Leslie Gielow Jacobs

More Information

  • The Pacific McGeorge School of Law will host a public lecture and discussion on the ethical and legal challenges of the U.S. health care system.

    Leslie Jacobs, a professor at McGeorge, will give an overview of the constitutional challenge to the Affordable Care Act coming before the Supreme Court in March. T.R. Reid, a former Washington Post reporter and author of "The Healing of America," will be the keynote lecturer. Paul Paton, a McGeorge professor, will moderate the discussion.

    When: 6-8 p.m. Thursday

    Where: Pacific McGeorge School of Law, Lecture Hall 3200 Fifth Ave., Sacramento

    Admission: Free

    For more information: Go to go.mcgeorge.edu/ethicshealthcare

The Conversation: 'Tax' is crucial health care detail

Published: Sunday, Feb. 26, 2012 - 12:00 am | Page 1E

Should the U.S. Supreme Court uphold the Affordable Care Act, strike it down or delay the decision until after the November election?

To comment, please use our comments section at the end of the story or go our facebook page at www.facebook.com/sacramentobee.

Two years ago, a majority of both houses of Congress passed the Affordable Care Act. Before the ink was dry on the president's signature, opponents who lost in the political process went to court to file the first of more than two dozen lawsuits aimed at killing the new health care law.

Now its fate is up to the U.S. Supreme Court. The justices have scheduled a whopping 5 1/2 hours of oral argument to take place during the last week of March. (One hour of oral argument is the norm.) And in June, the nine justices, or at least a majority of them, will rule on the case.

The key question at the heart of all the legal challenges: Does the Constitution give Congress and the president the power to enact and enforce this new law?

The health care reform law is more than 1,000 pages long. But it's just one short section that is the target of most of the lawsuits. This part says that all Americans must purchase a minimum amount of health insurance if they do not already have it through an employer or government benefit, or pay a penalty with their taxes – up to $700.

The "minimum coverage" issue is what has received the most attention in court cases and the media. The second "penalty" part of the law, however, is the sleeper, which could flip the question from the power of Congress to the power of the Supreme Court. If the court finds that the so-called "penalty" is really a "tax," then the high court could hold that it has no power to decide the case at all, at least for now.

The "minimum coverage" issue centers on Congress' power to regulate commerce. No one disputes that Congress has this power. Putting the power to manage the national economy in one central government was a major reason for creating the U.S. Constitution, and its words give this power to Congress explicitly.

While Congress has the power to regulate the national economy, it does not have the power to pass laws that are aimed only at protecting health and safety, without a link to the economy. The Constitution reserves this power to the states. Nevertheless, Congress has the power to pass laws that do both of these things – regulate a part of the national economy and promote the health of citizens. For example, any product available for purchase in this country likely has been inspected, tested or labeled because of a valid law made by Congress.

In the health care law, Congress listed facts to prove that the reason it enacted the "minimum coverage" provision was not just to help people be healthy. It was to stabilize prices and ensure access to products and services that are bought and sold in the economy. One of these facts is that in our current economy, without a "minimum coverage" provision in place, those who are uninsured shift more than $40 billion in unpaid costs onto other consumers and taxpayers each year.

And the courts have agreed that Congress has the power to pass a health care reform law. The "minimum coverage" question does not relate to the end. It relates to the means.

Other ways of regulating health care are familiar, and would clearly be constitutional if used to expand access. Congress could lawfully have chosen to tax everyone and use the revenue to fund a national health insurance program as it does now with Medicare. Or Congress could have required that anyone who purchases health products or services must first buy insurance.

Congress chose the "minimum coverage" method to reach the health care access goal because it decided it was more politically viable and efficient. It chose a plan where private companies, rather than the government, provide the insurance, and where people have a lot of choice about which type of plan they get.

But Congress decided that the "minimum coverage" provision was essential to support the law's other key requirement – that private insurance companies expand coverage to people with pre-existing conditions or other potentially expensive health risks.

If healthy people could opt out of insurance, and gamble that they would be able to pay for health care when it happened, the law would not work. Private insurance companies could not afford to expand coverage. Rising health care costs due to bad debt from the uninsured who lost their gamble would still drag down the national economy.

So a majority of both houses of Congress thought it had the power to pass the "minimum coverage" provision. A number of courts and judges have agreed.

Why? When courts decide what the Constitution means, they look to its words, case law and principles that structure the whole thing.

Not only do the words of the Constitution give Congress the power to regulate commerce, they give it the power to use all "necessary and proper" means.

No previous court cases analyze the "minimum coverage" specifically. It's new in law. (It's actually not a new idea. Conservative think tanks floated it as part of market-based solutions to the rising costs of health care in the late 1980s.) But the U.S. Supreme Court has approved new ways of regulating commerce to meet new economic problems in other cases.

Then there is the structure of the Constitution, and its core principle of "will of the people" and "representative democracy." The Constitution gives the political branches – Congress and the president – the power to decide questions of policy. If voters like a law, they can say so at the ballot box. And if they don't like it, they can say that, too.

Courts upholding the "minimum coverage" provision have said that the choice of the means to regulate the national market in health care and insurance is a matter of policy, to be decided by the will of the people through their elected representatives.

Courts striking down the "minimum coverage" requirement have relied on principles of individual liberty and states' rights. These principles, the courts say, implicitly limit Congress' explicit powers to regulate commerce and choose necessary and proper means.

These courts have focused on the provision's timing – forcing a person to make a purchase rather than putting conditions on a purchase a person has decided to make. Although the Constitution does not say it, these courts have read past Supreme Court cases to say that Congress has the power to regulate commercial "activity," but not the "inactivity" of choosing to remain uninsured.

These courts have also noted that the powers the Constitution grants to Congress are limited, with some powers to make some kinds of laws left to states. These courts have reasoned that if Congress can require people to purchase insurance, it can do anything, like force people to buy broccoli because it's healthy. The Constitution cannot give Congress such broad power, these courts say.

So what will the U.S. Supreme Court decide? Sure, the court rulings have given the argument against the "minimum coverage" provision some credibility. Still, it's hard to find the five votes necessary to flat-out strike it down.

The words of the Constitution and its structure, and the court's other cases send – at best – mixed messages. Since the Great Depression, with few exceptions, the court has interpreted Congress' commerce power very broadly.

In our constitutional democracy, and especially months before a national election, striking down a major piece of legislation based on so little in the Constitution or case law would be a very, very aggressive thing to do.

That's not to say it won't happen. It is to say, however, that this result is unlikely. Especially because there is a way for some combination of five justices to avoid deciding the case entirely, at least until after the nation's voters have had their say.

The route to this result is complicated. And the parties to the cases do not want the court to rule this way. But the justices thought it was important enough to appoint a separate lawyer to brief and argue what the obscure "Anti-Injunction Act" means.

Put simply, this separate law passed by Congress in 1793 says that no court has the power to stop a "tax" until the government tries to collect it. Congress put the "penalty" for not obtaining minimum insurance coverage in the tax code. It is imposed like a tax and collected as tax.

Some judges have held that the minimum coverage penalty is not really a "tax" and so the law does not apply. But others have ruled the other way, writing persuasive opinions holding that Congress has taken away the courts' power to decide the extent of Congress' power to pass the minimum coverage provision, at least until someone is required to pay the penalty on their tax return – in 2015.

This would occur after the election. A decision based on this law would mean no decision at all on the "minimum coverage" issue, certainly for now and maybe forever, depending upon what happens in November. This way of (not) deciding a controversial constitutional question by finding that it lacks "jurisdiction" provides a very plausible exit route for the court from this highly politically charged case.

Stepping back from making the big decision would be less flashy. But that's exactly why this result may well attract the five votes it takes to decide the case. Often less is more when a case pits the unelected Supreme Court against Congress and the president. A majority of the justices may well see this case that way.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Leslie Gielow Jacobs



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