Wednesday, March 28, the U. S. Supreme Court completed its three-day oral hearing of arguments on the constitutionality of the 2010 Affordable Care Act (“ACA”) that seeks to reform the way Americans will pay for their health care. The Court’s decision is expected to be released in June. The highly dramatic proceedings were divided as follows:

  • Monday, the court heard arguments on whether it had the power to determine constitutionality at this time. A 19th Century law called the Anti-Injunction Act precludes the court from deciding the constitutionality of a tax before it is paid. And the lawyers argued Monday about whether the penalties built into the ACA are indeed “taxes.” The consensus of those listening in on Monday was that the Anti-Injunction Act would not bar the court from proceeding. For a New York Times recap of the first day, see http://www.nytimes.com/2012/03/27/us/health-law-hearings-open-in-supreme-court.html?scp=5&sq=health%20care%20hearings&st=cse.
  • Tuesday, the Court focused on the constitutionality of the individual mandate. The ACA requires nearly everyone in the country to have health insurance. If an individual doesn’t have health insurance provided by her employer, she must either purchase it herself or pay a penalty, unless she falls into one of the exceptions outlined in the law. This provision was included in the law to make it actuarially sound, that is, so that there would be enough premium income to support all the medical claims that would result from mandates included in the law. Pundits are less prone to predict the court’s decision on this issue. For a New York Times recap of the second day, see http://www.nytimes.com/2012/03/28/us/hard-questions-from-conservative-justices-over-insurance-mandate.html?scp=24&sq=health%20care%20hearings&st=cse.
  • Wednesday, the court took up two issues: whether if it found that the ACA’s individual mandate or the Medicaid expansion were unconstitutional the remainder of the ACA could stand, or in other words, whether these controversial provisions could be “severed” from the law and (2) whether the ACA’s expansion of Medicaid, which was opposed by 26 states was unconstitutional. On the issue of severability, the discussion swayed in both directions, leaving the judicial tea-leaf readers somewhat perplexed. On the Medicaid argument, the court appeared skeptical that the states’ argument held water. For a NY Times recap of the third day, see http://www.nytimes.com/2012/03/29/us/justices-ask-if-health-law-is-viable-without-mandate.html?scp=1&sq=day%20of%20what%20ifs&st=cse.html

For further background on the court’s task, see the Kaiser Family Foundation in its report available at KFF report .

For questions or comments, please contact jwoehlke@mblbc.com.

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