Forum Center, 4/3/12

Constitutionality of Obamacare to be Decided by the Supreme Court

During three days of oral hearings, the U.S. Supreme Court listened to arguments over the constitutionality of the Patient Protection and Affordable Care Act (PPACA) otherwise known as Obamacare. The legislation, which is being challenged by 26 states, is the centerpiece of President Obama’s health-care reform law. Those states that have challenged the law are arguing that it is both unconstitutional and that the legislation poses a threat to their own state budgets.

After arguments on Tuesday, Obamacare appeared to be in some peril as the justices debated with the attorneys over the constitutionality of the law. During the dramatic second day of hearings, the justices focused on the constitutionality of the individual mandate, which is that part of the legislation that requires all Americans to purchase health insurance or pay a penalty. Reduced to its simplest terms, the question of constitutionality seems to hinge on whether the federal government can require individuals to buy health insurance under the authority granted to Congress under the Commerce Power of the Constitution.

Based on comments and questions posed during the two-hour session, the nine-member high court seems to be sharply divided on whether Congress has the authority under the Constitution’s Commerce Clause to order every American to buy a government-approved level of health insurance or pay a penalty. Although the session was dominated by skeptical questioning from the Court’s conservative members, the Court’s four liberals made it clear that they believed that the legislation satisfied the requirements for regulation under the Commerce Clause.

The key to the decision might come down once again to Justice Kennedy, who has frequently been a swing vote on the court. He expressed significant concerns about the mandate: “Can you create commerce in order to regulate it?” Justice Kennedy asked Solicitor General Donald Verrilli soon after he began his argument.  “That is not what is going on here,” replied the solicitor general. “What is being regulated is the method of financing the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. Here Congress is regulating existing commerce [referring to the national health-care market].”

There were several indications that the government may have a tough standard to meet in justifying its position. Justice Kennedy, through his questions, expressed that he believed that the government has a “heavy burden” to show that what it is doing is constitutional when it compels people to enter into commerce. While he also expressed some concern about the challengers’ arguments, his most telling concern seemed to be with the scope of the government’s position.  At two different times, Justice Kennedy stated that the government’s theory would “fundamentally change the relationship between the individual and the state.” Kennedy seemed to agree with Verrilli when he observed that “young uninsured individuals hold the power to affect health insurance rates and the costs of providing medical care in a way that doesn’t apply in other industries.”

Forum Question of the Week:

Is the “individual mandate” provision of the Patient Protection and Affordable Care Act, otherwise known as Obamacare, which requires all Americans to purchase health insurance or pay a penalty, constitutional under the Commerce clause? How do you predict the outcome of this landmark case?

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