Professor Mazzone and Obamacare
CCSDD
December 14, 2012

On November 26, as part of the Law Seminar Series hosted by the Center for Constitutional Studies and Democratic Development (CCSDD), the Bologna Center was proud to welcome Professor Jason Mazzone from the University of Illinois. Professor Massone, had planned to speak on the topic of, "Obamacare: Law, Politics, and Culture." However, due to an illness, he was prevented from being able to come to Bologna. In lieu of the seminar, he has graciously offered to submit a piece for the Center that details his work. Professor Mazzone's research focuses on a wide variety of issues, including constitutional law, history, comparative constitutional law and intellectual property law. The following segment represents his views on the matter, and the Center would again like to thank him for his contribution.

"The Patient Protection and Affordable Care Act (ACA)—popularly known as Obamacare—is a 2010 law designed to increase the number of Americans who are covered by a health care plan and to control the rising costs of healthcare in the United States. Americans pay more than people from any other nation for every form of basic healthcare. At the same time, some 50 million Americans are without health insurance. The ACA is the signature legislation of President Obama's first term in office: it represents a major overhaul of the healthcare system and a major piece of social legislation, the most significant since the 1960s.

The ACA is a long (900 pages) and complex statute with many different provisions. It was enacted along party lines: no Republican in Congress voted in favor of the statute. It is also a controversial law. Public opinion polls have consistently shown a majority of Americans polled oppose the statute, although if you ask people about individual components of the law (e.g. prohibitions on insurers from denying coverage to individuals with a history of illness) they generally say they are in favor of them.

The day the ACA was signed into law by the President, it was challenged in court. A series of cases were filed by individuals, business groups, and state governments. These lawsuits targeted two provisions of the ACA: the individual mandate and the expansion of Medicaid. The individual mandate provision of the ACA requires virtually all Americans, beginning in 2014, to maintain a minimum level of health insurance coverage. The goal of this provision is to bring into the health insurance pool healthy Americans who have elected to go without a healthcare plan. Americans who do not have the required coverage will be required to pay a penalty collected by the Internal Revenue Service. The individual mandate provision was challenged on the ground that the federal government—a government of enumerated and limited powers under the Constitution—lacks the authority to force unwilling people to buy health insurance. The Medicaid expansion provision of the ACA sought to have states extend Medicaid—a state-federal insurance plan for poor people—to millions of additional Americans not previously covered. States that did not comply with the extension would lose all of their Medicaid funding from the federal government. States challenged this law as unconstitutional on the ground that Congress lacks power to force states to take action and the threat of losing all Medicaid funding left states without a meaningful choice as to whether to undertake the expansion.

The Supreme Court ruled in June of 2012 that the individual mandate was constitutional on the ground that it merely imposed a tax on Americans who did not maintain insurance coverage. At the same time, the Court rejected the government's argument that the provision of the Constitution giving Congress authority to regulate interstate commerce was a proper basis for the law. That provision (known as the Commerce Clause), the Court held, did not allow the federal government to force individuals to make a purchase, in this case of a health insurance plan. The Court also held that the federal government could not withhold all Medicaid funding from states that did not undertake the Medicaid expansion because doing so would leave states without the ability to refuse to expand coverage to a new class of individuals. Therefore as structured the Medicaid expansion was unconstitutional.

There are numerous interesting and important aspects to the experience thus far with the ACA. One key issue is that this experience demonstrates the extent to which constitutional arguments pervade American political and social life. In many nations, questions of healthcare policy would be the domain of politicians and, especially, technocrats. The ACA, however, was immediately talked about throughout American society in terms of the proper limits of federal governmental power. While many critics complained that the ACA's provisions represented bad policy, the opposition to the law took form in constitutional terms. Indeed, surveys showed that most Americans thought the law (particularly the individual mandate provision) was unconstitutional. Americans tend not to know a great deal about the specific provisions of the U.S. Constitution and they are poorly informed about Supreme Court case law. Nonetheless, they had an innate sense that the ACA was not just a bad idea but constitutionally invalid—and they framed their objections in terms of constitutional arguments.

A second observation is that the experience with the ACA demonstrates the degree to which constitutional law professors in the United States are out of touch with the courts. When the lawsuits challenging the ACA were filed, many, indeed most, constitutional law professors said that the challenges were frivolous and they confidently predicted that the courts would reject the arguments against the law. One prominent scholar said there was probably not even one justice on the Supreme Court who would accept the arguments. Another prominent scholar promised to eat his kangaroo hat if the arguments succeeded. In particular, scholars ridiculed the claim by the plaintiffs that the Commerce Clause of the Constitution did not permit Congress to require Americans to buy insurance. The scholars could not have been more wrong. The courts did seriously the arguments against the ACA. A majority of the Supreme Court accepted the plaintiffs' argument that the individual mandate was not a proper regulation of interstate commerce and just five of the nine justices accepted that the individual mandate could be sustained as a tax. Seven out of nine justices held that the Medicaid expansion as structured was unconstitutional. Judges often complain that academics are too removed from the work of courts. The ACA litigation was a vivid example of the failings of professional scholars.

A third observation is that the experience with the ACE illustrated the deep divisions within American society over the proper role of government. No Republican voted for the law in Congress; Republican presidential candidate Mitt Romney vowed to repeal the law if elected. Neither the Supreme Court's decision nor President Obama's reelection represent the end of disputes over the ACA because the United Sates remains a sharply polarized nation. Additional court cases have been filed challenging other provisions of the ACA. Republicans control the House of Representatives and will have opportunities to undermine the operation of the ACA, in particular by refusing to authorize funding on which the ACA depends. Many states will refuse to go along with implementing provisions that require the cooperation of state governments. Many Americans also remain opposed to the law. Given these political realities, whether the ACA will succeed in controlling costs of healthcare and getting all Americans covered by a healthcare plan remains an open question."