July | August 2017




Health Care Reform: Four Questions, But No Answers Yet

By Debra Miller, CSG Director of Health Policy
and Jennifer Burnett, CSG Senior Researcher
You didn’t need to be in the nation’s capital this week to be consumed with the health care debate at the U.S. Supreme Court.
The Supreme Court held an almost unprecedented six hours of oral arguments over three days on the Affordable Care Act, the hallmark health reform legislation of President Barack Obama. The case, regardless of the outcome, will have a profound effect on this year’s presidential election. The impact of the court’s ruling on the federal-state balance of power in years to come, however, is more difficult to predict.
Almost immediately after the law was signed by the president, thirteen state attorneys general joined a single lawsuit challenging the new law against the U.S. departments of Health and Human Services, Treasury and Labor. Over the next two years, 13 more state attorneys general signed onto the lawsuit, arguing that Congress had overstepped its constitutionally limited power. Under the 10th Amendment, states are granted all powers not given to Congress, much like individuals have rights under the Constitution.
“Our Constitution appropriately limits the power of the federal government and reserves to the states and individual citizens those powers not specifically granted the central government,” said David Adkins, CEO and executive director of The Council of State Governments. “Throughout our nation’s history, states have asserted their proper place in our federal system by challenging actions of the federal government which the states believe encroach on their sovereignty.
“The states challenging the federal health insurance reforms present the Supreme Court with another case in which the line between federal and state authority can be established.”
The Supreme Court considered four questions with regard to the act:
If the court decides the 1867 Anti-Injunction Act—which prohibits courts from considering lawsuits that try to prevent a tax from taking effect—applies to the health care reform law, the case would be thrown out until the law takes effect. By all accounts, however, the justices’ questions seemed to indicate they are not inclined to use the 1867 law to delay ruling on the other issues under debate. Justice Stephen Breyer said Congress “did not use the word ‘tax’” in enacting the law.
At issue in the second question are the rights of individuals—what Justice Antonin Scalia likened to whether Congress can dictate that all citizens eat broccoli. Proponents of the law say it addresses a pressing national issue that is economic in nature and requires a national solution. Opponents say the congressional requirement to buy a product or service is unprecedented and to find the individual mandate constitutional would grant Congress essentially unlimited power to intrude on individual freedom.
The third question before the court concerned the “severability” of the individual mandate. If the court finds the individual mandate unconstitutional, can the Affordable Care Act stand without the mandate? Because both sides agree that all of the law must go if the individual mandate goes, the court hired an attorney to argue that other provisions of the Affordable Care Act can stand if the individual mandate is struck.
The fourth question was the one most critical to the future of the federal-state relationship. Twenty-six states challenged the law’s provision that expands Medicaid. The states say Congress did not tie the new eligibility requirement to the new federal money, but instead is coercing states to accept the new requirements by threatening loss of all Medicaid funding, which totals in the billions of dollars for all but the very smallest states. The administration argues that this expansion of Medicaid is no different than previous ones and that states are not required to participate in Medicaid, although all do.
Lisa Soronen, executive director of the State and Local Legal Center, told CSG that two of the questions facing the court address federalism head on. The State and Local Legal Center works to advance awareness of the significance of federalism issues in the courts.
“Whether the court considers the requirement to buy health insurance interstate commerce or the Medicaid expansion coercive will impact both legal doctrines in contexts well beyond the individual mandate and Medicaid,” she said.
The Supreme Court is expected to rule by late June or early July, just as the 2012 presidential campaign begins to swing into full action.


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