Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House. To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for – to cover adults with incomes up to 133% of the poverty level, and (2) refundable tax credits for families earning up to 400% of the poverty level to subsidize purchases of private health insurance. The Medicaid expansion includes a federal requirement that states expand their coverage to meet the new, higher income threshold or face the potential withdrawal of all federal Medicaid funds. Private insurers are required to take all applicants, regardless of their health, and are prohibited from increasing premiums based on preexisting medical conditions. The ACA also contains an individual mandate, which requires adults not covered by government-sponsored or employer-provided health insurance to purchase health-insurance coverage or pay a penalty. Seven minutes after the President had put down his pen signing the ACA into law, thirteen states filed lawsuits challenging the constitutionality of both the individual mandate and the Medicaid expansion. Another thirteen states and several individuals and organizations, including the National Federation of Independent Businesses (NFIB), soon joined as plaintiffs. After decisions had been rendered by several courts of appeals, the case came to the Supreme Court in an appeal from the decision of the Eleventh Circuit Court of Appeals. The Eleventh Circuit had struck down the individual mandate as exceeding Congress\u27s powers under the Commerce Clause and failing to qualify as a tax authorized by Congress\u27s power to tax and spend for the general welfare. That court upheld the Medicaid expansion, rejecting a claim that it was an unconstitutional attempt to coerce states into implementing and helping finance a federal program. The court found that the individual mandate was severable from the rest of the statute, which it upheld. The Fourth, Sixth, and District of Columbia Circuits had reached different conclusions