After a week of deciphering arcane acts and constitutional powers, one thing remains clear: the Affordable Care Act (ACA) is law. It was law last week, it is law today, and it will be law tomorrow. We all remember its development, passage and signing into law more than two years ago and for those who need a refresher on the process of becoming a law, see here. While the Courts mostly fixate on one provision in that law, we must remember that the road we’ve traveled is legitimate and the goal of health coverage for Americans is right. What comes next is months of speculation – everyone can do that –- so let’s review the facts of the week.

Anti-Injunction, what’s your function? Of the three days, day one was the lightest, easing everyone into a week of intense questioning (this is what justices do) and media frenzy (this is what the media does).

Solicitor General Don Verrilli and his opponent Paul Clement began oral arguments regarding the constitutionality of the Affordable Care Act – beginning, actually, on the same side of the aisle. Both Verrilli and Clement argued that the Anti-Injunction Act (AIA) – a law that prevents a party from challenging a tax until it is levied – was not relevant to whether or not the Court could move the case forward.

Despite efforts made by Robert Long, a court-appointed attorney, the justices appeared suspect of the applicability of AIA to the ACA’s individual responsibility requirement (IRR. Without wading through the knit picky stances regarding jurisdiction, separation of the IRR from the penalty, and whether the penalty itself is a tax (see a great overview here), the government did get slapped (by Justice Scalia) for its stance that the IRR penalty is not a tax for the purposes of AIA. Verrilli found himself performing a delicate dance because on day two he would need to reframe the IRR, arguing that the tax clause (or Congress’ signature power to tax) supports the inclusion of the IRR in the ACA. But no matter, there is plenty of political posturing frosted over this entire week – no one emerges spotless.

Analysts agree that day one served as a warm up for everyone and that judgment on the IRR, severability of the IRR and Medicaid expansion would move ahead without delay.

Lolly, lolly, lolly, get your Individual Responsibility Requirement here! As a refresher, day two was considered “the” day of argument to follow. ACA challengers maintain that the individual responsibility requirement (IRR) is unconstitutional. The justices focused on three main issues:

  1. What is the limiting principle – in other words, what keeps Congress from forcing us to buy broccoli, cell phones or burial slots? (Questioning led by Justices Roberts and Scalia)
  2. Is Congress creating commerce to regulate? (first question posed by Justice Kennedy)
  3. Why should healthy people subsidize care that they might never use? (comments suggested by Justices Roberts and Scalia).
For a legal recap, see here.

Though Verrilli’s performance was not the stellar performance many had hoped for, the oral argument is only one factor in determining the outcome. As succinctly put by Brad Joondeph, former law clerk for Justice Sandra Day O’Conner, “In a case of this magnitude, the idea that what was said at oral argument could change the outcome is probably fanciful.”

Despite the fact the more conservative elements of the Court dominated the discourse, both Verrilli and Clement faced a barrage of questioning—Clement slightly more (if you’re counting) than Verrilli. And if anyone needs reminding of why “we need our IRR here,” read through the comments made by Justices Ginsberg and Breyer – much more powerful arguments than broccoli and cell phones.

Remember the IRR School House ditty:

The IRR is an incentive…. (that’s all it is!) That modifies an objective (Health coverage for all!) And you see that it’s positively, very, very necessary.

And as we reflect on what is positively very, very necessary, let us recap the morning of day three – so inextricably linked to the day two arguments regarding the constitutionality of the IRR. Can the law stand without the IRR? If not, what provisions fall?

While day one left analysts certain that the Court would rule in June on the constitutionality of the ACA (justices appeared cool to embracing the AIA), and day two left opponents giddy that a ruling on the IRR would go in their favor (because the Court appeared divided during questioning), the morning of day three, left analysts frustrated because it became clear that speculation one way or another about anything is futile.

The usual suspects sided with the opponents of the law. For example, Justice Scalia even going so far as to say that his having to read the entire 2700 page law (oh, wait, I meant his law clerks) to search for provisions linked to the IRR was cruel and unusual punishment (yes, we wouldn’t want that). In the meantime, Justice Kennedy asked of Paul Clement “what test to do you suggest that we follow if we want to clarify our jurisprudence?” Indeed, this was the question of the morning. Justices Sotomayor and Kagan appeared hesitant to cut out any more than necessary. Perhaps the weight of striking of the individual responsibility requirement begins to come into focus – millions of newly covered lives focused.

Alas, to the afternoon of day three.

Medicaid Necessity With her good intentions, Where would this country be Without her expansion?

We all know the answer: at least 16 million people by 2019 would lose out on gaining coverage.

Medicaid went on trial the afternoon of day three – with mixed reviews. The challengers maintained that expanding the Medicaid program – the federal/state partnership to provide health coverage to low-income people – infringes upon states’ rights (you cannot tell me what to buy and you cannot tell me what to do!). Paul Clement did his best to show that expanding the Medicaid program to such a large number of people as proposed by the ACA, instituted a threat of “your money or your life.” Clement maintained that states have no choice but to take a bite of the apple.

While the more conservative justices appeared moved by this argument, analyst Lyle Denniston of SCOTUSBlog warns, “once the Court started down the road of second-guessing Congress’s use of its spending authority, it would never hear the end of it.” In other words, take down Medicaid – what falls next? Hmmm, what is the Court’s limiting principle on that one?

Justice Sotomayor and others countered Clement, coming to the defense of Medicaid. Sotomayor stated, “I guess my greatest fear, Mr. Clement, with your argument is the following: The bigger the problem, the more resources it needs. We’re going to tie the hands of the Federal Government in choosing how to structure a cooperative relationship with the States. We’re going to say to the Federal Government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.” Nailed it….!

As a reminder, no lower court agreed with the Medicaid coercion argument.

What’s for homework? While our school house might have been rocked this week, it is currently intact and there is plenty of homework.

1) Continue educating the public about the ACA. Mitt Romney is here to help explain the IRR if you need assistance – see the video here. Keep to the facts: Obamacare is good for you.

  • — 86 million Americans used provisions in the Affordable Care Act to get preventative care through their insurance plans with no co-pay
  • — 2.5 million seniors have saved an estimated $1.5 billion thanks to prescription drug discounts
  • — At least 2.5 million young people now can stay on their parents’ health insurance until age 26
  • — 4 million small businesses can now claim a tax deduction for providing health insurance to their employees
2) Continue the good work of implementation – many states know that this is good policy – protecting lives through health insurance coverage, increasing access through Medicaid expansion and health insurance exchanges, and saving money through innovation and cost saving measures. We must continue to prepare for 2014.

Remember, those that work hard, get ahead – so, stay the course…

 — Eva  Marie Stahl, Policy Analyst