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Michigan Law scholars weigh in
on health-care ruling

By John Masson
June 28, 2012

Michigan Law's community of legal experts is responding to today's Supreme Court decision upholding the Affordable Care Act as a proper outcome under the law.

"It's a good day for the rule of law," said Prof. Richard Primus, a constitutional law expert. "It's the right ruling. Two years ago, it was completely clear that this was constitutional. But opposition was so strong that a campaign was mounted, in the court of public opinion, to get it struck down as unconstitutional. And that didn't happen."

Regardless of your opinion on the ACA as a policy matter, he added, "that's a good thing."

Prof. Primus authored a paper earlier this year that argued the legal questions surrounding the so-called individual mandate were actually not very difficult at all, and should result in that portion, at least, of the law being upheld.

In the end, a narrow majority held that the individual mandate should be upheld under Congress' taxing power, not the commerce clause. But the court saw fit to address the commerce clause in an opinion written by Chief Justice John Roberts.

"The ruling on the taxing power is quite well done—it's legally smart and pretty responsible," Prof. Primus said. "The commerce stuff is deeply interesting, but there's no holding on that issue. Five justices say that the mandate is beyond the commerce power, and the Chief Justice does his lawyerly best to make it a holding, but it's better understood as dicta. I doubt it will decide future cases."

That dovetails with a point Prof. Primus made in a working paper earlier this year, "How The Gun-Free School Zones Act Saved the Individual Mandate."

One of his points in that piece: the importance among constitutional law scholars, including Supreme Court justices, of being able to say that there are things that are simply beyond Congress' powers.

"So this way, they can say 'This is beyond the commerce power' when they're talking about a law they're upholding on other grounds," Prof. Primus said. "They can have it both ways.''

While most legal experts agree the ruling was correct under the law, it didn't all go the Obama Administration's way, according to Prof. Sam Bagenstos, a civil rights expert who was the former number two official in the Justice Department's Civil Rights Division.

"The court's decision to uphold the individual mandate is a big win for the Affordable Care Act and the Obama Administration," he said. "But the court's Medicaid holding threatens to undermine the part of the Act that was expected to provide coverage for more than 15 million individuals."

By holding for the first time that a conditional federal spending program unconstitutionally coerces the states, Prof. Bagenstos added, "the court has created the prospect of a wave of new litigation challenging the conditions on cooperative federal-state programs in education, civil rights, and other areas."

Michigan Law Prof. Richard Friedman, a constitutional law expert who has argued before the high court, said the win appears very narrow in some respects.

"The fact that the Chief Justice formed a majority to uphold the law is not particularly surprising," Prof. Friedman said. "The fact that he did it under the tax power is."

Furthermore, Prof. Friedman said, Chief Justice Roberts has indicated the individual mandate is a penalty, not a tax, for the purposes of the Anti-Tax Injunction Act. Had the mandate been ruled a tax, the case the justices ruled on would have had to be dismissed, because the tax would have had to be collected before a case could be brought.

And by that time, undoing the law would have been very complicated indeed, Prof. Friedman said.

"So the Chief Justice steered through a very narrow opening," Prof. Friedman said.

Chief Justice Roberts' decision to assign the case to himself was also of interest to Prof. Friedman.

"Occasionally, a chief justice assigns a case to himself because he thinks it's so important that the chief ought to be the one writing," Prof. Friedman said. "That was true in Brown v. Board of Education and U.S. v. Nixon."

In this case, however, Prof. Friedman said that Chief Justice Roberts was also the crucial swing vote.

"One may suspect that his being the chief, and not wanting to be responsible for a massive intrusion into the democratic process, might have something to do with why he was the swing vote."

Prof. Friedman added that the opinion also provides a mystery or two, such as why, having upheld the mandate under the taxing power, Chief Justice Roberts found it necessary to also write on the commerce power.

"It is possible," Prof. Friedman said, "that, though he decided to cast his lot on the side of upholding this particular law, he also wanted to limit federal power to the extent that he could."

Constitutional arguments aside, a large lingering question is what effect today's court action will have on the delivery of actual health care, said Prof. Jill Horwitz, who has had appointments in Michigan's Law School, its School of Public Health, and its Ford School of Public Policy.

"The health care effect?" she asked. "It remains to be seen how many states now scramble to get their exchanges up and running."

We'll be updating this story frequently throughout the day, so please check back for updates, or check us out on Facebook or Twitter.

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