Is the Affordable Care Act constitutional? Experts weigh in

March 12, 2012

The Patient Protection and Affordable Care Act signed into law by President Barack Obama goes before the U.S. Supreme Court for oral arguments the last week of March. The provision of the act under scrutiny is the requirement for all Americans to carry health insurance. Currently, as many as 50 million Americans don’t have health insurance, which means either they don’t get the healthcare they need or can’t pay for it. Then, the costs are spread to those with insurance and to the federal government.

The controversy arises in that it would mean an expansion of federal authority, forcing people to buy something they might otherwise not want. Those arguing against the individual mandate to buy health insurance ask: If the legislation is enacted, what, then, can’t the government force its people to do?

A closer look at the Constitution

Emory Law School interim Dean Robert Schapiro, a federalism and constitutional law expert, says there are constitutional justifications for the bill. One is the authority to regulate interstate commerce. But does that include forcing people to buy health insurance? Schapiro believes so, but the court may take the opportunity to draw the line on the limitations of federal authority.

“Under existing law, it seems that this is a regulation of interstate commerce,” he says. “But, the court might take this occasion to change that to say that even if this is economic activity, it just is too intrusive to force people to buy something. The court may decide that this is the case in which it’s going to impose a new limit on the power of the national government.”

Details from a SCOTUSblogger

Kedar Bhatia, second-year Emory Law School student and SCOTUSblogger, says the complexity of this case is already forcing the Supreme Court to do something rare. Usually, a case gets one hour of oral arguments before the justices. The Affordable Care Act is getting five-and-a-half hours. Bhatia believes that by the end of the arguments we may know which way the justices are leaning.

“Typically after an hour of oral argument in a normal case, people who watch oral arguments or follow the case can usually predict with a high degree of certainty how justices will decide a case,” Bhatia explains. “With five-and-a-half hours all specifically allocated to each part of the opinion, it seems especially likely that after March we’ll have a good idea of what’s going to happen.”