SCOTUS Preview Part III: The Perils Of Overreach

Anti-Health Care Lawyer Randy Barnett

The following is the third in a four part series previewing the four issues facing the Supreme Court in next week’s Affordable Care Act arguments.

When the Supreme Court strikes down one provision of a larger statute, it applies an extremely strong presumption in favor of keeping the rest of the law intact. In the Court’s words, it will not remove any constitutional part of a law unless it is “evident” that Congress would have preferred no law to some law. For this reason, in the highly unlikely event that the Affordable Care Act’s requirement to carry insurance is struck down, it is all but certain that the lion’s share of the law will remain in effect.

Nevertheless, the law’s challengers insist that the entire law must fall if just one piece is removed, a position that no judge has accepted except for the guy who included an explicit shout-out to the Tea Party in his opinion. They will regret this decision. In overreaching so severely, the law’s challengers also managed to concede that their entire lawsuit is without merit.

To understand why, it is important to understand how the ACA functions. Currently, insurance companies routinely deny care to persons with preexisting conditions — a practice which can render someone unable to receive coverage for conditions as severe as cancer, as routine as hay fever, or even because they are a rape survivor. The Affordable Care Act ends this practice, but this long overdue regulation does not come without a price. The ACA’s protections for people with pre-existing conditions cannot function without a requirement that people obtain insurance before they become ill or injured. This is because, if patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.

This necessary link between the insurance coverage requirement and the ACA’s insurance regulations doesn’t just make the requirement good policy; it also makes it constitutional. As conservative Justice Antonin Scalia explained, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

Which brings us to the consequences of the plaintiffs’ overreach. In their brief claiming the whole law must go away, several of the plaintiffs outright concede that the insurance coverage requirement is necessary to make the ACA work effectively:

The mandate was intended to be a direct subsidy to insurance companies, as compensation for requiring them (in the guaranteed-issue provision) to insure against “risks” that have already come to pass and forbidding them (in the community-rating provision) from using actuarially sound insurance premiums. The mandate thus works to counteract the powerful inflationary impacts of these other provisions, which would otherwise make premiums in the individual insurance market prohibitively expensive, thereby frustrating Congress’ goal of affordable health insurance. And Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance.

In light of this concession that Justice Scalia’s rule controls the case, the justices really don’t even need to bother with oral argument — since both sides apparently agree that the law is constitutional.