The Supreme Court has likely already made their decision on the constitutionality of selected provisions of the Affordable Care Act (ACA), but since we will not hear that decision until June, there is still plenty of time to speculate. There are two primary issues under consideration: the Individual Mandate and the expansion of Medicaid. Since it is May and we are in the middle of the Triple Crown, I’ll try to handicap the outcome.
Fortunately, I recently had the pleasure of listening to a Washington, DC lawyer and former law clerk to Justice David Souter speak on this topic at CareCore National’s 3rd Annual Healthcare Summit.
Most experts concur that the deciding vote will be cast by Justice Kennedy. Justice Kennedy gave mixed signals at one moment speaking of the “heavy burden of justification to show authorization under the Constitution” followed by agreement that a young individual not participating in the insurance marketplace affects the costs “in a way that is not true in other industries. That’s my concern in the case.”
The expansion of Medicaid is likely going to be less contentious as there is a long history of the federal government imposing conditions on federal dollars the states receive. Changing the drinking age to 21 was more about federal highway dollars than an alignment of conscience. Chief Justice Roberts was pretty clear when he said, “…it seems to me they have compromised their status as independent sovereigns because they are so dependent on what the Federal Government has done…they tied the strings, they shouldn’t be surprised if the Federal Government isn’t going to start pulling them.”
So…what are the odds? What are your thoughts on the future of the ACA?