As marked by the uncommon three days of oral arguments, totaling six and a half hours, the decision of the Affordable Care Act’s (ACA) constitutionality will not be an easy for the nine Justices of the Supreme Court. Lawyers argued four issues in front of the bench: the Anti-Injunction Act, the Individual Mandate, the severability of the law, and the Medicaid expansion. With the debate finished, the Justices will deliberate the questions and deliver their answer, hopefully, in June. The oral argument transcripts and audio tapes are available online for anyone to read and hear. However, the public should be careful to draw their own conclusions from the questions asked from the Justices because, in the past, Justices have switched their stance on issues once behind closed doors. It is also important to remember that the Court is ruling over the constitutionality of the Act, not whether it is a good idea or might have positive aspects.
The future of the Affordable Care Act is difficult to predict, even for the experts, because the four complex cases brought before the Court could receive different votes and opinions amongst the Justices. These cases must be decided individually and as a whole, in case severability of the law’s parts arise. For example, if the individual mandate is found unconstitutional, the Court then has to decide if it is severable from the rest of the ACA or if the mandate was intended to be the corner stone and thus the entire law must be thrown out. Attempting to interpret Congress’s intentions while drafting the Affordable Care Act could be difficult and may lead the Justices to a split their decision on severability.
During the oral arguments over the individual mandate, several Justices questioned US Attorney General Verrilli on the limits of the federal government’s power. Specifically, Justice Kennedy, often perceived as the swing vote, noted that the individual mandate was changing the relationship between government and individuals because the government is telling people they must act and enter into commerce. Justice Roberts questioned if Congress can create a law mandating individuals to use their private money to purchase health insurance for when an emergency arises, “can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?” Although both the petitioner and respondent received tough questions by the Justices, questions are not necessarily reflective of their stance or a definite prediction of their decision.
Several surveys have been conducted to find the public’s opinion on the ACA health care reform law and the Supreme Court case. North Star Opinion Research conducted a national public opinion survey of 1000 registered voters; the pool was split fairly evenly: 34 percent Democrat, 33 percent Independent and 29 percent Republican. It is not a surprise that their results showed majority, 77 percent, of Republicans oppose the ACA and 67 percent of Democrats support the health care reform law. However, a large majority of all voters favored health care reforms in the future. A few reform suggestions, popular among those polled, were controlling the costs of health insurance through interstate purchasing of plan, reforming the medical malpractice system, ensuring insurance to people who have pre-existing conditions and encouraging states to lead their health care reform instead of the federal government. Addressing these publically supported reforms, however, will depend on the Supreme Court’s ruling of ACA, cooperation between political party in Congress, and the November elections.
Before the Supreme Court hearings began, The American Action Forum and Blue Dog Research Forum announced the results from their Supreme Court prediction survey, taken by 66 participants that have either clerked for Supreme Court Justices or argued before the Court. The majority of constitutional experts in this survey predict the Court will find the individual mandate and the Medicaid expansion constitutional, 65 percent and 81 percent, respectively. Yet, if found unconstitutional, the results show that 39 percent respondents thought the individual mandate was severable or 38 percent partially severable. Likewise, 65 percent of respondents thought the Medicaid expansion would be severable if found unconstitutional. Since the oral arguments these experts’ predictions may have changed due to some Justice’s questions or strength of arguments.
Overall, the Supreme Court’s ruling on the constitutionality of the Affordable Care Act will be a historic moment for the country and Chief Justice Robert’s Court. Predictions can be made from the oral arguments but no one can be certain the outcome until the decision is read in June. The Court will have to support its decision with constitutional evidence and not public or personal opinions.