al Does the Commerce Clause Authorise Congress to Require Individuals to Buy Health Insurance? Proponents argue that the individual mandate is essential to regulation of healthcare, that Congress can surely regulate healthcare, and that the decision to forego health insurance is an economic activity that impacts interstate commerce by shifting costs to others. Except for arguing that health care is “unique,” the Obama administration has been unable to give the Court a limiting principle for this potentially broad expansion of Congressional authority. Opponents to the individual mandates argue that the non-purchase of insurance is not “commerce,” the mandate does not regulate commerce, and acceptance of the administration’s would permit Congress to “bootstrap” virtually any legislation as impacting commerce. If the Individual Mandate Is Unconstitutional, Can It Be Severed from PPACA, or Is All of PPACA Void? If the Supreme Court strikes down the individual mandate, the Court must decide where to draw the line between the parts of PPACA that must fall with the individual mandate, and the parts that can be severed and stand independently. The administration has argued that the individual mandate is absolutely necessary for PPACA’s insurance market reforms to work as intended. The federal government concedes that “guaranteed issue” and “community rating” portions of PPACA should be invalidated if the individual mandate is found unconstitutional, but argues that other portions of PPACA are unrelated to the individual mandate and should survive. Opponents argue that Congress deliberately removed a severability clause from an early version of PPACA, that the individual mandate is the very heart of PPACA, and that PPACA’s complexity and sweeping reordering of health care mitigate
against picking the parts of PPACA that should survive. Better to strike down all of PPACA and let Congress rewrite the law, say the 26 states. Does PPACA Violate the Constitution by Threatening Loss of Medicaid Funding for States that Fail to Expand Medicaid? Many were surprised that the Supreme Court took up this question and devoted extensive time to argument on the issue. Opponents argue that Congress abuses its spending power authority by threatening a cut off of all Medicaid funds in light of the size of the current Medicaid program and the great expansion of that program under PPACA. What are the Odds the Supreme Court will uphold PPACA? One week before the PPACA arguments, the conservative Supreme Court majority (Chief Justice Roberts, and Justices, Kennedy, Thomas, Alito, and Scalia) held that Congress exceeded its authority by authorising awards of damages against the states for violations of the Family Medical Leave Act. Justice Kennedy wrote the majority opinion, emphasising the importance of protecting “a State’s fiscal integrity from federal intrusion.” The case indicates the Justices’ thinking on issues of federalism and congressional authority that underlie the constitutional challenges to PPACA. Based on their reaction to the oral arguments over PPACA and decisions in other cases, the liberal justices on the Court (Ginsberg, Breyer, Kagan, and Sotomeyor) have an expansive view of Congressional authority under Commerce Clause and will likely support the constitutionality of PPACA.
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