Touchdown for Health Insurance

Imagine you are the quarterback for the Baltimore Ravens. With five seconds on the clock and five yards to go, you just got tackled by a 350 pound linebacker, fumbled the football, and saw an opposing player pick it up.  And then you dusted yourself off, stood up, and cheered like crazy.  

While you were flat on your back and couldn’t see anything, a Raven stripped the ball from the other player, lunged towards the goal line, and scored a touchdown as the final buzzer ended the game. That exactly how I felt last June 28.

Six months earlier, I mailed to the Court two briefs—another fancy legal word for “written arguments”—that asserted that the federal Affordable Care Act, dubbed "Obamacare" by its critics, was entirely consistent with the U.S. Constitution. The Court shot down both of my arguments. And I was delighted.

So where’s the unseen touchdown?

Back in the winter, I had argued that the law’s requirement to expand the Medicaid program for low-income people, so as to cover adults who live without kids, was a valid exercise of Congress’ power under the so-called Taxing-and-Spending Clause of the Constitution. Yes, states had to make their Medicaid programs much bigger, but it wouldn’t cost them much because Congress provided nearly 100% funding. So, I argued no fiscal harm, no constitutional foul.

The Court said no. Forcing the states to swallow such a big expansion of Medicaid—even if Congress shelled out nearly 100% funding—crossed a “power line” between the states and the federal government that the Constitution didn’t allow Congress to cross. OK, so I lost that one.

My other argument was that Obamacare’s requirement that most Americans must obtain basic health insurance was a valid exercise of Congress’ power under the so-called Interstate Commerce Clause of the Constitution. Failing to obtain health insurance, I maintained, shifted billions of dollars from those who failed to buy insurance onto those who did buy insurance, a giant cost-shift that messed up the U.S. economy. Congress, I argued, could regulate this situation by insisting that all of us must get health insurance…or pay a penalty if we fail to do so.

Again, the Court said no. Failing to obtain health insurance was inactivity, the Court decided. Congress had no more power to regulative inactivity than it had power to force people to eat broccoli. Only economic activity could be regulated under the Commerce Clause. Ok, so I lost that one, too. Except… Except the Court then went on to say: Although Congress lacks the power to require most everybody to obtain health insurance under that one part of the Constitution, Congress does have the power to impose taxes. The law’s  penalty for failing to obtain health insurance is really a tax. Like other taxes, this tax is constitutional. Touchdown!

The very heart of the Affordable Care Act—the requirement that everyone must have health insurance or pay a (let’s call it a) tax—was valid. Only the reason for the core provision’s validity was different.

So, like the Ravens quarterback who crawled back onto his feet to see that a football disaster had miraculously turned into a game-winning touchdown, I realized as I finished the Court’s decision that my “team” had won. The two briefs I submitted were not just my own work. I was part of a team—including a researcher, a law student, and another lawyer.

Our team had worked for weeks, often after midnight and on weekend, to write the best possible arguments we could make to the Supreme Court.

We were proud of our work.  We were also stunned when the Court shot down all our arguments—arguments, I should add, that dozens of other lawyers, including the top lawyer for the U.S. Department of Justice, also made. But we were ecstatic about the result. Our pride was a little injured. Every lawyer likes to win both the argument and the case.

But with the sole exception of the no-longer-valid requirement for states to expand Medicaid, the rest of the Affordable Care Act was Constitutional. Touchdown!  Obamacare wins!  Game over…at least for now.