By: Iyad Afalqa*
June 27, 2012
Following the U.S. Supreme
Court’s upholding of a key portion of Arizona immigration law, all eyes are
fixated on President
Barack Obama’s signature policy achievement i.e. the Patient Protection and
Affordable Care Act (PPACA)— aka Healthcare Reform Law. The critics of this law
charge that it establishes an array of new entitlements, poor cost controls,
and overly imposing regulations on the health sector that comprises of
one-sixth of U.S. economy. Furthermore, they have raised profound
constitutional concerns — not only due to its sheer scope, but also because of
the authority it claims for the federal government.
Most
of the lawsuits challenging the reform act have focused on Section 1501 of the
statute, known colloquially as the "individual mandate" or
"insurance mandate." This section, which goes into effect in 2014,
will require nearly every American citizen either to maintain health-care
coverage or to pay an annual penalty submitted with individual tax returns. In some
cases, the penalty may be up to $750 per individual per tax year, subject to
inflation adjustments.
Again,
at the heart of this debate is the basic question of whether the constitution
really allows the United States government to compel its citizens to buy
insurance. Erwin Chemerinsky, a scholar of constitutional law and the founding
Dean of UC Irvine’s Law School, in a recent presentation explained that, “ The
most commonly cited authority for the individual mandate is the commerce
clause, located in Article I, Section 8, of the Constitution. This clause gives
Congress "power to regulate commerce...among the several States." He
further explained that this authority in turn, allows Congress to regulate two
general fields of activity; one that consists of the instrumentalities of
commerce — such as the phone lines, waterways, boats, rails, and train cars by
which interstate trade is conducted or shipped while the other consists of the
goods and services that are traded interstate.
So, what will happen? The speculators including
experts on constitutional law have argued five different scenarios for the
upcoming court ruling. One is for the court to uphold the entire law. Second,
to strike the individual mandate while keeping everything else intact including
the penalty. A third is to strike both the mandate and the penalty while
keeping other provisions. A fourth is to strike the mandate, the penalty, the
insurance reforms, but keep everything else in place. And fifth, to strike the whole law—in other
words, keep nothing.
If
the court would uphold the entire law as constitutional, this would obviously
be a clear win for President Obama. However, if the court would deem
the individual mandate unconstitutional and that it could not be separated from
the rest of the law (severability) it would leave more than 30 million people
who expected to be insured without recourse. This would be a bitter
sweet win for the Republicans as well, as they would be under immediate
pressure to offer the nation an alternative legislation to fix this increasingly
insurmountable healthcare crisis. Achieving the triple aim of higher Quality, lower Costs, and increased
Access to care would be an immensely challenging task especially in such a
bitterly divided Congress.
According to some experts, the current US Supreme Court make-up
is the most conservative since the 1930s.
In addition, being an election year, where Republicans are fiercely
pressing the issue of repealing the entire reform, it could be safely assume that
an intense debate on the said issue would continue regardless of the court’s
decision. On the other hand, since the reform measures are not fully applicable
until 2020, its full impact, beneficial or otherwise, is so slow in coming that
it no easily palpable arguments could be made in its favor in this age of
political expediency.
Iyad Afalqa is an
Executive Faculty Fellow at the UC Irvine’s Paul Merage School of Business,
where he is pursuing his Healthcare Executive MBA with focus on Healthcare
management, policy and strategy. Also, he is a board member of the Medical
Network Devoted to Service (MiNDS), a southern CA based charitable network of healthcare providers
caring for the uninsured
