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Monday, November 14, 2011

The Supreme Court’s Agenda On Health Care

The Supreme Court’s Agenda On Health Care

Analysis By SCOTUS Blog

By Dell Hill

In matters of law I’d like to think I have a slightly better working knowledge over the average citizen, but I’ve never even dreamed of being an expert.  Having worked in and around court houses for nearly 30 years tends to give one at least the feeling of having expanded knowledge.  When it comes to the matter of Constitutional Law, I depend on those who occupy a pay grade much higher than my own.  In this case, Lyle Denniston, who writes at Bloomber’s SCOTUS Blog.

The Court’s agenda on health care


The Supreme Court, using its very wide option to frame its own agenda, on Monday reopened one of American history’s most fevered constitutional debates, going back to the very architecture of the Constitution and the Founding era: how to divide up power between national and state governments.   The health care cases the Court promised to review involve nothing less than a choice between an ever-expanding social safety net, spreading out in federal law, and a multitude of more localized decisions by state government and the private economy.  It is, perhaps, no coincidence that this choice also appears likely to be the overriding issue in the presidential and congressional election campaign that starts formally two months from now, but is already underway in some preliminaries.

The Nation, in the coming months, thus will be exposed to two arenas of constitutional combat: the quiet, disciplined and even scholarly written and oral debate within the highest court, and the noisy, quite unruly and frequently emotional jousting within the political community.   There very well may be an intersection of the two — late next June, when the Court is expected to announce its judgment about the Affordable Care Act’s constitutionality.

That the Court had large constitutional issues foremost in mind was reflected in the fact that it picked carefully among the issues presented to it in five separate appeals, then selected only those that bore most directly upon governmental power — including its own authority to finally resolve this dispute between the national and state governments.

What Congress intended in this new law was a fundamental alteration of the way America pays for health care, and a marked expansion of eligibility for insurance so that one does not have to pay medical bills out of pocket, or have them covered by someone else’s charity.   The core issue the Justices will decide is whether Congress had authority to do that, under three clauses in the Constitution’s Article I: the Commerce Clause, the General Welfare Clause, and the Spending Power Clause.
Congress’s power under the first two of those Clauses, perhaps supplemented by the Necessary and Proper Clause, are raised in the questions the Court agreed to decide about the health care law’s most crucial provision: a mandate that virtually every American must obtain health insurance by the year 2014, or pay a financial penalty along with their federal tax return.  This so-called “minimum coverage” provision, broadly attacked in nearly 30 lawsuits as an extravagant federal intrusion into private choice, is the financial foundation of much if not all of the new law’s pragmatic workability.

If the insurance mandate and its attached penalty are nullified by the Court, the Justices would then be faced with the next most important question they granted: is the mandate so vital to the rest of the law that none of it — or some parts of it, at least — cannot survive constitutionally?   That will require the Justices to examine the very difficult question of whether Congress would have wanted some of the law, if it couldn’t have the mandate.   Even the government has said that, if the mandate falls, so do the requirement that insurance companies provide coverage to all comers, not turning away any who come with preexisting medical conditions, and the requirement that insurers provide the nearly universal coverage guaranteed without significantly raising insurance premiums.”

I encourage you to read the entire piece by clicking right here.

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