The Never-Ending Dispute

It isn’t over yet. With legal challenges from 26 states en route to the Supreme Court, the Patient Protection and Affordable Care Act (PPACA) remains a subject of political, legal, and constitutional dispute. The case may well prove important legal precedent. “This will be the most important Commerce Clause case since cases upholding the Civil Rights Act of 1964,” Harvard Law School professor Richard Fallon told the HPR. Even if the constitutionality of the law is upheld, as seems likely, health care reform will continue to impact the 2012 presidential campaign. Moreover, the legal challenges highlight the transformative nature of PPACA and raise larger questions about the powers of the federal government. Just as President Obama’s signature piece of legislation dominated the President’s first term, then, health care reform will continue to preoccupy America through 2012.
The Case of the Mandate
The major points of contention in the health care case center on the Constitution’s Interstate Commerce Clause, which grants Congress the power to regulate commerce between states. The Obama administration argues that PPACA is constitutional because health care is a complex interstate industry, and the provision, along with the Necessary and Proper Clause, grants Congress the power to oversee the industry. Supporters of PPACA point to broad readings of the commerce clause in prior cases, such as Gonzales v. Raich, in which the Supreme Court held that Congress can criminalize the growth and use of homegrown marijuana, even in areas where medical marijuana is legal.
 
The 26 states suing the government respond that Congress overstepped the limitations of the clause and point to the individual mandate as a distinguishing factor. Opponents of PPACA argue that the mandate regulates inactivity, rather than activity, and is thus unconstitutional. Virginia Attorney General Ken Cuccinelli told the HPR that the mandate proves plainly burdensome to individual liberty. “This is an unprecedented exercise of congressional power,” Cuccinelli contends. “A compulsion to buy a product under the commerce clause has never happened before. The offending circumstance is not doing something: just sitting on the couch!”
A Constitutional Conundrum
Over the past months, opponents of the mandate have gained ground. Ilya Shapiro of the Cato Institute characterizes the government’s taxation argument as “an end run around the Constitution.” Shapiro, who has filed amicus curiae briefs in support of the states, says that the conventional view that the challenges are “political sour grapes” has shifted, and the states’ arguments have come to be perceived as legitimate. For his part, Cuccinelli rejects the government’s fallback argument that the Act is supported by Congress’s powers of taxation, as the Court has held that there is a justiciable difference between a tax, which is broadly applied and designed to generate revenue, and a regulatory penalty, like the one the Act imposes on those who fail to purchase health insurance.
Nonetheless, legal action is unlikely to reverse PPACA. Fallon labels the states’ claims that the act invades the reserved powers of the states as “legally frivolous.” More broadly, Fallon acknowledges the unique nature of the individual mandate, but maintains that no prohibition prevents the government from regulating individual activity per se. Nonetheless, Fallon recognizes, the fate of PPACA may yet lie in the hands of one judge: Justice Anthony Kennedy.
Handicapping the Court
Speculation on the potential votes of the various justices runs the gamut. “I could imagine it being upheld by as large a margin of eight to one,” said Fallon, “but it could be as close as five to four to uphold, or it could go down five to four [overturning].” The eventual decision is difficult to predict because of the unique nature of the case, and because the backgrounds of the individual justices can prove misleading. Justice Kennedy, as usual, is the most difficult to predict. As such, Shapiro puts the chances of the court upholding the law at even odds, with Kennedy casting the deciding vote, though Fallon is more confident.
Yet the greatest impact of the various PPACA lawsuits may lie in policy. Henry Aaron of the Brookings Institution stresses that the uncertainty created by the legal challenges might retard implementation of the act. Aaron points to the fact that the various mandates of the law have proceeded rapidly in some states and slowly in others. This uncertainty and the obvious economic implications of PPACA may explain why Cuccinelli and others want the challenges resolved quickly. In the meantime, however, some state governors have suggested that they have no intention of rushing to implement a law that may be void in a year and have hesitated in setting up insurance exchanges.
Political Fallout and 2012
Yet even if the Court upholds the law by a five-four margin, the stench from the legal battle could linger into November. A five-four decision striking down the law would be damaging, although probably not debilitating, to Obama’s reelection campaign. Regardless, the fact that PPACA was cobbled together on a strictly partisan vote may prove a potent line of attack. As Aaron puts it, “there are a lot of fingerprints on the knife.” The Republicans continue to deride the verbosity of the law and are sure to seek to press the issue which so mobilizes the base. Regardless of how the legal challenges play out, however, Democrats will face close races in many districts in 2012, and a hotly contested ruling may make it difficult to avoid “refighting the battles of the last two years,” as President Obama often states. Republicans meanwhile must battle the conception that they are the party of “no” and convince independent voters that they have an alternative to PPACA. Front-runner Mitt Romney offers a model in his implementation of health care reform as the governor of Massachusetts; unfortunately, his plan stands virtually identical to that of PPACA.
While the Supreme Court will likely resolve the legality of the President’s health care plan through broad reading of the Commerce Clause, the issue of health care reform will play a large role in the 2012 elections and beyond. Whatever the outcome of the court cases, PPACA will continue to stir debates about the proper role of federalism and the powers of the federal government. In the political arena, then, Republicans will keep pressure on the Democrats both in the courts and in Congress. Whether the GOP can convince the nation that they possess viable alternatives to PPACA may well determine if the party can retake power next year.
Paul Schied ‘13 is the U.S. Blog Editor