03/29/2012 11:21 am ET Updated May 29, 2012

Why the Supreme Court Cannot Afford to Find the Health Law Unconstitutional

This blog will be as brief as it can be, even after listening and digesting over six hours of oral arguments on the four issues argued March 26-28 on the Patient Protection and Affordable Care Act (ACA). Two of the four issues can be disposed of with easy dispatch. (1) The money that an American will have to pay on his or her tax return starting on April 15, 2015 will be found to be a penalty and not a tax, thus the Anti-Injunction Act that bars a suit before the tax is assessed and then not paid will not bar a decision on the constitutionality of ACA; (2) the Medicaid provisions within ACA will not be found so coercive upon the states to render them unconstitutional.

The key issue is whether or not the individual mandate requiring a citizen to purchase a health care policy of insurance as of 2014 is constitutional under the Commerce Clause of the Constitution. Others writing for Huffington Post have addressed this item ad nauseum, but the concern of the justices on the right is that if the government can force us all to buy an insurance policy, what next can it make us do -- buy broccoli (Scalia), a cell phone (Roberts) or burial services (Alito)? This is best described as the slippery slope argument that lawyers like to use to test the premise of the item at issue, here the minimum coverage provision. As Professor Geoffrey Stone writes, "But the slippery slope is a means of reasoning, not a conclusion". I have to agree, since the factors making the health care market and its financing arm, insurance, unique are not present with other goods and services, and certainly not with cell phones, foodstuffs or what it takes to put us six feet under or in an urn for posterity. And the likes of a Scalia, Alito, and Roberts have too excellent a legal curriculum vitae and scholarly pedigree not to know that there are too many protections afforded Americans within the Constitution, the Bill of Rights, even due process to allow for a slippery slope by declaring the mandate constitutional.

Confirming that the mandate survives on its own merits could not have been made clearer by the difficulty the justices had in dealing with what provisions of ACA survive if the mandate is tossed out. This was the "severability" issue. One option for the justices is throwing out the entire act with the mandate, in which case millions of Americans already reaping the benefits of the law will lose them; other provisions whose goal it is to improve in 2014 and beyond access and affordability to health care would be jettisoned too. After Bush v. Gore, and Citizens United, I am sure Chief Justice Roberts would not wish to see this occur as part of the "Roberts Court" legacy. A second option is that the justices could just throw out the mandate and leave everything stay as the law of the land, including the provisions providing for the new benefits like coverage for preexisting conditions [known as guaranteed issue], kids on their parents' policies until age 26, covered medical procedures, and no discrimination based on factors such as age and gender [known as community rating]. This would leave the insurance industry in an irreversible spasm since it is counting on the mandate to fund the guaranteed issue and community rating provisions. This was made quite clear during oral arguments. Without the mandate but with the added benefits not based on any rating factors, insurers would have no choice but to jack up premiums to an incredible degree; some say from 2.4 percent to 40 percent higher than they are now. There then goes out the window a goal of ACA access and affordability to health care.

A third option is to toss out the mandate with the guaranteed issue and community rating provisions and leave the rest of the act intact. Again, however, the United States Supreme Court would strip away benefits that a couple of million Americans are receiving already; this would stain a Roberts Court legacy as well. These options place the Court in a "lose-lose" dilemma and a very compelling reason that it cannot afford to find the individual mandate unconstitutional. Also, if the justices really want to decide the issues using only what the law provides them and not having a decision decided by "external" factors (Stone says in his piece, "then we know something else is going on"), then finding the mandate constitutional avoids all the incredible problems inherent in the options discussed above.

A parenthetical of note. During the oral arguments, opponents and their lawyers said that taxing Americans to pay for health care for the uninsured would surely be constitutional. Pragmatism always enters into the mind of a jurist, so given the present state of those in Congress, a justice knows that a tax increase for health care would never get through Congress when Republicans would never stand for a tax increase for anyone regardless of the reason? Equally true is how many in Congress would want a universal or one-payer system. That idea went down in flames during the debate on ACA before it became law, together with the public option that Obama wanted; a justice knows this as well. Again, what is left to start fixing a very ailing health care system that substantially impacts interstate commerce is... the individual mandate.