Predicting the Court and Health Care

Ever since the 2010 passage of the Affordable Care Act (ACA; aka “Health Care Reform” or “Obamacare,” depending on the political slant of the discussant), partisans on both sides have wrangled about the constitutionality of the legislation.  Of particular interest for those who oppose the proposed policy is the individual mandate, which is a requirement that individuals must purchase health insurance as part of the implementation of health care reform.  Cogent arguments have been made on both sides. Those opposed to the reform argue that this requirement is an unconstitutional overreach of congressional power; those supporting the policy argue that the individual mandate is simply an exercise of Congress’ power to regulate interstate commerce.

That the constitutional status of the bill is far from clear is illustrated by the different outcomes of court challenges filed by individuals and states.  As of the end of August 2011, federal district and appeals courts have split on the constitutionality of the individual mandate, making it virtually certain that the Supreme Court will take up the issue in the very near future.

Speculation about what the Supreme Court’s decision will be regarding the individual mandate has been rampant.  The deep ideological division between the Court’s two factions has led to speculation about the likely behavior of Justice Kennedy, widely acknowledged to be the “swing justice.”  Interestingly, some speculation has also focused on Chief Justice Roberts based on his vote last year in US v. Comstock.  The Chief Justice joined Justice Breyer’s opinion in that case.  Justice Breyer’s opinion articulated a broad view of Congress’s power under the “necessary and proper” clause, one that has been described as “a step in the direction of interpreting the clause as a virtual blank check for Congress.”[1]  Just as surprising was the size and makeup of the Court’s seven member majority in the case, a majority that included not only the Chief Justice , but Justices Kennedy and Alito.  Although both Justices Kennedy and Alito wrote separate concurrences giving Justice Breyer’s opinion only five votes, the support for a broad view of congressional power has led some commentators to argue that the Court will vote to support the ACA.[2]

This discussion gives rise as to whether there are grounds to distinguish Comstock from health care policy such that, should the Court decide to strike the ACA as unconstitutional, the Court will be able to avoid the charge that its decisions are motivated solely by political and ideological, as opposed to judicial, considerations.

[1] Ilya Somin, “Taking Stock of Comstock: The Necessary and Proper Clause and the Limits of Federal Power,”, accessed 9/1/2011.


[2] James Vicini, “Obama Healthcare Law: Two Justices May Decide Fate,” accessed 9/1/2011; see also Orin Kerr, “Affordable Care Act predictions,” August 11, 2011,; accessed 8/30/2011.

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Filed under The Judiciary, The Legislature

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