Overturning Health Reform: What's Really at Stake?

Article excerpt

Nearly a year after President Obama signed the Affordable Care Act (ACA) into law, baffles over its constitutionality continue to flare up in several separate lawsuits, and in countless media and political arenas. Those who work in the field of aging should carefully monitor the outcomes of these cases: they could result in the denial of health coverage to nearly half of all older adults between ages 55 and 64, and threaten other benefit programs such as Medicare, Medicaid and Social Security.

While Congress was drafting the health reform law, opponents first broached the prospect of constitutional challenges. Experts derided the constitutional case against the legislation as "preposterous," in the words of Harvard's Charles Fried, Solicitor General to President Ronald Reagan.

Thus far, most cases have been dismissed, and two of the federal district courts have upheld the principal target of the challenges - the "individual mandate" or "minimum coverage provision" requirement that most Americans who can afford it should carry health insurance. However, one district court has struck the mandate down and another overturned the entire law. So the staying power of health reform is very much at risk.

Ultimately, the issue will be resolved by the Supreme Court, perhaps at the end of two years. Key members of the Court's conservative bloc have written major opinions that would be hard to square with disapproval of the mandate or other ACA provisions under challenge. But the current Supreme Court, in its handling of politically or ideologically charged cases, has a track record of giving precedent short shrift and splitting five-to-four along partisan lines. So precedent may not be prologue in this case.


Beyond the targeted ACA provisions, consider the following two salvos to the foundations of constitutional law - which is what really is at stake in these cases:

Pending health-reform challenges constitute a bold bid for historic, sweeping constitutional change. If successful, the challenges would be a major step toward "restoring" a constitution that tightly constrains congressional regulatory authority. Some proponents of the lawsuits claim this authority was "lost" in the late 1930s and early 1940s when the Supreme Court adopted constitutional interpretations supporting the expansion of federal regulation of the national economy engineered by Progressive Era, New Deal, Great Society and kindred reforms.

Legal theories behind these lawsuits take dead aim at three bedrock understandings that inform the vision of a democratically governed, economically robust nation-state. These bedrocks have shaped American constitutional law not only since the New Deal era, but since the drafting of the Constitution's provisions allocating governmental power to make national economic policy - and to Chief Justice John Marshall's interpretation of these provisions in the first third of the 19th century. …