11/30/2011 11:18 am ET Updated Jan 30, 2012

Legal Forecast: The Supreme Court Won't Strike Health Reform - Part I

The legal forecast for the Affordable Care Act -- "Obamacare" -- is partly sunny skies. While the Supreme Court recently accepted the Act for review, the Court is not expected to hurl lightning bolts striking down any part of the Act. (Of course, this is only a prediction; there are no guarantees.)

But, for both constitutional and pragmatic reasons, the Act appears more than capable of weathering the attacking storms.

Most of the Act Will Stand for Pragmatic Reasons

(Or, What Isn't Challenged Won't Be Thrown Out)

First, the Court chose to review only two parts of the law -- the individual mandate and the Medicaid expansion. It's worth noting that the vast majority of the law is not being reviewed.

As discussed previously -- in Health Care Reform Is Here! -- the Act contains many free-market incentives and reforms that nearly all Americans would agree are desirable. For example:

  • Incenting innovations in health care by paying for value and performance (i.e., positive outcomes) instead of "fee for service," which emphasizes quantity over quality
  • Developing measures of quality in health care based on medical evidence
  • Building America's health care workforce with a focus on primary care workers, whose services are often less costly
  • Creating transparency so consumers can better assess their health coverage options and the quality of their health care providers
  • Fostering flexibility in health coverage options by allowing the sale of insurance across state lines and development of consumer-owned insurance co-ops
  • Imposing tighter fraud, waste, and abuse controls in programs like Medicare and Medicaid

These are just a few of the positive reforms not before the Court. There are numerous others. To strike the entire Act would essentially "throw the baby out with the bathwater." Therefore, the forecast for the Act's survival is clear skies, if not for all of it, then for the greatest part.

The Individual Mandate Will Stand for Constitutional & Pragmatic Reasons Too

Despite dire predictions, the skies are not bleak for the much-discussed individual mandate that requires everyone to buy health insurance or pay a penalty.

Here's why: If the Court struck the mandate, the legal support for other unrelated federal laws (such as the federal drug laws and laws authorizing the continued detention of sexually dangerous prisoners) would be called into question as well.

Recently, the Court sustained these federal laws on the same legal grounds that support the individual mandate, so it would be a stretch to predict the Court would reverse course and undercut itself. Specifically:

  • The Commerce Clause: In 2005's Gonzales v. Raich, the Bush administration defended the federal drug laws against a challenge by marijuana growers and users who claimed California's state-wide legalization of medicinal marijuana should trump federal laws. The challengers argued the federal drug laws exceeded Congress' authority to regulate commerce, but the Court rejected this, holding that Congress has broad power under the Commerce Clause, including the power to regulate even "purely local activities" that, when considered cumulatively, "have a substantial effect on interstate commerce."
  • The Necessary & Proper Clause: In 2010's U.S. v. Comstock, the Obama administration defended federal laws authorizing the continued detention of federal prisoners who completed their sentences but were mentally deranged or sexually dangerous to others. Several prisoners challenged Congress' authority to hold them once they served their sentences, but the Court rejected this, reasoning that because Congress was empowered to imprison criminals, continuing the civil detention of deranged and sexually dangerous individuals was a "necessary and proper" extension of that power.

Both Raich and Comstock sustained the federal laws with solid majorities (greater than 5 out of 9 Justices including concurring Justices), which suggest that when considering health care reform, the Court will likely have another strong majority adhering to a traditionally broad interpretation of the "Commerce" and "Necessary and Proper" Clauses of the Constitution.

This is true even though the Supreme Court's makeup has changed somewhat since those cases were decided. In 2010, Justice Elena Kagan replaced John Paul Stevens on the bench, but she is not likely to read these Clauses any less broadly than her predecessor. As Solicitor General in the Obama Justice Department, she argued the "necessary and proper" defense of the federal laws before the Court in Comstock.

Despite the insistence of "Obamacare" opponents who argue Kagan should recuse herself because of her former role as Solicitor General (and similar calls on the other side for Justice Clarence Thomas's recusal due to his wife's vocal Tea Party involvement), neither Justice will likely recuse. Indeed, neither recused when the Court accepted review of "Obamacare": a good indication they won't recuse when the case is heard.

Opponents claim the "Commerce" and "Necessary and Proper" Clauses do not support the mandate because no commerce is involved in people not buying health insurance. But Congress has found that tens of thousands of Americans being uninsured impacts the entire market for health insurance. Even if some of the Justices disagree with this, the Court does not function as a "super" legislature, and will refrain from scrutinizing the correctness of legislative facts. It will not lightly usurp Congress' fact finding role, nor undermine the longstanding constitutional doctrine that favors broad powers of Congress to regulate national markets.

While it is true that Congress does not often penalize non-purchasers in a market, a majority of the Court will predictably adhere to this traditional constitutional principle articulated by Justice Scalia in Raich: "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective." "Every power" could easily include imposing a monetary penalty on those who do not buy insurance.

Finally, striking down the individual mandate would seriously undermine many other longstanding federal laws. Few people, and especially conservatives, could stomach a ruling that undercuts the validity of the federal drug laws (Raich), or laws detaining sexually dangerous felons (Comstock). Even fewer want to erode the civil rights laws or minimum wage and child labor laws, which have also been upheld by a broad reading of Congress' "commerce" and "necessary and proper" powers.

All this suggests that at worst, partly cloudy skies are ahead for the individual mandate. Even if a few Justices favor lightning, their preferences face the strong headwinds of judicial restraint.

Stay tuned, Part II of Legal Forecast will check the barometer on health reform's Medicaid expansion and the Anti-Injunction Act, which could bar the Court's review of "Obamacare" altogether.