Today, the Supreme Court announced that it would review the Eleventh Circuit’s decision striking down the Patient Protection and Affordable Care Act (the “Act”) as unconstitutional. As we have previously discussed here and here, courts are split on this question. The Eleventh Circuit concluded that Congress exceeded its constitutional authority when it passed the Act, while a conservative panel of judges on the D.C. Circuit recently joined the Sixth Circuit in holding that the Act was within Congress’ authority.
The focus of the Court’s review will no doubt be on whether the Act’s “individual mandate” exceeded Congress’ authority to regulate interstate commerce. Supporters have argued that the individual mandate complies with earlier Supreme Court decisions allowing Congress to regulate local and personal activity that itself does not involve interstate commerce (such as growing marijuana for personal use), but will still affect interstate commerce when the actions of many individuals are considered in the aggregate. Indeed, supporters note that failing to purchase (or have) health care insurance will inevitably affect interstate commerce, since all citizens will eventually need health care at some point, and how and when they receive and pay for those services will affect interstate commerce in the aggregate. Opponents argue that interpreting the Commerce Clause to allow Congress to force participants to take an action they would otherwise not take would be an unprecedented expansion of federal power. All previous cases, they argue, involve Congress’ regulation of existing economic activity (e.g., growing crops in excess of government limitations). If Congress can force those outside of the stream of commerce to take a certain action, then opponets believe there is no practical limit to Congress’ Commerce Clause authority.
While this issue will no doubt be the focus of the Court’s five and one-half hour argument, it also granted certiorari to address several other issues, including whether the case was presently ripe, and, assuming the individual mandate did exceed Congress’ Commerce Clause authority, whether the entire Act must be struck down, or only that clause.
While the Supreme Court’s ultimate decision will certainly be closely watched, it seems unlikely that employers will end efforts to comply with the Act in the interim. The case is expected to be heard in February or March of 2012, and a decision will likely be issued by June.
Supreme Court Agrees to Review the Patient Protection and Affordable Care Act
November 14, 2011