Candace Romano

Affordable Care Act goes to the U.S. Supreme Court

By - Mar 26th, 2012 04:00 am
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Just two years after the Patient Protection and Affordable Care Act was signed into law, it is being challenged in the U.S. Supreme Court.

The act, also known as Obamacare, was signed by the President on March 23, 2010. And today, justices will begin hearing arguments that challenge its constitutionality. At the crux of the challenge is whether the federal government can force Americans to buy health care coverage or face a penalty, said J. Gordon Hylton, a constitutional law expert at Marquette University Law School.

“The requirement that people have to buy health insurance – that’s the issue at least at the moment,” he said.

J. Gordon Hylton, Marquette University Law School

The Constitution, Hylton said, gives the federal government authority to regulate commerce, and the debate before the high court will center on how broadly commerce is interpreted, which could have wide-ranging implications for the country. Hylton said the questions will surround whether the Constitution allows for “volunteerism” or whether purchases can be mandated.

“How they will deal with this is still kind of an open question,” he said.

If Hylton were to predict an outcome, it would be that the court will remand the case to a lower court for additional fact-finding. “I have no great confidence in this, but what I think is the court is not going to decide the case this time,” he said. “The whole thing is sort of sitting in the lap of Justice Kennedy.”

Today’s court, he said, is viewed as having four liberal and four conservative justices, with Anthony Kennedy, a Ronald Reagan appointee, considered the swing vote. He could very well determine the fate of the law, at least the commerce clause, when a decision comes down, expectedly in June.

“This is particularly complicated because I understand Justice Kagen is going to recuse herself,” said Hylton.

Justice Elena Kagen is an Obama appointee.

“That raises the possibility of a deadlock,” Hylton said.

If that were to happen, he said, individual states would determine the fate of the law, which then “would be unconstitutional in some parts of the country and constitutional in other parts.”

“The worst thing that could happen is a 4-4 decision,” he said. “I think the whole constitutional law community is intrigued by how this will play itself out.”

The court could reject the insurance-purchase mandate or the law in its entirety, Hylton said. More likely, though, is that the justices will address the mandate. “I don’t think they are going to respond so broadly,” he said.

If the court merely deems the mandate as unconstitutional, he said, it could nonetheless unravel the law as passed.

“My understanding is the economic model that underlies the whole plan assumes the exchanges will be set up,” he said.

Under Obamacare, insurance exchange offering basic benefits would be set up to cover the ill and well, which would keep premiums downs. If the mandate requiring everyone to have insurance is removed from the law, Hylton said, funding Obamacare becomes iffy.

“Congress would have to come up with other ways to fund Obamacare,” he said, defeating the very spirit of the bill.

Meanwhile, the vice president of communications for the 16th Street Community Center said it’s unclear what the outcome would mean for their clients, 36 percent of whom are uninsured.

“The health care exchange would be a positive development for us,” said Ellyn McKenzie, adding, “I don’t think speculating on that sort of thing is useful.”

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