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An Important week for the Supreme Court                                                                                     Print this essay

Posted at: Mar/27/2012 : Posted by: mel

Related Category: The Law, Watching America,

Traditionally, when the Supreme Court agrees to hear a case, they are agreeing that there is some critical issue that the lower court “may have” gotten wrong…or at least it is worthy of open discussion. Most cases that the Supreme Court agrees to hear are given 2 hours for presentation of arguments. Now the court has allocated 6 hours to hears arguements over portions of the "Affordable Healthcare Act." I am not a legal scholar, but to my knowledge the last time a presentation was allocated a greater period of time was “Miranda v Arizona” in 1966. This should be a signal for how important this is.

In this case the Court has allocated six hours for arguments over a 3 day period. Clearly this should signal to everyone the importance and complexity of the issues to be presented. The Supreme Court has condensed the issues down to four questions.

This first question is for March 26, 2012 and has been allocated 90 minutes. The focus will be what some are calling the “threshold question”. In this case the justices must decide whether an 1867 law called the “Tax Anti-Injunction Act” prevents the court from even considering the law right now. The basis for the law is that the U.S. could not have an effective tax system if every time somebody thought a tax provision was unconstitutional, they could just refuse to pay until a court makes a ruling. This effectively means people are required to pay the tax and then challenge it.

Complexities here include that no one will be required to pay anything until 2015, so the argument can be made that no one has yet been injured and there can be no basis for this to currently be in court. Can you go to court over an injury you may suffer in the future? There are also debate points about whether this is a tax or a penalty, either way the plan is to have the IRS (Internal Revenue Service) be responsible for the collection duties.

The second question to be argued on March 27, 2012 is titled the “Individual Mandate” and has been allocated 2 hours. In this case the court is being asked to consider whether Congress has the authority to compel people to buy health insurance.

The challenge to the law is whether for the first time the federal government can require people to buy something that they may not want.

Health insurance is by design a method for distributing across a broad group of people the costs and risks associated with medical care. On the up side this is intended to reduce the cost of care for those with pre-existing conditions who might otherwise be discriminated against, or simply not be able on their own to afford the care they potentially need.

Fundamentally, if everyone is paying into the insurance pools, the individual costs for services would be more widely distributed and therefore go down. Unfortunately, this also means that people who do not want medical insurance either because they feel healthy and make it a low priority, or because it exceeds an already tight budget would be required to purchase it anyway under risk of financial penalty. This is followed by the slippery-slope question: If Congress can mandate the purchase of this product; can they mandate that everyone buy a Chevrolet Volt? Could lobbyist get a bill approved mandating that everyone buy and eat broccoli? The government argument is that everyone will eventually need health care and should therefore be paying into the pool now. Everyone will eventually die, should we all be required to buy funeral insurance?

The third question to be argued on March 28, 2012 is titled “Severability” and has been allocated 90 minutes. If the court strikes down one part of the Healthcare Reform act of 2010 such as the “Individual Mandate” will the entire law with all its parts and pieces become invalid? Not all the parts of the Healthcare act are considered directly linked, and many parts are being phased in separately over time. Closing the “donut-hole” in prescription coverage, dependent children to be covered to 26 years old, non-discrimination for coverage or price based on pre-existing conditions.

Congress and the insurance companies have already admitted that if the “Individual Mandate” is not there to fund the law, protection for pre-existing conditions (a very popular piece) would have to go.

If one piece of the law is determined to be invalid, does the entire package become invalid?

The fourth and final question to be argued on March 28, 2012 is titled “Medicaid” and has been allocated 1 hour.

This question asks whether the expansion of Medicaid in the health care law unconstitutionally coerces states into participating in the program. Medicaid is a joint federal and state program in which states pay up to 50% of the cost for poor and disabled care. Though no states have to this point, they have the option to opt out.

The current Medicaid program is expected to see a significant expansion as the Medicaid component of the new law in incorporated. For the first 3 years the Federal Government would pay the costs, and then the burden falls to the states. This is anticipated to be a 10% increase with no option to opt out of the expansion only. Medicaid is specified as an all or nothing proposition, either a state is totally in or totally out.

In this take it or leave it approach is being argued by the states as unconstitutional coercion, though no lower court has yet bought that argument. Remember that this is going to be hard to plan in advance for and unlike the Federal Government, states are required to balance their budgets.

There is a lot to be decided here. By most accounts health care now represents about one-sixth of the overall U.S. economy and is continuing to grow.

For Congress this is a question of how much of what is the scope and limit of their powers.

For President Obama this represents the signature achievement of his administration and a potential measure of his leadership.

There is also plenty of irony to go around as the “Individual Mandate” was originally proposed by Congressional Republicans in the 1990’s who are now it’s strongest opponents.

Fundamentally, this is the greatest of all American debates to appear in many decades. The rules of our society are continuously pitting the limits of Equality against the limits of Freedom. Equality says everyone needs and everyone should have access to affordable and viable healthcare regardless of their ability to pay. Freedom says an individual is entitled to accomplish more and therefore be able to acquire greater healthcare than someone else and not have to pay for the other person to have an equal level of care.

The problem with pitting Equality against Freedom is that there is never a perfect answer, only one that defines society. Given everything that is at stake, this could be the signature court ruling of this era.

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Alphonse Karr
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