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Supreme Court’s decision will impact health care law
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The fate of the health care reform bill called the Patient Protection and Affordable Care Act that was signed into law by President Obama now rests with the nine justices of the United States Supreme Court. In the coming weeks, the Court will decide if the Patient Protection and Affordable Care Act reflects overreach by the legislative branch of government.
Passed by Congress in 2010, the Patient Protection and Affordable Care Act (PPACA) was designed to expand access to insurance to 30 million uninsured Americans, while increasing projected national medical spending and lowering projected Medicare spending. The PPACA was passed by the Senate in December 2009, and by the House of Representatives in 2010 along strict party lines, with not a single Republican vote in its favor.
The insurance industry is supportive of PPACA, saying that the law is necessary to prevent adverse selection by mandating that healthy individuals will buy insurance, thereby broadening the risk pool. Among the states, only Massachusetts has a similar law requiring the purchase of health care insurance. Passed in 2005, the Massachusetts program created subsidized insurance programs for the poor and lower income residents. The goal of the individual mandate in Massachusetts was to increase preventative care and decrease emergency room visits. Both goals have proven elusive thus far, and the impact on insurance premium rates is uncertain and controversial at best.
Challenging its constitutionality
Shortly after its passage, many states, organizations, and individual persons filed actions in federal courts challenging the constitutionality of some or all elements of PPACA. The most controversial element of PPACA is the health care insurance mandate that goes into effect in 2014. A health insurance mandate directed at the individual requires that person to obtain private health insurance instead of, or in addition to, a national health insurance plan, or pay a penalty. As of early 2012, federal courts were split on the constitutionality on this mandate, and the Supreme Court had taken up the case. During March 2012, the Supreme Court heard oral arguments from opposing counsel for 6 hours, and is expected to issue its decision by June 2012.
B. Sonny Bal
Lawrence H. Brenner
We examine here the historical competition between our federal legislative and judicial branches, and visit the classic Marbury v. Madison case, with the goal of enlightening readers on an interesting topic that will provoke debate in the media and among our fellow citizens. Most people correctly sense that the upcoming Supreme Court decision related to the constitutionality of PPACA, and specifically to the individual mandate to buy insurance will have a profound impact on how health care is delivered in the United States.
Jurisdiction
The Supreme Court is the highest court in the United States, with ultimate and discretionary appellate jurisdiction over matters that concern federal law. Those matters come before it by appeal from all federal courts (United States District Courts, and Federal Circuit Courts, for example), and from state courts whose decisions affect federal law. In contrast to appellate jurisdiction which refers to a court’s power to review another court’s decision, original jurisdiction of a court refers to its power to hear a case for the first time. Article III, Section 2 of the Constitution describes original jurisdiction of the Supreme Court. The original jurisdiction of the Supreme Court relates to cases affecting ambassadors, ministers and consuls, and also those controversies that are subject to federal judicial power because at least one state is a party to a dispute.
Article III of the Constitution is important since it establishes the judicial branch of the federal government, comprising the Supreme Court and lower courts as created by Congress. Section 1 of Article III explicitly requires one Supreme Court, but does not fix the number of Supreme Court justices. Note that the Supreme Court is the only federal court that is required explicitly by the Constitution. In terms of number of justices, Article I, Clause 6 refers to a “Chief Justice” when it states, “When the President of the United States is tried, the Chief Justice shall preside.” From this clause, the Constitution presupposes the existence of the Chief Justice, since nothing more is said regarding this office. The number of justices is fixed by statute. Today, for example, we have one Chief Justice and nine associate justices.
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From 1789 to 1866, the office of the Chief Justice was known as “Chief Justice of the Supreme Court.” In 1866, Congress changed the title of this office, after being so urged by the sixth Chief Justice, Salmon P. Chase, who wanted to emphasize that the Supreme Court was a co-equal branch of the government. Thus, according to 28 U.S.C. § 1, the proper title for the incumbent Chief Justice, John G. Roberts Jr. is “Chief Justice of the United States,” the highest judicial officer in the nation.
Congressional power
Congress may regulate the appellate jurisdiction of the Supreme Court, but not its original jurisdiction. Marbury v. Madison is a landmark case in U.S. law that formed the basis for judicial review by the Supreme Court in 1803. The decision helped define a boundary between the constitutionally separate executive and judicial branches of the federal government. That boundary still reflects a tension of sorts between the legislative and the judicial branches of the federal government.
While the mechanics of Marbury v. Madison are complex and best understood in the context of the prevailing politics of the Presidential election of 1800, the Supreme Court’s holding in the case is very significant. Essentially, the Supreme Court, under Chief Justice John Marshall struck down Section 13 of the Judiciary Act of 1789 as unconstitutional to the extent it purported to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution.
Chief Justice Marshall famously framed the matter as follows: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” In other words, the Supreme Court held that Congress cannot pass laws that are contrary to the Constitution, and it is the role of the judicial system to interpret what the Constitution permits.
Judicial review
The power of judicial review did not originate with Marbury v. Madison. Judicial review is the doctrine under which legislative and executive actions are subject to review and possible invalidation by the judiciary. The procedure and scope of such review varies from one society to another, depending on the system of government and related principles. The idea that courts can nullify legislative statues originated in England, in relation to a medical case.
In the 1610 legal opinion issued by Chief Justice Edward Coke of England in “Dr. Bonham’s Case,” a statute of Parliament enabled the London College of Physicians to levy fines against anyone violating their rules. The College levied such a fine against a doctor who was practicing without a license. Justice Coke found that this statutory power violated common right and reason. Later, the concept that courts could declare statutes void was defeated in England when King James II was removed in 1688 and Parliament declared itself supreme. But judicial review remained an influential concept in the American colonies, and this power became enshrined in many of our state constitutions.
While judicial power is not specifically authorized in the language of the Constitution, a number of courts had engaged in judicial review even before Marbury v. Madison was decided. Also, at the time of the Constitutional Convention, there were a number of references to judicial review and the majority of delegates were supportive of it. Some scholars have argued that in an earlier case dealing with federal taxes on carriages (Hylton v. United States, 1796), the Supreme Court had already engaged in judicial review, even though unlike Marbury, the Court upheld the relevant statute in Hylton.
Commerce Clause
At issue in the recent Supreme Court arguments over PPACA was the Commerce Clause, which is an enumerated power listed in the Constitution that gives Congress the power, “to regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.” Scholars have interpreted this language to specify three distinct powers granted to Congress; of these the Interstate Commerce Clause is the one being invoked in debates about the constitutionality of PPACA. An understanding of the interstate Commerce Clause is helpful in questioning whether the individual mandate provision of PPACA is within Congress’ power.
The Commerce Clause is understood by the related “Necessary and Proper Clause,” which states that Commerce Clause power and other enumerated powers are implemented by the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This Clause has also been called the Sweeping Clause and it provoked much controversy during discussion of the proposed Constitution. James Madison and Hamilton argued in Federalist No. 44 that without this Clause, the Constitution would be a “dead letter.” Patrick Henry took the opposing view that this Clause would lead to limitless federal power that would menace individual liberty. As most scholars accept, the Necessary and Proper Clause is the key that allows Congress to unlock and put into operation its enumerated powers that are captured in various other parts of the Constitution.
As a fundamental power delegated to Congress by the founders, the limits of the Interstate Commerce Clause have been the subject of intense debate in the past, and this subject continues to provoke controversy. The 16 words of the Commerce Clause have helped define the balance of power between the federal government and the states, and the balance of power between the elected branches of government and the judiciary. The Commerce Clause has a direct impact on the lives of citizens. Some noteworthy case law related to the implementation of this Clause is presented next.
Commerce Clause jurisprudence
In 1936, President Roosevelt and Congress were implementing the New Deal policies when the Supreme Court, in Carter v. Carter Coal Company struck down a key element of the New Deal’s regulation of the mining industry on the grounds that mining was not “commerce.” After the 1936 elections, President Roosevelt began an assault on what he regarded as the Supreme Court’s anti-democratic decisions. As background, in the previous decades, the Supreme Court had struck down many legislative decisions related to increasing societal welfare; among these were agriculture laws, minimum wage laws, child labor laws, and several elements of New Deal legislation.
A frustrated Roosevelt proposed increasing the number of justices to 15 to help expedite things, and while this “court-packing” scheme was ultimately abandoned, the event profoundly influenced the relationship between the three branches of our government. In the years that followed, Supreme Court decisions related to the Commerce Clause showed a tendency to defer to Congress in interpreting whether or not proposed legislation impacted interstate commerce. In other words, a chastised Supreme Court seemed to be wary of its previous watchdog role in examining legislative acts grounded in the Commerce Clause.
The tide took a turn in 1995, however, when after nearly 6 decades of leaving any restraint on the power of Congress over economic matters to political means only (i.e., the ballot box provides a means of redress), the Supreme Court’s ruling in United States v. Lopez denied the power of the Congress to use the Commerce Clause to justify regulation. In 2000, the United States v. Morrison case further clarified Lopez, when the Supreme Court invalidated a statute of the Violence Against Women Act (VAWA).
Both Lopez and Morrison dealt with Congress’s attempt to invoke the Commerce Clause to criminalize local criminal conduct using federal power invoked under the Commerce Clause. In Lopez, a 12-year old had brought a gun to school, and VAWA created federally mandated civil liability for the commission of a gender-based violent crime without any jurisdictional requirement of a connection to Interstate Commerce or commercial activity. This was simply too much for the Supreme Court to allow.
In 2005, the legal case of Gonzales v. Raich also delineated the outer limits of the Commerce Clause, although here, the Supreme Court supported Congress’ exercise of its interstate commerce power. Justices Antonin Scalia and Anthony Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a federal law regarding marijuana. Although the marijuana had been grown and consumed in one state, the Supreme Court held that Congress can regulate a non-economic good that is intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce. In its opinion, the Supreme Court explained the significance of the Commerce Clause by stating that “The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress ushered in a new era of federal regulation under the commerce power, beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”
Legal questions
Questions about the range and applicability of the Commerce Clause have arisen yet again – this time about the constitutionality of the PPACA. The debate centers on whether there exists constitutional justification for the individual mandate, which requires citizens to purchase health insurance by 2014 or face a monetary penalty imposed by the government.
In December 2010, U.S. District Court Judge Henry Hudson became the first judge to rule against PPACA, saying that the individual mandate provision exceeded Congress’ power under the Commerce Clause of the Constitution. Hudson’s opinion in Virginia v. Sebelius said, “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market . . . At its core, the dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate.”
In August 2011, the 11th Circuit Court of Appeals also ruled that the individual mandate portion of PPACA is unconstitutional, stating that Congress had exceeded its authority by requiring Americans to buy coverage.
Other courts have differed sharply from the above positions. In Liberty University v. Geithner, Judge Norman Moon upheld PPACA, countering that, “Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.”
What do you think about the following questions? Share your insights with us on www.OrthoMind.com:
- Health care consumption clearly crosses state lines, even at the individual level. PPACA gives the individual a choice between buying insurance vs. paying a penalty. The choice clearly has an impact on interstate commerce since patients can cross state lines. In Gonzales v. Raich, the Supreme Court allowed federal regulation of marijuana, even though the drug was grown and consumed in one state, since the regulation was part of a “complete scheme of legislation designed to regulate interstate commerce.” Can the government argue in favor of PPACA by citing that Medicare and Medicaid already represent a complete scheme of legislation designed to regulate interstate commerce?
- President Obama has suggested that the Supreme Court should uphold the will of people in a democracy, and that to do otherwise would be unconstitutional. Should the Supreme Court have the power of judicial review, even if that means overturning legislative acts that have the support of most of the people, assuming the majority of the public supports PPACA? Or should the people, through elected members of their Congress, have the ultimate power to decide how the country is run? Is one function of judicial review to keep a check on the “tyranny of the majority?”
- Assume you are one of the nine justices of the Supreme Court. Should the Supreme Court defer to the elected branches of government and uphold PPACA? Should it invalidate only the individual mandate as Congressional overreach in the Commerce Clause? Or should it sever only the penalty provision, thereby making purchase of insurance a desirable goal of the PPACA, albeit without the coercive element of a penalty?
For more information:
- B. Sonny Bal, MD, JD, MBA, is an associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California, and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.