Later this month, the constitutionality of the Patient Protection and Affordable Care Act, otherwise known as "Obamacare," will be argued before the United States Supreme Court.
The statute, enacted by a narrow Democratic majority in both houses of Congress, contains hundreds of provisions purportedly designed to provide medical coverage for all Americans and reduce the total cost of care.
One controversial provision of Obamacare requires each and every American adult without health insurance to buy it or pay a fine for not doing so. This has become known in legal and political circles as the "individual mandate."
Supporters of Obamacare claim that the individual mandate passes constitutional muster. Congress has broad authority, they say, to enact laws that "regulate interstate commerce" and levy taxes. For example, Congress can impose regulations on businesses, declare certain activity illegal and impose taxes and fees on certain activity.
Since health care is one of the largest segments of the U.S. economy, supporters contend, Congress has the authority to order private citizens to spend money to insure themselves and/or penalize those that refuse.
Critics of Obamacare claim that nothing in the Constitution allows Congress to require a person to purchase something. Stated differently, a person that chooses not to purchase insurance, they contend, is doing nothing that can be regulated by Congress.
As one law professor stated in the New York Times, "all of the Supreme Court cases upholding Congress' power under the Constitution's interstate commerce clause have involved Congress regulating some kind of activity that is already occurring … Parsing a distinction between activity and inactivity provides a way for the justices to strike down the individual mandate without having to overturn any precedent [that suggests that Congress' power to regulate commerce is fairly broad]."
One interesting twist to the debate concerns something called the Tax Anti-Injunction Act on 1867.
Never heard of it? Don't worry, most lawyers haven't heard of it either.
The Tax Anti-Injunction Act states, in essence, that a person may not challenge a law imposing a tax unless and until the tax is actually imposed. In the case of Obamacare, one federal court -- the Fourth Circuit Court of Appeals -- has held that the individual mandate is, in fact, a type of tax. Since the Act is not slated to become effective until 2014, no person can challenge the constitutionality of the Act because no person has been subjected to a fine or tax for failing to purchase insurance. This means all the legal challenges to Obamacare are premature.
Some commentators believe that a majority of the Supreme Court may adopt
the reasoning of the Fourth Circuit and hold that the Tax Anti-Injunction Act bars anyone from challenging Obamacare for at least two more years. This would, these commentators argue, allow the Court to steer clear of issuing a ruling that might directly impact the outcome of a presidential election.
Another issue scheduled to be argued in the Obamacare case is whether elimination of the individual mandate would render the entire statute unconstitutional. Federal courts that have addressed that particular question are split. Interestingly, some supporters of Obamacare argue that the individual mandate is an essential part of the law, and cannot be pulled out without unraveling the entire statute.
The Obamacare oral arguments, scheduled to take place on March 26, 27 and 28, seem to be the most anticipated arguments since the attorneys faced off in Bush v. Gore back in 2000. The Court is going to hear arguments on all the key issues - namely, whether Obamacare is constitutional, whether a finding that the individual mandate is unlawful would require the entire statute to be thrown out, and finally whether the Tax Anti-Injunction Act renders the challenges to the law premature.
The Court does not allow arguments to be broadcast on television, but audio recordings and transcripts of what is said will be available promptly. No doubt, millions of Americans will be listening.