Cosman: Obamacare should withstand Supreme Court scrutiny

On Monday March 26 the United States Supreme Court began hearing arguments surrounding the Affordable Care Act – the key health care legislation passed in March 2010. The arguments focus on one key aspect of the legislation: the individual mandate. The issue is one of constitutional interpretation, congressional power and the regulation of commerce.While the justices appear to be split on the issue, I believe the legislation will be – and should be – upheld.

The majority of argument time is dedicated to the issue of “whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.” Under this individual mandate, all American citizens would be required to purchase health insurance or pay a penalty. On the surface, it seems ludicrous – how can Congress insist citizens purchase something?

With a closer look, however, the mandate does not seem so preposterous. The primary goal of the ACA was to solve the tremendous costs of health care as it stands today. One of the largest costs to American citizens comes from the uninsured.

Currently, when an individual without health insurance requires medical attention, they visit emergency rooms. Hospitals cannot refuse treatment to an individual in the ER. When it comes time to pay the bills from these hospital visits, the uninsured cannot – so the cost falls to the government (through Medicare and Medicaid reimbursements to hospitals) and insurance companies who in turn raise rates. The individual mandate solves this problem; it eliminates the uninsured population incapable of covering their own costs.

The question on whether Congress has the power to force citizens to purchase insurance or pay a penalty is one of semantics. The issue is with the use of the word “penalty” in the legislation. Congress has the constitutional power to levy taxes. The “penalty” is, in essence, a tax – just not by name. Congress made a detrimental mistake by using “penalty” instead of “tax” – but I believe the justices will view the two as one in the same.

It is also within the power of Congress to regulate commerce, which is what it is doing with the ACA. It is regulating the commerce of health care. There is some question, however, on whether or not the ACA regulates existing commerce or, because it requires uninsured citizens to make a new purchase, creates a new commerce.

The Supreme Court could go either way on this issue – Justice Anthony Kennedy raised this concern during the oral argument on March 27, and while I believe the ACA to be regulating commerce, it certainly is the murkier issue with the legislation.

A lot hangs on the Court’s decision. If the mandate is stricken down, in all likelihood the entire act will be as well. If this happens, I do not believe there will be another attempt at major health care overhaul in the near future – yet we undoubtedly need it.

It also has significant implications on the upcoming presidential election. The ACA is one of President Barack Obama’s key pieces of legislation from his first term and a decision deeming it unconstitutional will certainly reflect badly on the president. The fact that it is based upon former Massachusetts Gov. Mitt Romney’s health care bill, however, doesn’t make the issue as clear as it could be in terms of electoral impact.

In the end, I believe the “broccoli argument” (that an individual mandate gives Congress the power to hypothetically force citizens to purchase broccoli) doesn’t stand up, and the Court will rightfully uphold the ACA by a vote of 5-4, with Kennedy as the swing vote.