A Legal Guide To The Health Care Arguments

As the Supreme Court prepares to hear oral arguments over President Obama's health care overhaul this week, we take a look at the questions at stake each day.

Monday: Can the courts even rule on the constitutionality of the law right now?

Federal law bars individuals from challenging a tax in court before they pay it. The penalty for failure to have health insurance is levied on individual tax returns. But it does not kick in until 2015. So, since no one has paid the penalty yet, and no one has been hurt by it, the question is whether the court has jurisdiction to rule on it yet.

The Obama administration and the challengers agree that the court should proceed to rule on the whole law, so the justices have appointed a third lawyer, Robert Long, to argue the opposite view.

Tuesday: Can the government force you to buy health insurance?

The Affordable Care Act requires virtually all legal U.S. residents to have health insurance coverage by 2014. That means that if you are not covered by Medicare, Medicaid or employer-provided insurance, you have to purchase insurance yourself, and the law provides generous subsidies for people who need help.

This "individual mandate" aims at near universal coverage by spreading the risk among a lot more people. It is the key to paying for the things that everyone wants in the health bill — namely, a ban on discrimination based on previous medical conditions and a requirement that insurance companies generally charge people in the same age groups the same rates.

Dueling Rulings

Four federal appeals courts have ruled on parts of the new national health care law. In each instance, three-judge panels split 2-1 on their rulings. The case from the 11th Circuit is the one before the Supreme Court.

11th U.S. Circuit Court of Appeals

On Aug. 12, 2011, the 11th Circuit in Atlanta ruled that the individual mandate requiring citizens to buy health insurance is unconstitutional, exceeding congressional power to regulate interstate commerce. It also said an invalidated individual mandate could be "severed" from the rest of the health care law, leaving other provisions in place; classified the individual mandate as a penalty and not a tax; and said the law's unilateral expansion of the federal-state Medicaid partnership is permissible.

4th U.S. Circuit Court of Appeals

On Sept. 8, 2011, the 4th Circuit in Richmond, Va., called the individual mandate a "tax" that would not be ripe for legal review until 2015. The classification as a tax rather than a fine matters because the 19th-century Anti-Injunction Act says a tax can be challenged only after it has been paid and appealed. And under the law, an American with taxable income would first be required to have health insurance in 2014 and would pay the assessment on tax returns, presumably not before 2015.

6th U.S. Circuit Court of Appeals

On June 29, 2011, the 6th Circuit in Cincinnati upheld the individual mandate as constitutional under the Commerce Clause.

U.S. Circuit Court of Appeals for the District of Columbia Circuit

On Nov. 8, 2011, the D.C. Circuit in the nation's capital upheld the individual mandate as constitutional under the Commerce Clause.

— Greg Henderson

Those challenging the law contend that this is the first time the federal government has required people to buy a commercial product they may not want, and that the government simply doesn't have that much power. The government counters that health care is unique — everyone will consume it, the only question is when, and the mandate is a way to ensure that everyone pays his or her fair share.

Wednesday morning: If the mandate is struck down, do all the other provisions of the law fall? If not, which parts of it remain standing?

The concept of what might remain if the mandate is struck down is called "severability." Even the federal government concedes that the way the insurance business works, if everybody doesn't buy in, the insurance companies can't possibly afford to cover people with pre-existing health conditions at the same price as healthy people. So if the mandate is found to be unconstitutional, the pre-existing conditions provision would have to go, too.

The challengers agree and go farther. They claim that similarly every provision of the law must fall if the individual mandate is struck down.

Wednesday afternoon: Is Congress unconstitutionally twisting the arms of the states by requiring them to expand Medicaid?

The health care overhaul law calls for greatly expanding Medicaid, a health care program for low-income Americans currently funded jointly by the states and the federal government. Right now, only certain types of people qualify for Medicaid: low-income children, pregnant women and people with disabilities, for example. States are not required to participate in Medicaid, but all of them do; the federal government picks up at least half of the tab.

Under the health law, low-income people generally, not just specific groups like children, would be eligible for Medicaid. That would bring many more people into the program, but the federal government would pay all the costs related to this expansion for the first three years. States would only be liable for up to 10 percent of the costs by the end of the decade.That is far less than states generally have to pay for the rest of the program.

The catch is that the states can't opt out of just this part. It is take-it or leave- it; if they don't accept the expansion, they would have to forego all their Medicaid money from the federal government. The states contend that this is unconstitutional coercion. So far, no court has bought that argument.

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