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Supreme Court Hears Oral Arguments on Affordable Care Act

The United States Supreme Court heard oral arguments March 26–28, 2012 in the case of Florida v. HHS, the federal case that will decide whether—and how much of—the Patient Protection and Affordable Care Act (Affordable Care Act) will survive. The oral arguments are the last public step in the legal process that will likely culminate in a decision from the Supreme Court by the end of June.

Plaintiffs, who include 26 states and the National Federation of Independent Businesses (NFIB), argued to the Court that the Affordable Care Act's mandate that most Americans purchase health insurance or pay a penalty is unconstitutional and that the rest of the Act must be struck down along with the individual mandate. The United States argued that the mandate is a proper exercise of the federal government's power under the Commerce Clause of the United States Constitution. In addition to arguments over the individual mandate, the parties argued to the Court over: whether the Justices could hear the case now under the Anti-Injunction Act (AIA); what parts of the Affordable Care Act could be severed from the individual mandate if the mandate were held unconstitutional; and whether the Affordable Care Act's provisions for states' expansion of Medicaid eligibility is unconstitutional.

Constitutionality of the Individual Mandate
Most of the attention centered on the second day of oral arguments, in which the parties argued over whether the individual mandate was a proper exercise of the government's power to regulate commerce under Article 1 of the Constitution. The government argued that the individual mandate is constitutional under the Commerce Clause. United States Solicitor General Donald Verrilli stated that "health insurance has become the predominant means of paying for health care in this country[, but] for more than 40 million Americans who do not have access to health insurance either through their employer or through government programs such as Medicare or Medicaid, the system does not work." In response, Paul Clement, lead attorney for the petitioners, argued that the individual mandate "represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce."

Severability of the Individual Mandate
In the last day of argument, the Court heard both sides argue over whether, if the individual mandate is struck down, the rest of the Affordable Care Act should be permitted to stand or, alternatively, whether the Court must strike down some or all of the Affordable Care Act if the Court rules that the mandate is unconstitutional. Deputy Solicitor General Edwin Kneedler argued that, if the Court strikes down the individual mandate, only the community rating and guaranteed issue provisions of the Affordable Care Act should be struck down with it, calling these provisions "inseverable from the [individual mandate]." In reply, Mr. Clement argued that the entire Affordable Care Act must be stricken if the individual mandate is unconstitutional, telling the Court that "those provisions that have the constitutional difficulty are the very heart of this Act" and that what remained would be "a hollowed-out shell."

Medicaid Expansion
Also on the last day of argument, the Court heard petitioners and the government argue over whether the proposed expansion of Medicaid is unconstitutional. The plaintiffs argued that the Medicaid provision should be stricken because it impermissibly coerces the states in violation of the Tenth Amendment. In response, the government argued that the Medicaid provisions of the Affordable Care Act merely encourage voluntary compliance by the states.

Anti-Injunction Act
The first day of oral argument centered on whether the Supreme Court could hear a challenge to the law's constitutionality or whether, under the AIA, the plaintiffs had to wait until they pay the tax before challenging the law. The arguments centered around whether the fine for not buying health insurance is a penalty or a tax. Because the petitioners and the government both agreed that, for purposes of the AIA, the penalty was not a tax, the Court appointed separate counsel to argue that the AIA applied in this case.

Oral arguments before the Supreme Court often serve as a forum in which the Justices can press the parties to elaborate on their arguments, probe for strengths and weaknesses on either side, and confirm the Justices' understanding of each side's positions. Although much of the commentary centered around which side "won" and which side "lost," many commentators cautioned that, given the nature of oral arguments, it is often difficult to determine the ultimate position of any particular Justice from the questions posed in oral argument. However, most commentators agreed that, given the week's proceedings, the Court, rather than postpone a decision on the merits, is likely to render a definitive decision by the end of June.

More Information
The Supreme Court’s Affordable Care Act web page, which includes audio and transcripts of the oral arguments, is available at:

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