What to Expect at Supreme Court on Obamacare This Week

This week, the Supreme Court will hear a case likely to shape our destiny as a nation when it considers whether parts of the Patient Protection and Affordable Care Act—called the ACA in legal circles and Obamacare to the rest of the country—are unconstitutional. 

The case, National Federation of Independent Business v. Sebelius, showcases an unprecedented coalition. Twenty-six states are suing the federal government over the constitutionality of a federal law, the first time a majority of the states of the Union have joined together to take the national government to court. These states are joined by the National Federation of Independent Business (NFIB), as well as several NFIB members who are self-insured business owners who object to purchasing insurance that they do not need. 

The justices will consider four issues in this historic case.The first is an esoteric debate on whether the Anti-Injunction Act (AIA) does not allow federal courts to decide the constitutionality of Obamacare’s individual mandate until 2015. The AIA does not apply to Obamacare, for several complex and arcane reasons that will make your eyes glaze over if you’re not a lawyer. But the Court wisely ordered the issue explored, thereby foreclosing any jurisdictional doubts that could cast a cloud of illegitimacy on what will be an extraordinarily consequential ruling. 

The second issue is the one everyone has heard about: Whether Section 1501 of the ACA—the individual mandate that requires every American to buy and maintain health insurance—exceeds Congress’s authority. The Obama administration claims Section 1501 is authorized by the Commerce Clause, the Taxing Clause, and the Necessary and Proper Clause of the Constitution. This issue could go either way, as at least three of the nine justices will likely vote to strike down the mandate, and probably four will vote to uphold it. Plausible arguments can be made for which way the remaining two justices will go, and Justice Anthony Kennedy is expected to be the swing vote on the issue. 

The third issue is whether the ACA’s expansion of Medicaid is unconstitutional. That issue alone makes this a major case, though most people haven’t heard of it because it’s been overshadowed in the media by the individual mandate. The question is whether the ACA’s massive expansion of Medicaid violates the 10th Amendment. Under the Spending Clause of the Constitution, Congress can attach conditions to states receiving federal funds. But the Court has always declared there’s a point at which financial inducements to persuade states crosses the line into coercing the states. Such coercion violates the 10th Amendment because the states are sovereign, co-equal in stature to the federal government, not subordinate agents or subdivisions. The Medicaid expansion imposes a crushing $50 billion cost on the states over a decade. If the Court doesn’t find that coercive of the states, then they’ll never find coercion in any future case. There might only be one or two votes to strike down the Medicaid expansion as coercive, but there is a slim chance the Court could get to five votes there as well. 

The final issue is whether the individual mandate can be severed from the rest of the ACA. If Section 1501 cannot be severed, then all 450 sections of the 2,700-page Obamacare statute will be struck down, eradicating President Obama’s entire signature law.  

Three teams of legal ninja masters are arguing these cases. Obama is being represented by Solicitor General Donald Verrilli. The 26 states are being represented by former Bush Solicitor General Paul Clement, a partner at Bancroft. And NFIB is being represented by Jones Day partners Mike Carvin, Greg Katsas, and Kevin Marshall—all Supreme Court heavyweights. Graduates of the nation’s best law schools, most all of these lawyers clerked for a justice on the Supreme Court, and have gone on as partners of top law firms where they’ve built reputations as the finest appellate lawyers in America. 

So those are the issues, the players, and the stakes, as Obamacare goes to the Supreme Court in the case of the century. 


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