Supreme Court and the Many Questions on Health Care Reform

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June 25, 2012; Source: CNN

It now appears that, on Thursday, the betting pools will be closed and the Supreme Court of the United States (SCOTUS) will reveal its decision on the Patient Protection and Affordable Care Act, a decision it probably reached weeks ago and has spent the interregnum drafting majority and dissenting opinions. We aren’t denizens of the Supreme Court building, lining up early in the morning for seats in order to witness, among other things, the perpetual silence of Clarence Thomas in oral argument (he never speaks). Nonetheless, when it comes to the Affordable Care Act (sometimes referred to as “Obamacare”), we think the Court will address the following big questions:

In Thomas More Law Center et al. v. Barack Hussein Obama, President of the United States et al., the question for the court is, “Does Congress have authority under the Commerce Clause to require private citizens to purchase and maintain ‘minimum essential’ healthcare insurance coverage under penalty of federal law?”

In National Federation of Independent Business, et al., v. Kathleen Sebelius, Secretary of Health and Human Services, et al., “The question presented is whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate [if the Court rules that the individual mandate] exceeds Congress’ limited and enumerated powers under the Constitution.”

Department of Health and Human Services, et al., v. Florida, et al. asks, “Whether the suit brought by [the opponents of ACA] to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act.”

Florida, et al. v. Department of Health and Human Services et al., adds, “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program?”{loadmodule mod_banners,Newswire Subscription Plea}

In addition to issues of states’ rights, Virginia, ex rel. Kenneth T. Cuccinelli, II, Attorney General of Virginia v. Kathleen Sebelius, Secretary of Health and Human Services asks, “Whether the PPACA mandate and penalty can be sustained as an exercise of the taxing power.”

Liberty University, et al. v. Timothy Geithner, Kathleen Sebelius, Hilda L. Solis, and Eric H. Holder, Jr. questions what not only individuals (as in Thomas More Law Center above) but employers are being asked to purchase: “Whether Congress exceeded its enumerated powers by enacting a novel and unprecedented law that forces private employers into the health insurance market and requires them to enter into third-party contracts to provide a comprehensive but vaguely defined health insurance product to their employees and extended beneficiaries.”

That’s the scorecard of some of the big questions in front of the Supreme Court with the health insurance reform legislation.

Among the many analyses offered in the wake of courtroom arguments (some of which we noted here and here), the mainstream press is following the legal machinations as though there are three choices: the legislation stands as is, the legislation gets nixed in its entirety, or only the individual mandate is knocked out. Our guess is that the Supremes could be a bit more nuanced in their decision, with implications specifically for nonprofit roles in health care, but also, if you really ponder the questions, about the latitudes and constraints of federal government action against big societal problems.

One thing we know. Whichever way the Supreme Court decides on the Affordable Care Act, nonprofits as employers, nonprofits as health and service providers, and nonprofits as advocates will be directly and deeply affected. –Rick Cohen