Legal expert: Court nearly rejected entire health care law

NCC Staff

Legal expert Neil S. Siegel explains how President Barack Obama’s health care reform law came down to a single act by Chief Justice John Roberts, and how close it came to extinction.

On Thursday, the Supreme Court upheld most of the Affordable Care Act in a 5-4 decision.

Siegel is a constitutional law expert, and Professor of Law and Political Science and co-director of the Program in Public Law at Duke University School of Law.

“For the most part the court followed the law,” Siegel said about the decision.

Link: See Neil S. Siegel Live Chat Replay

In a move few observers expected, Roberts sided with four liberal justices to decide that Congress could ask consumers to buy health insurance or have them pay a tax penalty, the idea behind the “individual mandate.”

That premise held up most of the Affordable Care Act as constitutional, although the court made a possibly significant change to Medicaid rules for states.

“He emphasized the deference that is due to Congress,” Siegel said about Roberts.

And in a twist, Roberts agreed with court conservatives that the individual mandate wasn’t constitutional when it came to the congressional power to control commerce.

“It was the tax power or nothing,” Siegel said, meaning the entire ACA would have been overturned if Roberts hadn’t ruled the mandate was constitutional as a tax.

Siegel said the ACA’s opponents in court had to prove the act went beyond three constitutional powers: the Commerce Clause, Necessary and Proper Clause, and the taxing power.

“The government just needed to go one for three,” Siegel said, about swaying five justices to agree to one concept.

Siegel also said there are a lot of precedents for taxing people for not doing an act, like not buying insurance.

“I don’t think under the tax power it is problematic,” he said about the mandate.

Siegel also pointed out one moment from the March 2012 hearings on the ACA that was lost on many observers.

After the grueling arguments about the Commerce Clause, Siegel said that a conservative justice, Antonin Scalia, stated that the controversy was really about the tax power in Congress, which he called “extraordinary.”

Siegel said it was clear from reading Thursday’s rulings that the ACA faced defeat if Roberts hadn’t sided with the liberals on the taxing power of Congress.

“The dissenters would have invalidated the law in its entirety,” he said.

One factor that deserves further attention, Siegel said, was the potentially significant Medicaid change made by the court in the ruling.

The original ACA forced states to expand Medicaid or lose federal funding.

“The remedy is to give the states the choice,” he said, to take part in the Medicaid expansion or keep their current programs, at no penalty.

Siegel said this is the first time the spending clause in the Constitution has been found unconstitutionally coercive by the court.

“What are the implications of this decision for other federal programs?” Siegel asked. “It’s going to be something to look at.”

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