would regard a Supreme Court ruling that the individual mandate is unconstitutional as a chaos-inducing disaster; a strike-down of the entire law as a catastrophe; and an unconditional upholding as an unlikely consummation devoutly to be wished.  There are, however, more ambiguous possibilities -- each unlikely in itself, but taken together, representing a reasonable chance of not-entirely-awful surprise.  Here are three.

1. Kick the can.  The first question the justices considered in oral argument is whether the constitutionality of the mandate can be challenged before anyone is subject to the mandate, which won't happen until the exchanges open in 2014. The case that they cannot rests on the Anti-Injunction Act, which bars challenges to a tax until the tax has been assessed. Both the government and the plaintiffs argued that the Anti-Injunction Act does not apply in this case; the Court appointed an outside attorney (Richard Long) to argue that it does. The arguments were arcane -- a plain-English summary is available on Scotusblog --  and most observers did not think that the justices seemed to seriously entertain the notion that the AIA applies in this case.

But a punt remains a legally viable option if five justices can't coalesce in a coherent decision to strike all or part of the law. What if, say, two justices want to strike the whole thing, and three want to strike the mandate alone, or in some way reshape it (see below), and they can't agree on instructions to give Congress if they leave a law on the books while destroying or reshaping a part that affects the whole? Mightn't they decide to defer decision until the mandate (and the exchanges) are actually operating?

2. Limit the mandate.  As I have noted repeatedly, the emotional basis of the plaintiff's case is a claim that the mandate will force many Americans (mostly young, healthy) ones to buy more insurance than they need. Never mind that this argument is bogus -- several justices seemed to buy it, and voiced various aspects of it in oral argument.

Justice Kennedy cast the mandate as a troubling impingement on individual freedom while also acknowledging that "the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries" (March 27 oral argument, p. 104). It would seem, then, that Kennedy might be receptive to a 'minimally invasive' mandate.  Notwithstanding that 1) the ACA provides a purely catastrophic coverage option for adults under 30 and others who can show financial hardship or are otherwise exempt from the mandate, and 2) the cheapest plans offered to all in the insurance exchanges do offer coverage that can reasonably be called catastrophic, according to the Kaiser Family Foundation and other experts, it's conceivable that Kennedy could lead a decision that would limit the mandate to more purely catastrophic coverage for all.  Marty Lederman, former deputy assistant attorney general in the Obama administration's OLC, has raised this possibility.

3. Get creative. In his reply brief  to the plaintiffs' argument against the mandate, Solicitor General Donald Verrilli pointed out that no one questions the states' right to impose a mandate, e.g., no one has challenged the Massachusetts insurance reform law in court. Moreover, "States may opt out of the minimum coverage provision if they establish an alternative means of affordably providing comprehensive coverage to a comparable number of residents. 42 U.S.C.A. 18052 (reply brief, p. 12).  Further, Obama has proposed moving up the opt-out date from 2017 to 2014.  The justices could conceivably order that it be left up to the states whether to impose the mandate.

The key word here is "conceivably." I made that option up.  I honestly don't know the extent to which judicial decisions can or do mandate specific legislative changes. But I do think there's a chance that the justices will surprise us on the ACA ruling.

Update: a law professor who aided Georgia in its suit against the ACA reminds of a possible surprise on the other side: a finding that the ACA's mandate that states expand their Medicaid rolls may also be found unconstitutional.  

More on catastrophic coverage in the ACA and misrepresentation of the mandate in the Supreme Court

On the mandate more broadly
The individual mandate is a piece of Cake (4/25)
Verrilli's limiting principles (4/24)
If only Verrilli had said (A, B, C) (3/31)
Verrilli, slapped silly, recovers willy-nilly (3/28)
External links
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
Policy ignorance at the Supreme Court (Steve Benen, Maddow blog, 4/16)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2) 
Ragbatz on the catastrophic coverage options in the ACA - a healthcare attorney picks up the plaintiff's con in real time ( 3/28)


  1. Quick question: would or could option (2) also eliminate the contraceptive mandate, in effect killing 2 birds with stone?

    1. No. The contraceptive mandate is not objectionable under the same bogus conservative arguments as is the purchase mandate. A whole new set of bogus conservative arguments would have to be raised against it. But don't worry, this new generation of bogosity is already being developed in the legal laboratories at Heritage.

  2. The Scalia Court will kill the Affordable Care Act on a 5-4 vote. Scalia will write the majority opinion.

  3. "The Scalia Court will kill the Affordable Care Act on a 5-4 vote. Scalia will write the majority opinion."

    It's not the Scalia Court. If Justice Roberts is in the majority, he decides who writes the opinion, and he may very choose to write the opinion for such a historic case himself.

    More probable, in my opinion, is that Justice Kennedy will write the opinion if he were to be in the 5-4 majority, as a reward for voting with the majority and because... well because he's enamored with himself and would love to build on his legacy

  4. 2:14,

    If you think Tony Scalia's going to take orders from someone who on 39 separate occasions sought to curry his legal favor in the Supreme Court, then you don't know Tony Scalia.

    Seven Supreme Court justices were on hand when John Roberts was sworn in as paper chief justice. One justice was absent: Tony Scalia. Scalia treats Roberts as a subordinate in the same way that Cheney handled Dubya. To believe otherwise is to ignore the history of Tony Scalia.