Editor’s note: During the Supreme Court’s March hearing of the Patient Protection and Affordable Care Act, Henry Aaron wrote daily blog posts detailing his thoughts on the court’s proceedings. Read Aaron’s posts on the first, second and third days of the hearing.
Watching the Supreme Court is not the same as watching a baseball game. But in both cases, a scorecard helps. So, here for those interested in making sense of what the Supreme Court says when it hands its decision on the Affordable Care Act is a scorecard of sorts. It lays out the options from which the Justices will choose in reaching their judgment.
|Issue||Options for the Court||Likely Outcomes|
|1a. Is the ACA penalty for failure to carry insurance a tax?
1b. If it is does the Tax Anti-Injunction Act bar jurisdiction?
|i. It isn’t a tax for purposes of the TAIA, skip to other issues.
ii. If it is a ‘tax,’ does the TAIA flatly bar jurisdiction? If so, plaintiffs cannot sue until they pay the ‘tax’–end of decision.
iii. If it is a tax and the government can waive its rights to bar suit under the TAIA, go to the other issues
|Both sides want a decision. Court unlikely to treat the TAIA as a bar.|
|2. Does the Constitution permit Congress to require people to buy health insurance?||2a. Yes, under the commerce clause
2b. Yes, under its power to tax
2c. No, under narrow reasoning
2d. No, under broad reasoning
|Likely, 2a or 2c|
|3. If the individual mandate is not allowed, should the rest of the bill stand?||3a. Yes, all other provisions should stand
3b. (The government’s position) Two other provisions should be tossed out—‘rate bands’ and mandatory issue; the rest should stand
3c. (Plaintiff’s position) The entire bill should be declared unconstitutional
|4. Is the Medicaid extension constitutional?||4a. Yes
4b. No, narrow reasoning
4c. No, broad reasoning
4b would be a shock;
4c would be revolutionary
Which of these options the Supreme Court chooses is obviously critical. So too is the language in which the Court couches its decision. For much of the twentieth century, the Court limited federal action to regulate business on the ground that freedom of contract was a sacred and sweeping right. That changed in the 1930s when the Court began to interpret the Congress’ constitutionally-based power to regulate interstate commerce in very broad terms. A broadly worded Court decision on the Affordable Care Act could signal limits on those powers that in the end could be even more important than the fate of the Affordable Care Act. Similarly, the federal government has used financial carrots and sticks to make the states instruments of national economic and social policy. A decision by the Supreme Court barring the extension of Medicaid coverage under the Affordable Care Act could signal limits on this federal power with ramifications far beyond the Affordable Care Act.
In brief, it is not just insurance companies, hospitals, the uninsured, and those whose taxes would be raised by the Affordable Care Act who have ‘dogs in this fight.’ Depending on how the Court decides the various cases involving this landmark legislation, the decision soon to be handed down could reshape not only health care policy, but also remake broad swathes of American constitutional law.