The United States Supreme Court heard oral arguments last
week on the following questions with respect to the Affordable
Care Act:
• Whether the Anti-Injunction Act will prevent the Court
from hearing challenges to the individual mandate
provision until the time that penalties are actually
assessed;
• Whether the individual mandate is an unconstitutional
exercise of Congress’ power to regulate commerce;
• Whether and to what extent the remaining provisions
of the Affordable Care Act can survive if the individual
mandate is deemed unconstitutional; and
• Whether the expansion of Medicaid is an
unconstitutional burden imposed by Congress on the
States.
While the questions from a particular Justice do not always
indicate his or her thinking on a matter, observers feel
there is a fair possibility that the conservative Justices
will stick together and find the individual mandate to be
unconstitutional. Unfortunately, there was no clear indication
based on the questions posed regarding what would then
happen to the remainder of the law. The Court is expected to
make a decision by the end of June. In its decision, we can
expect the Court to:
1. Do nothing for now and wait to hear the issues until the
actual penalties are assessed in 2015;
2. Uphold the entire law, including the individual mandate;
3. Strike down the individual mandate and hold that the
remainder of the law stands; or
4. Strike down the individual mandate and hold that some,
but not all of the law’s other features stand.
We will continue to keep you apprised of any new
developments.

Anti-Injunction Act
The first question dealt with by the Court was whether the
Anti-Injunction Act prevents it from hearing the case until after
penalties have been assessed under the Affordable Care
Act. During the oral arguments, all of the Justices seemed
skeptical that the Anti-Injunction Act applied to the individual
mandate. Most observers think the Court will not delay a
decision based on this.
Individual Mandate
The Court also heard arguments on whether the Commerce
Clause allows Congress to require individuals to purchase
private health insurance. According to observers, the Justices
appeared to split more along ideological lines. It is important
to note that Justice Kennedy, who is often the swing vote in
close decisions, appeared to have difficulty accepting the
line of reasoning that the mandate is within Congress’ limited
power to regulate commerce. Many experts are stating that
the chances of the Court finding the individual mandate
unconstitutional are 50/50 or slightly better. It seems that
Justice Kennedy, and possibly Chief Justice Roberts will be
the key votes on this issue.
What Happens to the Remaining Provisions if the
Individual Mandate is Deemed Unconstitutional?
The issue here is if the Court deems the individual mandate
unconstitutional, can it be removed from the law and the
rest of the law stand, or will the entire legislation fail? The
questioning by the Justices was not completely along
ideological lines and they seemed to struggle not only with
whether the rest of the law could stand, but also whether
individual provisions should be examined section by section.
It is not clear what the Court will do here, and it is again
likely that Justices Kennedy and Roberts will be key players
in making the decision. According to observers, neither of
them showed a clear inclination as to their thinking in their
questioning.
Medicaid Expansion
As many experts have predicted, it seems the expansion of
the Medicaid eligibility on the States by government will likely be permissible.