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PPACA-"Cert. Worthy"

In accordance with the briefing schedule issued last December, initial briefs have been filed with the U.S. Supreme Court for its judicial review of certain issues under the Patient Protection and Affordable Care Act of 2010 (“PPACA”).  The issues to be reviewed by the Court include whether (i) the minimum coverage provisions under PPACA and individual mandate to buy health insurance is a valid exercise of Congress’ power under Article I of the U.S. Constitution, (ii) the Anti-Injunction Act will prevent a ruling from the Court until such time as a tax is actually collected under PPACA, (iii) the individual mandate, if found unconstitutional, is severable from PPACA so that the law’s other provisions can be upheld, and (iv) Medicaid expansion is constitutional.

In its Brief for Petitioners (Department of Health and Human Services et al. v. State of Florida et al.) concerning the constitutionality of the minimum coverage provision and individual mandate under PPACA, the Obama Administration argues that the minimum coverage provision is within Congress’ power to enact because it is a “necessary component of a broader scheme of interstate economic regulation”. Further, “within that scheme, the provision itself regulates economic conduct with a substantial effect on interstate commerce, namely the way in which individuals finance their participation in the health care market”. The Brief argues that a “point-of-sale” requirement would not have been a feasible alternative in light of the realities of insurance needing to be purchased in advance and the legal duty for emergency care to be provided regardless of ability to pay.  In addition, the Brief argues that Congress’ taxing power also provides support to uphold the minimum coverage provision since the practical operation of the minimum coverage provision is as a tax law where non-exempt federal income taxpayers will have increased tax liability for months in which they fail to maintain minimum coverage for themselves or their dependents.  Respondents arguments are due to be filed on or before February 6, 2012.

The U.S. Supreme Court will hear arguments on these issues in March over a three-day period commencing March 26th.  Before reaching the minimum coverage and individual mandate debate, the Court will need to determine if the Anti-Injunction Act will prevent a ruling until 2014 when the provisions actually take effect and a tax is imposed.  It is anticipated that if this hurdle can be surmounted, the Court may issue an Opinion on the constitutional issues this June.  Undoubtedly, this will be an important decision to watch.