NEJM Article Argues Split Supreme Court Saved Most of ACA, but Left Unsettling Constitutional Questions.

The Supreme Court’s decision upholding the core of the Affordable Care Act gives the federal government “remarkably broad” powers to tax people “for doing nothing,” while also limiting its power to impose conditions on federal funding that is offered to the states, three BU School of Public Health professors argue in The New England Journal of Medicine.

Wendy Mariner, Leonard Glantz and George Annas, professors of health law, bioethics and human rights at BUSPH, say that instead of attempting to limit the federal government’s power to regulate interstate commerce, the Supreme Court “seems to have expanded federal power to tax people for ‘doing nothing,’ the primary fear that brought this case to court.”

The ‘doing nothing’ issue emerged as central to the Court’s decision to uphold the ACA mandate requiring all individuals to have insurance, or else face penalties. A majority of the Court rejected the government’s argument that the mandate was authorized under the Commerce Clause, with Chief Justice John Roberts instead finding another way to approve the mandate — by calling the penalty a tax.

“It was not surprising that the Chief Justice found no Commerce Clause authority for the individual mandate. The surprise was that he saved the individual mandate by determining that it was a constitutional tax,” Mariner and her colleagues wrote. The rationale used by the Court was broad enough to permit Congress to tax people for not buying broccoli, the professors said — in essence regulating people “in a way the Court said was beyond the power of Congress to regulate ‘inactivity’ under the Commerce Clause.”

“Remarkably, the Court left the broad powers Congress has under the Commerce Clause exactly the same as they were prior to this case,” Annas said. “It just refused to expand them further.”

Beyond allowing the government to tax for inaction, the “most unsettling” aspect of the Court’s decision was its conclusion that the federal government could not pull existing Medicaid funds from states that failed to comply with new rules expanding Medicaid eligibility, the professors said.

They questioned the Court’s characterization of the federal government’s power to withhold federal funding to non-compliant states as “coercive.” The Court has approved withholding federal funding to states in other instances of non-compliance. For example, they said, Congress has restricted eligibility for full federal highway funding to those states that have laws setting the minimum drinking age at 21. But in this case, the Court ruled that penalizing states by withholding funding would be coercive, Mariner and her colleagues noted.

“The Court had never before found a federal spending program to be coercive, and most scholars believed coercion to be an illusory standard that the Court would not apply,” they wrote. “It is remarkable that the Court could conclude that states have no choice but to accept the new Medicaid conditions with their Medicaid funding. While federal funding provides an incentive for states to participate in a federal program, it is hardly a ‘gun to the head,’ as the Chief Justice called it.”

The professors said while the immediate effect of the Court’s decision would be to remove roadblocks from most of the ACA’s implementation, the broader significance of the case was to be found in the Justices’ views of the proper roles of the state and federal governments.

To read the full NEJM article, go here.

Submitted by: Lisa Chedekel

chedekel@bu.edu