Professor Foley on the Constitutionality of the Affordable Care Act

In the following opinion piece published in the June 30th edition of the Miami Herald, FIU Law Professor Elizabeth Price Foley assesses the Supreme Court decision on the constitutionality of the Affordable Care Act (ACA). The decision, says Foley, undermined the healthcare law even as it upheld it.

Elizabeth Price Foley serves as the Executive Director of the Institute for Justice Florida Chapter. She is also the Institute for Justice Chair in Constitutional Litigation and Professor of Law at Florida International University College of Law.

Healthcare act survives, but it’s a tattered quilt


The Supreme Court delivered a surprising and mixed opinion on the constitutionality of the Affordable Care Act (ACA). The most controversial provision of the Act — the so-called “individual mandate” to buy health insurance — was deemed unconstitutional as a regulation of commerce yet constitutional as a tax. The Act’s mandatory Medicaid expansion — extending coverage to an estimated 16 million poor individuals who can’t afford private insurance — was declared unconstitutional, allowing states to “opt out” of the expansion.

Upholding the individual mandate as a tax was the big shocker. No other lower court had ruled the mandate was sustainable as a tax, and supporters of the law — from President Obama to former House speaker Nancy Pelosi to Senate majority leader Harry Reid — had repeatedly and vigorously insisted that the ACA did not raise taxes.

Oral arguments at the high court spent virtually no time on the tax issue, and most constitutional law experts didn’t give it much serious thought, focusing on a much more difficult issue: whether Congress could use its commerce power to compel individuals to buy private products. In the end, those who opposed the mandate on Commerce Clause grounds were vindicated. But it is an odd, uncomfortable victory: Congress cannot directly force individuals to buy something, but it can tax them for not buying it.

The court’s invalidation of the Medicaid expansion was less shocking but equally important. Conceptually, the ACA is a two-legged stool for expanding access: One leg — the individual mandate — expanded access for about 16 million middle-class individuals by mandating they purchase health insurance. The other leg — the Medicaid expansion — expanded access for another 16 million poor individuals by forcing states to extend Medicaid to them. Recognizing the states’ sovereign right to opt out of an expensive Medicaid expansion effectively took a chainsaw to one of the ACA’s two legs, leaving a politically wobbly and unstable structure.

The net effect is this: Many poor individuals will remain uninsured because they live in states that will opt out of the expensive Medicaid expansion. And many middle-class individuals, faced with a choice between paying a tax of several hundred dollars or buying an insurance policy for several thousand dollars, will pay the tax and remain uninsured. The problem of the uninsured is far from solved, and the debate about how to solve this seemingly intractable problem is now thrown back to the federal and state legislatures.

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