For decades, the nation’s highest court has shied away from making any sweeping changes to the interstate commerce clause, a section of the U.S. Constitution that gives Congress the power to regulate commerce and has been used to help define a broad collection of laws, from civil rights to criminal and drug enforcement laws.
That could change Thursday when the U.S. Supreme Court is expected to release its decision on the Affordable Care Act, the signature piece of health care reform legislation passed under President Barack Obama.
The legal challenge to the law is based largely on the basis that health care insurance under the act would be required through an individual mandate, imposing penalties on people who did not purchase it.
Opponents of the law, portions of which have already taken effect, argue the mandate violates the commerce clause, because the federal government took too large a step in regulating the health insurance industry.
“Opponents are arguing the individual mandate is the lynchpin,” says Andrew Coan, an assistant law professor with UW-Madison and constitutional law scholar. “They are arguing if the mandate is ruled unconstitutional, the entire act must fall.”
Coan says the last time the U.S. Supreme Court imposed major limitations related to the commerce clause was in 1936 – and they were quickly abandoned in the face of massive political pressure.
Since then, the commerce clause has been interpreted very broadly by the court, with only minor judicial incursions at the margins, Coan says.
Thus, he predicts the court will make a narrow ruling on the Affordable Care Act, possibly only finding the individual mandate unconstitutional. Such a ruling “would not appear to threaten” much if any other legislation grounded in the commerce clause, he says.
That said, while the legal implications of the ruling could be slight, from a public policy standpoint, the ruling would be huge.
“It is difficult to think of more than a handful of other Supreme Court decisions in our history that had as big a direct impact as this case might,” Coan says. “It is unlikely to be another Brown v. Board of Education in terms of long-term legal implications, but the significance of portions or all of the law being struck down would be hard to overstate.”
Robert Kraig, executive director of Citizen Action of Wisconsin, an organization that supports universal health care, says should the court strike down the individual mandate, the whole idea of the Obama administration “giving ground” to the conservative movement in order to create bipartisanship should be called into question.
Kraig points out the Republican Party supported the individual mandate back in the 1990s as an alternative to former President Bill Clinton’s proposed health care reforms, after the concept was first introduced by the Heritage Foundation, a conservative public policy institute, in the late 1980s.
Republicans continued to embrace the individual mandate, Kraig says, on the premise that it rightly penalized people who took advantage of the health care system by not purchasing insurance but still expecting to receive medical assistance when they became ill or went to emergency rooms.
Once the biggest supporters of the individual mandate, Republicans quickly turned into its biggest foes once the concept was embraced by Obama and Democrats, Kraig notes.
“They have created such a backlash (against a policy they previously supported) that a right-wing-leaning court is poised to overturn key policies that the Republican Party supported for two decades until Obama supported them,” Kraig says. “It is a stunning situation.”
Neither Coan nor Kraig believes there are enough votes on the court for the entire law to be struck down.
Kraig agrees the most likely scenario is that portions of the law will be ruled unconstitutional, likely the individual mandate and the provision that insurance companies cannot deny people coverage based on a pre-existing condition.
Still, Coan says, even if the decision is framed narrowly, it "will send a signal that this court is newly serious about imposing real limits on federal power under the commerce clause.”
“I expect we will see more cases challenging the scope of federal power in other areas ranging from environmental to criminal law, he adds.