Bill O'Leary/WASHINGTON POST - The nine members of the Supreme Court pose for a photograph. Front row, from left: Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, Ruth Bader Ginsburg. Back row, from left: Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan.
White House is ‘confident’
The White House, which had called on the court to take the case now, has said that the challenges to the act are no different from those that faced Social Security, the Civil Rights Act and other major pieces of social legislation.
Interactive: A look at how the health-care law got to the Supreme Court and the issues in play
“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” said White House spokesman Dan Pfeiffer.
Senate Republican leader Mitch McConnell (Ky.) countered that polls consistently show that the legislation is unpopular. “This misguided law represents an unprecedented and unconstitutional expansion of the federal government into the daily lives of every American,” he said.
The Democratic-controlled Congress that passed the act said its authority was grounded in the Constitution’s granting of power to regulate interstate commerce and to pass laws “necessary and proper” to create a functioning federal government. Opponents said that power was never meant to require individuals to purchase a product — in this case, health insurance — that they do not want.
What the justices will do with the case is difficult to predict.
Most who follow the court believe that the four liberals are likely to agree that the power to “regulate commerce with foreign nations, and among the several states” naturally applies to health care, which accounts for more than 17 percent of the nation’s gross domestic product.
Justices Ruth Bader Ginsburg and Stephen G. Breyer have consistently agreed with an expansive view of the commerce clause; Justices Sonia Sotomayor and Elena Kagan have not yet considered a case that offered a substantial test.
It is more complicated on the other side of the court. Justice Clarence Thomas is the only member who has consistently voted for a limited view of the power. Justices Antonin Scalia and Anthony M. Kennedy have a more mixed record on the issue.
Roberts and fellow conservative Justice Samuel A. Alito Jr. have not telegraphed their views.
Conservative groups have called on Kagan to sit out the case because she worked for the Obama administration as solicitor general. Liberal groups have said Thomas faces a conflict because of the political activities of his wife.
But justices make their own decisions about whether they have reason to recuse themselves, and there was no indication from Monday’s order that either would miss the case.
Breaking the pattern
As soon as Obama signed the health-care bill, opponents raced to challenge it. The early court decisions followed a predictable pattern, with district judges appointed by Democratic presidents upholding the law and Republican appointees striking it down.
But at the appeals court level, that changed. In the 11th Circuit decisions, Judge Frank Hull, a Bill Clinton appointee, joined with a Republican colleague in saying that the “unprecedented” legislation went too far. They said that if the law were constitutional, it would be impossible to say what action on the part of the government would go too far.
At the U.S. Court of Appeals for the 6th Circuit in Cincinnati and the U.S. Court of Appeals for D.C. Circuit, two prominent Republican-appointed judges agreed that the law is intrusive but within Congress’s powers.
In Cincinnati, Judge Jeffrey Sutton, a George W. Bush appointee, was the deciding vote to uphold the act. Last week in Washington, Senior Judge Laurence Silberman, named to the bench by President Ronald Reagan, wrote an opinion saying that the question was political, not constitutional.
“It certainly is an encroachment on individual liberty,” Silberman wrote. But then — alluding to other cases in which the Supreme Court has ruled that the commerce clause gives Congress power — he added that “it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”
Even as the legal wrangling grows to a crescendo, some aspects of the law are already being enforced. Those include requirements that many insurance plans allow young adults to stay on their parents’ policies until age 26; cover a range of preventive services, including birth control, without imposing co-payments or other out-of-pocket costs; eliminate lifetime dollar limits on coverage; and begin phasing out annual caps.
Many insurers also are now barred from excluding children with preexisting conditions — a prohibition that will be extended to all individuals in 2014.
The three 11th Circuit cases accepted by the court are National Federation of Independent Business v. Sebelius; Florida, et al., v. Department of Health and Human Services; and Department of Health and Human Services v. Florida, et al.
Staff writer N.C. Aizenman contributed to this report.
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