What is the Supreme Court Up to?

November 20th, 2011 by MorganDowney Leave a reply »

This week the Supreme Court agreed to hear a legal challenge to the Affordable Care Act (ACA), President Obama’s signature health care reform legislation. The issues around the “individual mandate” have been well discussed. Timothy Jost, professor of law at William and Mary University School of Law and an insightful thinker on health care law. In a new post, he points to two critical issues in the Supreme Court’s review which are now below the radar but could become extremely compelling. The first is that the Supreme Court added review of the ACA’s expansion of Medicaid. This is not only a key channel for expanding health care coverage but the theory of the challenge, namely that Congress can use its spending power to unconstitutionally coerce states into certain programs. Such use of the spending power is common throughout many government programs. Overturning or even questioning the use of the spending power in this way could raise challenges to a host of federal programs.

The other issue is a more technical, legal issue of severability. Briefly, severability raises the question that, if the individual mandate (or any specific provision) is declared unconstitutional, does the rest of the law remain in place or is the entire statute voided. The Supreme Court has reserved specific time for arguments on both issues. High Court To Review ACA’s Minimum Coverage Requirement, Medicaid Expansion – Health Affairs Blog