Faculty Experts React to Supreme Court Decision on Health Care


June 28, 2012 — Several University of Virginia professors offered early reactions Thursday to the U.S. Supreme Court's 5-4 ruling upholding the Patient Protection and Affordable Care Act. The health care opinion comprised three Supreme Court cases: National Federation of Independent Business v. Sebelius; Florida, et al., v. Department of Health and Human Services; and Department of Health and Human Services v. Florida, et al.

Richard Bonnie
Law professor

"The chief justice's pivotal opinion upheld the individual mandate as a valid exercise of Congress' taxing power. If the dissenters had prevailed, this would have been the most sweeping interference with the constitutional prerogatives of the Congress and the president since the New Deal. It is troubling that four justices would have invalidated the law in its entirety.

"In the short run, this is a victory for President Obama and the Democrats in Congress. In effect, a slim majority of the court held that the responsibility for deciding how to fix America's health care system lies with Congress and ultimately with the voters. If the people don't like the Affordable Care Act, they can elect a new Congress and a new president. They will have a chance to do that in November.

"In the long run, I am concerned about the implications of the various opinions in this case for the scope of congressional power under the commerce clause. The chief justice's pivotal opinion upheld the individual mandate as an exercise of Congress' taxing power. However, the chief justice and the four dissenting justices concluded that the individual mandate was not within in the reach of Congress' power to regulate interstate commerce. In my opinion, this part of the ruling represents a substantial departure from settled understanding regarding the scope of congressional power under the commerce clause, and could produce much mischief in the future."
Dr. Arthur Garson Jr.
University Professor of Public Health and Director of the Center for Public Health

"For those of us very concerned with the number of uninsured in the country, the Supreme Court action is good news, as 32 million people who had planned on having access to health insurance in 2014 are a step closer to that goal.

"However, this ruling has actually added fuel to the detractors and simplified the argument – now it is about 'No New Taxes.' The drafters of the bill knew that to call this a tax would be unpopular, and they were right – it is unpopular, and now it is front and center. Perhaps this ruling could eventually stimulate compromise. Repeal with no substantive change would be the worst outcome for the health of America."

Saikrishna B. Prakash
Law professor

"I don't believe the federal government would have had the power to pass the Affordable Care Act in 1789. It has that power today, or so a majority of the court tells us. What the court will say about the act (or another very similar one) in five or 10 years, no one knows.

"Those who are under the impression that the court has decided this question, once and for all time, may well be mistaken. The New Deal conception that there are few, if any, meaningful limits on the scope of federal power is still widely held amongst lawyers, including several justices on the Supreme Court. But its grip is lessening day by day. There are many more lawyers and academics committed to the view that the federal government has limited powers than there were 20 years ago. And there are also many more politicians and citizens who wish to pare back the welfare state as a policy matter. As the majority's narrow reading of the commerce clause shows, when these two forces combine, they can transform an argument that many dismissed as silly into one capable of securing five votes.

"The fervor of these two groups show no signs of diminishing. With a few appointments here and there, this case may one day find itself on the ash heap of history, along with other cases that were once thought to have resolved something once and for all (Dred Scott and Roe). The champions of broad federal power may have won the battle, but they may yet lose the war."

Dorrie Fontaine
Dean of the School of Nursing

"For this nation, today's upholding of the Affordable Care Act is a real victory that will translate directly into more care, for more Americans. Access to health care is a right – and delivering that care to millions of newly insured Americans is nurses' most fervent and primary goal. With more education, and practicing to the fullest extent of our profession, America's nurses stand ready, with their physician and health care colleagues, to keep more people healthier, safer and more secure.

"To the 32 million Americans who will soon be added to the health insurance rolls, please take care; We – the nation's nurses – will see you soon."

Margaret Foster Riley
Law School general faculty

"This morning's decision is proof that we should not put too much credence in oral argument discussion. This case was decided on the briefs.

"The most important part of this morning's decision on the Affordable Care Act is that it happened. It removes a major piece of uncertainty. Of course the political uncertainty remains.

"The Medicaid part of the decision may have important implications for Medicaid, but they may not be important for the ACA expansion of Medicaid since the federal government funds 100 percent of the states' share in the beginning. That will be too tempting for most states."
Dr. James Turner
Executive director of the Department of Student Health and the National Social Norms Institute

"The June 28 ruling allows most of the act's provisions to continue to be put in effect, including enforcement procedures (tax penalties) requiring individuals to buy health insurance. Ultimately that means more college students will have health insurance – which will help preserve college health services, standardize the cost-and-benefits structure of college health-insurance plans and make it easier for colleges to serve students and refer them for specialty or inpatient care and diagnostic tests.

"Many colleges and universities have met the spirit of the act's standards for years and will experience little or no change in their programs or policies. College health plans are considered individual-coverage plans, and they therefore comply with the federal law's individual mandate. The law permits institutions to continue to sponsor insurance plans that limit eligibility to students and their dependents." (Read his full op-ed here.)

James Ryan
Law professor

"Another part of the opinion that is worth attention, and will not likely receive much, is the chief justice's treatment of the 'necessary and proper' clause. The chief justice rejected both the idea that the individual mandate was a valid regulation of interstate commerce and the idea that it was a necessary and proper component of a broader regulation of the health care industry.

"To my mind, the reason the case was an easy one was that everyone agrees that regulating the health care industry is a regulation of interstate commerce. And it seems to me obvious that the individual mandate is a necessary and proper component of that broader regulation. In past cases, the court has treated the necessary and proper clause as giving Congress broad discretion as to how to regulate. Although the chief justice's opinion gives lip service to the scope of Congress' discretion, he concluded that the individual mandate was not necessary and proper because it was not an 'essential component' of the regulation. That seems incorrect as a description of the mandate's importance to the overall regulatory scheme here.

"Perhaps more importantly, the chief justice's language could actually prove significant in future cases, if it signals, as it seems, a restriction on the discretion traditionally afforded Congress to pass laws not only pursuant to their enumerated powers, but those that are necessary and proper to implement those powers. When one recognizes that, strictly speaking, there was no need for the chief justice to say anything at all about either the commerce clause or the necessary and proper clause, given that he voted to uphold the law on an alternative basis, it's hard to escape the feeling that his use of restrictive language was not casual but strategic."

Carolyn Engelhard
Director of the Health Policy Program

"The quintessential question regarding today's Supreme Court ruling surrounds whether the ACA is good health policy. While health policy is an amalgam of economics, ethics, philosophy and politics, I believe that everyone would agree that the U.S. should strive to produce a health care system that provides adequate access to affordable, high-quality medical care.

"Honest people can disagree about whether the ACA's menu of mandates and benefits is the swiftest way to get us to those goals, but it nevertheless sets in motion one path toward the expansion of health coverage for those historically left out of the health insurance system. Whether the statute has in place enough 'sticks and carrots' to quell our appetite for ever-increasing costly medical services or offers a guarantee of safe, patient-centered, quality care, remains to be seen, and managed, over time."

Douglas Laycock
Law professor

"The bottom line here is that the Affordable Care Act is upheld. Congress cannot require people to buy health insurance, but it can tax those who refuse to do so. And a tax on those who refuse to do so is the only enforcement mechanism that Congress had enacted.

"Congress had never required everyone to purchase a product or service before; there had been no need, because no other market works like the market for health insurance. And there's a good chance that Congress will never need to do so again, in any market other than health insurance. But if it does, it can tax people who refuse to buy the product. Under the chief justice's reasoning, Congress can tax people who don't buy broccoli – not that it ever would.

"Justice Ginsburg's separate opinion would have upheld the requirement to buy health insurance as a regulation of commerce and not only as a tax. Her opinion is squarely based on the practical realities of the health insurance market. Requiring insurers to cover pre-existing conditions is indisputably a regulation of commerce, and requiring people to buy insurance is indisputably necessary to the workability of covering pre-existing conditions. People who wait till they are sick to buy health insurance are free riders, damaging the system for everybody. The problem is national, and no state can solve it on its own.

"The chief's opinion gives lip service to those realities, but ultimately treats them as irrelevant. He thinks that if Congress can require people to buy health insurance, it can require them to buy any product or service in the economy. If he views required purchase as a problem, it would have been so easy – and a stronger protection for what he is worried about – to say that requiring people to buy something they don't want is an unusual regulation of commerce, requiring extraordinary justification, but that extraordinary justification is present here. Perhaps it would be present in no other industry. He could have treated this case as unique because this industry really is unique.

"The Medicaid piece of this is getting less attention, but is equally important. The court upheld the expansion of Medicaid to cover many of the uninsured, but struck down part of the enforcement mechanism for inducing state participation. This is the first time since 1936 that the court has limited congressional power under the spending clause. Whether anything further comes from this, either for Medicaid or in other cases, remains to be seen."

Eric Patashnik
Associate dean of the Batten School of Leadership and Public Policy

"The Supreme Court's decision that the individual mandate is constitutional under the federal government's taxing power is a huge legal and political victory for the Obama Administration.  Chief Justice Roberts found a middle path, granting the main conservative argument against the law (the federal government's regulatory powers are not unlimited) but also allowing implementation of the law to go forward.

"As I wrote with my colleague Jeffery Jenkins, this does not mean that the battle over health reform is over. The partisan and ideological struggle over Social Security continued even after the Court upheld its constitutionality in Helvering v. Davis in 1937.  Social Security's political support was not consolidated until the 1950s.

"Now the debate over Obamacare shifts to the presidential campaign trail – and back to Congress.  Look for GOP efforts to defund the law's new benefits and bureaucracies through the filibuster-proof budget reconciliation process, especially if Romney defeats Obama and the Republicans hold the Congress.

"So:  a major victory today – but the battle over health reform will continue."
Thomas Hafemeister
Law professor

"This must have been a frustrating experience for Chief Justice Roberts. He knew how socially divisive this issue was and he knew that traditionally the chief justice strives for unanimity among the members of the court with regard to socially divisive issues.
"As a pragmatist, he undoubtedly knew it was going to be very hard to accomplish that here, but he probably thought he had come up with a 'solution' that might pull this off. First, place some clear limits on the scope of congressional power under the commerce clause, which would address the concerns of the court's conservative wing about the expanding role of the federal government. At the same time, uphold the individual mandate – the key element of the Affordable Care Act – under Congress' taxing power, which would please the liberal wing's desire to see the law upheld, while further placating the conservative wing because this would assign a political cost to such efforts by requiring them to be characterized as an always-unpopular additional tax. 

"That this was a 5-4 ruling, and a fractured majority at that, suggests the Sisyphean nature of this task. But with the Supreme Court's approval ratings at their lowest level in a quarter-century, Congress' approval ratings even lower and the country seemingly polarized and paralyzed by partisan divisions, it was reassuring to see the chief justice make the effort."