Posted by Mike Beene (NASE General Council) - Finally, after over two years of speculation on the Supreme Court reaction to the Affordable Care Act (ACA), we are in for another few months of prognostication as people try to read something into every nod, scowl and blink of each Justice. Only the expected summer ruling will slow this parade. Under the theory that the issues upon the Court requests argument mean something to their decision, let’s jump on the bandwagon, if only slightly.
First question: Does the Anti-Injunction Act prevent the court from hearing the case at this time?
The Anti-Injunction Act, which has been on the books since the 1800s, provides that a tax cannot be challenged until it is paid. This law was obviously enacted to protect the government’s tax revenue. So the first question is if the individual mandate, which requires all Americans to have Health Insurance or pay a fine, is a penalty or a tax. If it is a tax, the Anti-Injunction Act prevents any challenge to it until the fine has been paid (after 2014).
Both the challengers and defenders of the law agree at this time that the fine is not a tax. Nonetheless, the court appointed a lawyer to argue for application of the Anti-Injunction Act so that all issues would be well briefed. The questioning by the Court on Monday indicates that the Justices do not believe the Anti-Injunction Act applies in this matter. Thus, we should get a ruling on the merits and not a delay until after 2014.
Second question: Is the individual mandate that all citizens have Health Insurance or pay a fine constitutional or not?
Setting aside the tax issues just mentioned and assuming that the court reviews the case solely under the Commerce Clause, the arguments have become fairly straightforward. Those supporting the law say that the ACA is a logical extension of the Commerce Clause because health insurance is interstate commerce and all Americans will consume health care at some point. Thus, Congress is just regulating a system of interstate commerce that already exists, and all Americans are already involved in the health care market in some form or fashion or at least will be.
Opponents of the law argue that while Congress has been given broad authority to regulate interstate commerce, the ACA attempts to force a person to enter commerce by forcing the purchase of a product (health insurance) from a private source. Where is the authority of the federal government to force a person to buy a product? The states have police power and can probably mandate a purchase of certain products benefitting the general welfare, but the federal government has no such power, such was specifically rejected by the framers of the Constitution.
Tune in tomorrow for the second part of our series on the Supreme Court case!