The Supreme Court has set aside 5 1/2 hours for oral argument on the constitutionality of President Obama’s health care act, passed last March. But the health care act might not be subject to challenge at all. Although the D.C. Circuit recently upheld the act’s constitutionality, Judge Kavanaugh’s dissent found that the Tax Anti-Injunction Act–which prohibits taxpayers from challenging a tax law before it goes into effect and before the taxpayers have been “damaged” by the law–bars any court from deciding the health care act’s constitutionality now.
According to Harvard Law School’s Noah Feldman, writing at Bloomberg: “Kavanaugh was sending a distinct message to [Justice Anthony] Kennedy: You don’t have to go there. If he were to follow Kavanaugh’s lead, Kennedy could conclude that the court must wait a few years before deciding whether mandatory coverage is constitutional. Some of the other conservatives might be willing to join him rather than split 4-4 with the court’s liberals on the constitutionality of the provision.”
If the Court finds that the health care act is ripe for challenge, the Court must tackle the tough question: Whether Congress overstepped its authority in requiring that every American buy health care coverage. Justices Scalia, Alito, and Thomas are likely to find the individual mandate unconstitutional. Chief Justice Roberts and the Court’s institutional swing voter, Justice Kennedy, will be the decisive votes.
Professor Noah Feldman, writing for Bloomberg, offers this take on Justice Kennedy’s swing vote: “Justice Kennedy remains the key. But with the conservative position fractured and his former law clerk offering him a way out, the likelihood of his striking down the health-care plan before the election is increasingly remote.”
If the individual mandate is unconstitutional, does ObamaCare fall or can the Court sever the unconstitutional portion from the whole? The Eleventh Circuit held that the individual mandate does not take down the entire act and is severable.
Finally, the Court will decide the constitutionality of the law’s Medicaid amendments, which require the states to increase Medicaid spending. The major issue here is whether the health care act’s Medicaid provisions are coercive, effecting a federal misappropriation of the states’ spending power. No court that has addressed ObamaCare has ruled in favor of the states on this issue.