How the Supreme Court Might Save the Affordable Care Act

The US Supreme Court this week has heard one of the most important appeals to reach it in more than a decade. The nine justices heard six hours of oral arguments over three days concerning the constitutionality of the Affordable Care Act, giving more time to this case than any other in the last forty-five years. As they did so, the message wars heated up reached heights reminiscent of the original 2009 debate in Congress.  And there is some indication that the ruling of the Court could have huge implications for the 2012 election, given that health care reform is President Obama’s signature achievement.
Law professors and journalists around the country have now begun to speculate about the various ways the Court could rule on the four key arguments of the case: 1) the constitutionality of the individual mandate, 2) whether the mandate is a tax, 3) whether the individual mandate is severable from the act or whether the entire legislation must be struck down, and 4) the federal vs. state conflict over the expansion of the cooperative Medicaid program. Nonetheless, there are many who argue that we just don’t know what the Court will do until they make their ruling.
The Most Important Number is Five
Obama’s Affordable Care Act needs five votes on the Supreme Court for a victory, since neither Justice Clarence Thomas nor Justice Elena Kagan have recused themselves from the case. Given the ideological divide on the Court, with five conservative justices and four liberal justices, getting to that magic number of five is easier said than done.
It is widely believed that Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor will all reach the conclusion that the ACA is constitutional. Two justices, Clarence Thomas and Samuel Alito, based on their observed understanding of the Commerce Clause, will almost certainly vote that the ACA is unconstitutional. That leaves Justices Antonin Scalia, Anthony Kennedy, and John Roberts in play.
To make things even more complicated, because arguments were made on day three of the case regarding the severability of the individual mandate from the rest of the bill, it is possible that the justices could vote to uphold the parts of the law that are not considered, as some on the Court put it, “tied at the hip.” And because it may be considered highly unnecessary  to strike down the whole 1,700  page bill filled with all kinds of reauthorizations of old bills, funding schemes, regulations, etc., a ruling which strikes down the individual mandate without striking down the rest of the law is a plausible, and perhaps likely, outcome.
Obama Not on Good Terms with the Court
But if anything complicates the math the most, it is perhaps that President Obama is not on the best terms with some of the members of the Supreme Court. On day one, President Obama was embarrassed after he and Chief Justice Roberts misspoke the words of the presidential oath of office at his inauguration, which resulted in a repeat swearing in the next day. Then, some members of the Court, particularly Roberts and Alito, were not happy with the President’s attacks on the Citizen’s United ruling during his State of the Union Address two years ago. And to top it all off, then-Senator Obama actually voted against the nominations of Roberts and Alito. All of this is in addition to the fact that Obama is an ideological liberal and a majority of the Court is ideologically conservative.
Clearly, the five conservative justices of the Court do not owe Obama any favors. But that does not mean that the ACA has no hope of survival.
The Brief of the Federal Government
The Federal Government will be arguing before the Court that the ACA is a proper exercise of the commerce powers of Congress. These powers stem from Article 1, Section 8 of the Constitution which says that Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The crux of the argument made by Federal Government is that the law was enacted for the purpose of protecting those who do have insurance from the cost shifting that occurs when uninsured individuals get care. The government’s brief to the Court states, “As a class, the uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually. That cost shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”
The brief then quotes United States v. Darby (1941) saying that the Court has “many times held that the power of Congress to regulate interstate commerce extends to the regulation through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the Congressional power over it.”
In response to the argument that Congress does not have the authority to regulate the actions of individuals who have not entered the market for health care, the government cites Wickard v. Filburn (1942). In this case, the Supreme Court ruled that Congress had the power under the Commerce Clause to regulate how much wheat a man could harvest, even if that person was not selling their wheat in the marketplace. Furthermore, the argument being advanced is that even persons claiming to be outside of the marketplace can be regulated because of the aggregate effect they have on commerce.
This leads to the conclusion that Congress has the authority under the Commerce Clause to regulate the health insurance market such that it mandates health coverage for all individuals, for as it states in United States v. Wrightwood Dairy Co. (1942), where Congress has the authority to regulate interstate commerce, “it possesses every power needed to make that regulation effective.”
The Brief of the 26 States
Naturally, the twenty-six states that have taken this issue to Court have viewed the individual mandate of the ACA as a violation of the Constitution on two grounds both related to liberty.
The first has to do with the sovereignty of the states and issues of federalism. It is the contention of the states that the federalism structure exists such that there are two different governments that rule in different spheres. The idea is that this system of federalism protects the people and their liberty because it prevents the tyranny of any one government. Insomuch as the federal government is encroaching on the boundary of state authority, the federal government is also threatening the liberty of the American people.
The second claim of liberty relates to the following excerpt from the brief of the states to the Supreme Court: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.” The argument being made in this case by the states is that the federal government has no right to force individuals to buy goods or services in the marketplace, and that any such mandate is a violation of one’s liberty. The brief of the states goes on to say, “If Congress really had this remarkable authority, it would not have waited 220 years to exercise it.”
The conclusion that the states reach is that “The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse.  It is a revolution in the relationship between the central government and the governed.” Thus, unlike the federal government, which is trying to argue that such actions by Congress are normal and have been upheld by the Court in the past, the states are arguing that this is completely unprecedented and unrelated to the broad interpretations of the Commerce power in the Court’s past.
The Road to Five Justices
Given these arguments, the federal government will have the burden of convincing at least one of the conservative justices to vote with Breyer, Ginsburg, Sotomayor, and Kagan. To accomplish this goal, they have tailored their arguments in an attempt to convince Kennedy, Roberts, and Scalia.
Earning Kennedy’s Vote
Most legal scholars tend to agree that Justice Kennedy is the primary swing vote in this case, as in many other cases. In fact, in the past five terms, Kennedy has been in the majority in more than eighty percent of the Supreme Court’s five to four decisions, more so than any other justice. Indeed, it has been mentioned by some that they would have even put a picture of Justice Kennedy on the cover of the brief if they could.
Where they think they can get Kennedy is by reminding the Court of his prior statements on the Commerce power of Congress. For instance, in United States v. Lopez (1995), Kennedy stated in his concurring opinion that, “Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.” Clearly, the federal government will try to make the argument that the goal of the ACA is to build a stable national economy by regulating the market for health care.
Where they might lose Kennedy is on the issue of federalism, something that Kennedy is known to take very seriously. As Kennedy stated in Alden v. Maine (1999), “Congress must treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation.” Kennedy later argued in Bond v. United States (2011) that “State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
What we do know is that Justice Kennedy has not written many opinions for the Court as of late. There is some speculation that he may be holding out to write one of the most important opinions the Court will have in a while on the constitutionality of the ACA.
Earning Robert’s Vote
Another potential swing vote on the Court is that of Chief Justice Roberts. Some believe that Roberts may chose to vote with the liberal justices in this case so that he can write the opinion, particularly one that is narrow, leaving open the door to further cases to come before the Court challenging Congress’ commerce authority.
Another reason why it is believed that Roberts may vote to uphold the ACA is because he is particularly sensitive as the chief justice to the perception that the Court’s decisions are politically motivated and the toll that this has on the Court’s reputation. Surely, a five to four ruling along liberal and conservative lines will only reinforce the ideological divide and the idea that the members of the Court are making political, rather than constitutional, decisions.
Thomas Goldstein of scotusblog.com has also shed some light on this concern saying, “We’re in a little bit of a political death spiral for the Supreme Court, as ideologues on the left and the right attack justices with whom they disagree, maybe decreasing the public’s confidence in the Supreme Court.”
Finally, while Roberts has not had to make any commerce power decisions during his time on the Court, there is some evidence that he would support Congress’ commerce power claims given his vote in United States v. Comstock (2010) in which he voted to grant Congress authority not explicitly delegated to it in the Constitution.
Given these possibilities, however, it is unlikely that he would be the fifth vote to save health care reform if Kennedy decides with states.
Earning Scalia’s Vote
Of the three, Scalia is definitely the most difficult to convince, mainly because he defines himself as an originalist and often finds himself in agreement with Justice Clarence Thomas concerning the roles of federal government. Having said that, Scalia’s opinion in Gonzalez v. Raich (2005) has certainly given the federal government a chance at winning him over.
Specifically, Scalia wrote in Gonzalez that Congress may “regulate activities that substantially affect interstate commerce.” Scalia argued that “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market,” making it subject to federal regulation. Therefore, the brief of the federal government cleverly adopted his language stating, “Because of human susceptibility to disease and accident, we are all potentially never more than an instant from the ‘point of consumption’ of health care.”
In the end, while the Gonzalez case is mentioned ten times in the federal government’s brief, it is unclear whether Scalia will view these cases as substantially similar such that he will view his opinion in Gonzalez as binding on him in some way.
Invoking the Name of Judge Sutton
The final trick up the sleeve of the federal government is to invoke the name of Judge Jeffrey Sutton of the 6^th Circuit Court of Appeals. Judge Sutton may be a very well-known conservative judge, a possible candidate for the Supreme Court in the future, and a former clerk for Justice Scalia. But he also ruled in favor of upholding the individual mandate on constitutional grounds. It’s no wonder why the federal government’s brief mentions Sutton more than twenty times.
In fact, the brief argues that, “As Judge Sutton recognized, ‘[n]o one must pile “inference upon inference” (Lopez, 1995) to recognize that the national regulation of a $2.5 trillion industry, much of which is financed through health insurance…sold by national or regional insurance companies is economic in nature.” It then continues to cite United States v. Morrison (2000) saying that “‘Where,’ as is clearly the case here, such ‘economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.’”
In the end, it is clear that Judge Sutton’s decision could be the saving grace that makes at least one of the conservative justices more comfortable with making an otherwise uncomfortable decision affirming a broad understanding of Congress’ commerce power.
Conclusions