Judicial Activism and the Affordable Care Act

Today, a judge in Florida issued a decision in a case filed by 25 Republican Attorneys General and Governors striking down the Affordable Care Act.   This ruling is well out of the mainstream of judicial opinion.   Twelve federal judges have already dismissed challenges to the constitutionality of the health reform law, and two judges – in the Eastern District of Michigan and Western District of Virginia – have upheld the law.   In one other case, a federal judge in the Eastern District of Virginia issued a very narrow ruling on the constitutionality of the health reform law’s “individual responsibility” provision and upheld the rest of the law.  

Today’s ruling – issued by Judge Vinson in the Northern District of Florida – is a plain case of judicial overreaching.   The judge’s decision contradicts decades of Supreme Court precedent that support the considered judgment of the democratically elected branches of government that the Act’s “individual responsibility” provision is necessary to prevent billions of dollars of cost-shifting every year by individuals without insurance who cannot pay for the health care they obtain.  And the judge declared that the entire law is null and void even though the only provision he found unconstitutional was the “individual responsibility” provision.  This decision is at odds with decades of established Supreme Court law, which has  consistently found that courts have a constitutional obligation to preserve as a much of a statute as can be preserved. As a result, the judge’s decision puts all of the new benefits, cost savings and patient protections that were included in the law at risk.

Under today’s view of the law, seniors will pay higher prices for their prescription drugs and small businesses will pay higher taxes because small business tax credits would be eliminated. And the new provisions that prevent insurance companies from denying, capping or limiting your care would be wiped away.

We don’t believe this kind of judicial activism will be upheld and we are confident that the Affordable Care Act will ultimately be declared constitutional by the courts.

History and the facts are on our side. Similar legal challenges to major new laws -- including the Social Security Act, the Civil Rights Act, and the Voting Rights Act -- were all filed and all failed. And contrary to what opponents argue the new law falls well within Congress’s power to regulate economic activity under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.

Those who claim that the “individual responsibility” provision exceeds Congress’ power to regulate interstate commerce because it penalizes “inactivity” are simply wrong. Individuals who choose to go without health insurance are actively making an economic decision that impacts all of us. People who make an economic decision to forego health insurance do not opt out of the health care market.  As Congress found, every year millions of people without insurance obtain health care they cannot pay for, shifting tens of billions of dollars in added cost onto those who have insurance and onto taxpayers.   There can be no doubt that this activity substantially affects interstate commerce, and Congress has the power to regulate it. 

The Affordable Care Act, through the individual responsibility requirement, will require everyone, if they can afford it, to carry some form of health insurance since everyone at some point in time participates in the health care system, and incur costs that must be paid for. For the 83% of Americans who have coverage and who are already taking responsibility for their health care, their insurance premiums will decrease over time.  Many of those who are currently struggling to pay for insurance will get a new tax credit. Only those who are able to pay for health insurance will be responsible for obtaining it. Because most people would voluntarily purchase coverage as it becomes more affordable and the policy exempts those for whom purchase would cause a financial hardship, the Congressional Budget Office estimated that only 1 percent of all Americans would pay a penalty for not having health insurance in 2016.  

The Affordable Care Act also bans insurance companies from discriminating against people with pre-existing conditions.   However, unless every American is required to have insurance, it would be cost prohibitive to cover people with pre-existing conditions. 

Here’s why:  If insurance companies can no longer deny coverage to anyone who applies for insurance – especially those who have health problems and are potentially more expensive to cover – then there is nothing stopping someone from waiting until they’re sick or injured to apply for coverage since insurance companies can’t say no.  That would lead to double digit premiums increases – up to 20% – for everyone with insurance, and would significantly increase the cost health care spending nationwide. 

We don’t let people wait until after they’ve been in a car accident to apply for auto insurance and get reimbursed, and we don’t want to do that with healthcare.  If we’re going to outlaw discrimination based on pre-existing conditions, the only way to keep people from gaming the system and raising costs on everyone else is to ensure that everyone takes responsibility for their own health insurance.  

Two federal courts and more than 100 constitutional scholars agree with these arguments. And representatives from important organizations like the American Cancer Society Action Network, the American Diabetes Association, the American Heart Association, the American Hospital Association and the American Nurses Association have all filed amicus briefs in similar cases supporting the Administration’s position. Event President Reagan’s Solicitor General Charles Fried has written, “the health care law’s enemies have no ally in the Constitution.”

In the end, we’re confident our arguments will carry the day and the health reform law will continue to make the health care system stronger for all of us.

Stephanie Cutter is Assistant to the President and Deputy Senior Advisor.