Weighing in the Accountability Care Act Decision
By Anthony DiWitt
Since 1981 when Congress implemented the Prospective Payment System for hospitals, and later, when that system was rolled out to skilled nursing facilities, health care costs have been a runaway train. Despite multiple attempts to rein in health care spending at the federal level, and reductions in the amounts of payments, the money paid to providers for medical care has continued to rise astronomically every year. When the Patient Protection and Affordable Care Act (PPACA) was passed, the U.S. was on a trajectory for a train crash!
For a long time I have argued in my blog that people who work in health care, even though they may hold generally right-wing ideals, should be happy for the PPACA because it provided a first start in bringing the runaway train of health care costs under control. Anything that increases the number of privately insured patients is good for anyone who provides health care in nearly any setting, including skilled nursing.
It has taken nearly 3 years to get the lawsuits challenging the statute into the Supreme Court, and it's taken since March for the Court to decide what to do with it. Today it issued its ruling and it struck dumb a bunch of the talking heads on TV because the Court did not do what everyone thought it would do - strike down the Act.
Why did everyone think that? Because they listened to the tone and tenor of the questions directed at the Solicitor General (who argued to preserve the Act) and the Attorneys General (who argued against the Act). But law students are told from Day One that they are never to read into a Court's questions what it might do on a particular case. Predicting the outcome of cases based on questions is about a 50% proposition, or no better than a coin flip.
The reason this is true is because the give and take between the judges on the bench and the lawyers on the floor is not always about convincing the judge asking the question. The judges have read and reviewed the briefs before the argument, and they've talked about the case. So when a judge asks a question at oral argument about an issue in the case he might be asking because he wants to know the answer, or he might be trying to sway another judge by getting the answer to the question. What listeners may see as throwing an anchor to a drowning man, may in fact be the judge throwing them a life buoy. Without knowing how the Court interprets the issues, you can't judge how the questions are important! That is why the news media was stunned by the constitutional interpretation advanced in the health care opinion.
If you haven't read the Supreme Court's opinion it boils down to this: Congress had the power to fund the individual mandate to buy health insurance through its taxing authority, and that makes the individual mandate constitutional. Even though a majority found it violated the Commerce Clause - something unexpected based on prior precedent - John Roberts and the liberal wing of the Court decided it passed muster as an exercise of Congress' taxing authority.
The Court's more conservative wing viewed the Commerce Clause question rather oddly. In a case from the 1930s the Court held that the Commerce Clause could reach the activity of a rancher who grew wheat for his own consumption because it affected interstate commerce. But in this case, the failure to buy insurance was viewed as a failure to enter the market. While Congress could regulate commerce, it could not compel a person to engage in it. This argument - the centerpiece of the state's attack on the statute - held the day. But it did not result in a win because Congress could regulate the mandate under the taxing authority.
When lay persons read the opinion they will first note the Court determined the mandate was not, in fact, a tax that barred the Court's consideration under the Anti-Injunction Act. It then later concluded that it was a valid exercise of Congressional authority under the taxing clause of the Constitution. Doubtless that will cause many to scratch their heads. How can it not be a tax for one purpose, but be a constitutional exercise of taxing power in another?
The answer, of course, is that it depends on how you look at it. The individual mandate imposes a penalty on those who don't buy health insurance, and that penalty is collected on April 15 with income taxes. For purposes of the Anti Injunction Act it was not a tax, it was a penalty that reflected a "shared responsibility payment." For the constitutional question, it was not a tax, but rather, a valid exercise of congressional power under the taxing provision because the only time the person had to pay the penalty was if they chose not to have health insurance. If you feel that's mincing words just a bit too fine, you're not alone. But the holding is what the holding is.
That the key swing vote was the Chief Justice is remarkable for one reason. Justice Roberts is said to worry about the place of the Supreme Court in history. By upholding the Act he ensured that the Court would not be viewed as a right wing results oriented Court. In doing so, he was very wise.
The elections in the fall will determine in large part whether the U.S. keeps or gets rid of health care legislation. The opinion of the Court is sure to energize the right, and be seen as a blessing to the left. But either way, the place of the Supreme Court in history is not affected. And that is good for the concept of justice and the Supreme Court as an institution.