Last week, while hundreds of people gathered outside the Supreme Court to march, chant, debate and even play music, the justices heard arguments on the Affordable Care Act’s constitutionality. On Friday, the justices voted privately on the issues before them, however, the best answers the rest of us have are what we can read into the questions the justices asked publicly. In other news, a host of health care associations and organizations sent a letter to CMS Administrator Tavenner urging CMS to address the “onslaught of overlapping regulations that affect physicians.”
IN THE COURTS
After months of anticipation, thousands of pages of briefs, and three days of Supreme Court arguments, reporters, pundits and other interested parties are now trying to read answers into the questions the justices asked the lawyers last week. Many of these pundits took the justices’ questions to signal that the Court may split five to four, with the Court's five Republican appointees joining to overturn the individual mandate. Even Justice Kennedy, who is often considered to be a politically moderate member of Court, recognized that the law "changes the relationship of government to the individual in a very fundamental way."
On Monday (3/26), the Supreme Court heard arguments on whether the challenge to the requirement that most people in the United States buy health insurance by 2014 or pay a penalty must wait until that penalty is due and a refund is sought. Both the solicitor general and the attorney representing the states opposing the Affordable Care Act argued that the Anti-Injunction Act did not apply. In a tense moment during Monday’s arguments, Justice Alito said to Solicitor Verrilli, "Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"
On Tuesday (3/27), the justices heard the most anticipated argument of the week, whether Congress exceeded its constitutional power by requiring most people to buy insurance or pay a penalty. U.S. Solicitor General Donald Verrilli, for the Obama administration, argued that "all [the] minimum coverage provision does is say that, instead of requiring insurance at the point of sale ... Congress has the authority under the Commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market." Paul Clement, the attorney arguing for the 26 states opposing the individual mandate, argued that regulating "the economic decision to forgo the purchase of health insurance" is "a theory without any limiting principle."
On Wednesday (3/28), the Court considered whether, if the individual mandate is declared unconstitutional, it can be severed from the remainder of the Affordable Care Act so the remainder of the law can take effect as planned, and whether the law's provision that requires states to expand their Medicaid rolls is constitutional. With respect to Medicaid, the states argued that the federal government is making them an offer they cannot refuse, though they would like to. The states say they cannot afford to expand their Medicaid rolls, however, the only other option they are given is to leave the Medicaid program altogether. The Obama administration argued that the United States has the power to choose what strings to attach to the money it provides the states. Some of the Court's justices suggested they were willing to strike down the entire law, including its expansion of Medicaid.
With respect to severability, the states argued that if the individual mandate is unconstitutional, the rest of the Act cannot stand because these other provisions would not function in the way Congress imagined without the individual mandate. The Obama administration argued that as a matter of judicial restraint, limits on equitable remedial power limit the Court to addressing the provision that is challenged as unconstitutional.
On Friday (3/30), the Supreme Court justices voted on the issues that were argued Monday through Wednesday. The court is expected to rule on the case in June. In the meantime, many are wondering whether legislators will introduce alternative plans or wait until after the November elections and whether states, medical providers and insurance companies will continue to move forward with implementation
IN THE WHITE HOUSE
On Sunday (4/1) on “Face the Nation,” Vice President Biden predicted that the Supreme Court would not overturn the Affordable Care Act.
A number of reporters noted that President Obama avoided directly mentioning the Supreme Court arguments in his appearances this week, other than saying that he was pleased with Solicitor General Verrilli’s performance.
AT THE AGENCIES
This week, a large group of health care associations and organizations signed a letter to the acting CMS Administrator Marilyn Tavenner urging the agency to address the "onslaught of overlapping regulations that affect physicians," including penalties under the electronic prescribing program, the electronic health record Meaningful Use Incentive program, and the transition to ICD-10 (International Statistical Classification of Diseases and Related Health Problems, 10th Revision).
ON THE HILL
On Thursday (3/29), Sens. Lamar Alexander (R-Tenn.), Mike Johanns (R-Neb.), John Hoeven (R-N.D.) and Jim Risch (R-Idaho) wrote a piece in the Wall Street Journal, titled “ObamaCare Will Punish State Budgets.” In it, they discuss the heavy burdens the Affordable Care Act would impose on state and family budgets.
To view our compilation of recent health care reform implementation news, click here.