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Supreme Court Hears Oral Arguments in Case Challenging ACA

March 30, 2012—The Supreme Court March 26-28 heard oral arguments in Florida v. United States Department of Health and Human Services, the case filed by 26 states challenging the constitutionality of the Affordable Care Act (ACA, P.L. 111-148 and P.L. 111-152).  The Court agreed to hear arguments on four questions pertaining to the constitutionality of the ACA. The March 26 arguments concerned the applicability of the Anti-Injunction Act (AIA).  If found to be applicable, the AIA would lead the court to a decision that the individual mandate cannot be challenged until the requirement to pay for health insurance or incur a penalty occurs in 2014.  Few expect the Court to reach this conclusion.  March 27 was devoted to a consideration of whether the individual mandate is constitutional.  March 28 featured arguments on two issues.  In the morning, the Court considered what is known as severability, or what would happen if the mandate is declared unconstitutional: would the entire act fall or only parts of it? The afternoon was devoted to a consideration of whether the Medicaid expansions in the ACA are coercive on the states. 

Many observers noted that the Court is deeply divided on the individual mandate and believe that the votes of Justice Anthony Kennedy and Chief Justice John Roberts will be decisive. The conservative justices—Samuel Alito,  Antonin Scalia, and Clarence Thomas—appear aligned, as do the liberal justices—Elena Kagan, Sonia  Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer. 

Prior to oral arguments, the AAMC filed three amicus briefs before the Supreme Court:

  • A Jan. 13 brief arguing that the individual mandate is constitutional [see Washington Highlights, Jan. 20];
  • A Jan. 6 brief arguing that should the Court find the mandate to be unconstitutional then three hospital-related provisions that are inextricably linked to the mandate—reductions in disproportionate share payments, the readmissions program, and the productivity and market basket adjustments—also should fall [see Washington Highlights, Jan. 13]; and
  • A Feb. 17 brief arguing that the Medicaid provisions are not coercive. 

Some observers expressed surprised at the very tough questioning posed by the conservative justices to U.S. Solicitor General Donald Verrilli, who argued on behalf of the Obama administration that the Commerce Clause of the constitution allows Congress to impose the individual mandate.  Following the argument, many felt that the Court’s ruling on this issue is “too close to call,” while others were left believing there is a strong likelihood that the mandate will be struck down. 

A decision is expected by the end of June. 


Ivy Baer, J.D., M.P.H.
Senior Director and Regulatory Counsel
Telephone: 202-828-0499


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Washington Highlights, a weekly electronic newsletter, features brief updates on the latest legislative and regulatory activities affecting medical schools and teaching hospitals.

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Jason Kleinman
Sr. Legislative Analyst, Govt. Relations
Telephone: 202-903-0806