The U.S. Supreme Court, in answering questions surrounding the nation’s new health care law, will reveal as much about its newest members as it does about the constitutionality of the law itself.

And the most controversial aspect of the health care law may not ultimately produce the most important ruling.

Before it all ends, expect additional pressure from groups on the left and right who seek recusals by justices Antonin Scalia, Clarence Thomas and Elena Kagan, in hopes of gaining some edge in the final outcome.

The Roberts Court has yet to show the same eagerness for federalism questions that clearly energized the late Chief Justice William H. Rehnquist and most often ended in 5-4 rulings. But wrapped up in the mammoth Patient Protection and Affordable Care Act (ACA) are questions aplenty about the role of the federal government vis-à-vis the states.

The justices on Nov. 14 agreed to decide four issues triggered by the law’s enactment. They chose as the vehicle a ruling by the U.S. Court of Appeals for the 11th Circuit in a suit brought by 26 state attorneys general, the National Federation of Independent Business and two private individuals. That appellate court was the only one of four to strike down the law’s linchpin — the minimum insurance coverage requirement, the so-called individual mandate.


A threshold question involves whether the Court can even get to the heart of the controversy over the new law — the individual mandate.

A panel of the U.S. Court of Appeals for the 4th Circuit and one judge on a District of Columbia Circuit panel ruled in separate challenges that the Anti-Injunction Act, which dates to 1867, bars review of the ACA lawsuits. The Anti-Injunction Act prohibits suits challenging taxes before the taxes have been applied. The ACA imposes a tax penalty on individuals who do not purchase health insurance, but that penalty would not show up on tax bills until 2015.

Alan Morrison, associate dean of George Washington University Law School, is credited with bringing the jurisdictional issue to the fore. He recruited two former Internal Revenue Service commissioners, Mortimer Caplin and Sheldon Cohen, to file a brief arguing that the challenges to the law could not go forward. “The reason for the law is the orderly administration of the tax laws. It’s a very important principle,” said Morrison, arguing that chaos would result if taxpayers could forestall paying taxes by challenging tax laws in court.

The justices have granted an hour of argument time on the Anti-Injunction Act. If the justices get over that jurisdictional hurdle — which both the federal government and the challengers agree they should — they can move on to the merits of the constitutional challenge to the individual mandate.

The challengers contend that, in imposing the mandate, Congress exceeded its authority to regulate interstate commerce and to tax and spend for the general welfare.

In 1995, the Rehnquist Court in U.S. v. Lopez ended decades of deference to Congress’ expansive commerce clause powers when it struck down the federal law prohibiting possession of a gun in a local school zone. Five years later, the Court in U.S. v. Morrison struck down the civil remedy provisions in the federal Violence Against Women Act. In both cases, a five-justice majority found no connection between the challenged provisions and commerce. Still on the Court from the majority in those two cases are justices Scalia, Anthony Kennedy and Thomas.

The pendulum swung back a bit in 2005, when a 6-3 Court ruled that Congress did not exceed its commerce clause authority by prohibiting the intrastate cultivation of medical marijuana, despite state law to the contrary. Scalia and Kennedy joined the dissenters in Lopez and Morrison to form the majority in Gonzales v. Raich.

Tea leaf readers look to the Roberts Court’s most recent federalism ruling for insights into how the justices may view the individual mandate. In U.S. v. Comstock, a 7-2 majority in 2010 held that the necessary-and-proper clause grants Congress the authority to enact a federal law providing for civil commitment of sexually dangerous prisoners beyond their release dates. The Court rejected an argument that the federal law violated the 10th Amendment by invading state sovereignty.

Chief Justice John Roberts Jr. signed on to Justice Stephen Breyer’s majority opinion in Comstock, noted professor Steven Schwinn of The John Marshall Law School. “I think that tells us something about where the chief justice’s head is,” he said.

The justices will hear two hours of argument on the mandate. If they decide the mandate is unconstitutional, they face the next question: Can the mandate be severed from the law or must the whole law fall? The lawyers will get 90 minutes to argue the severability issue.


The fourth and last question in which the justices granted review has been called the most surprising and perhaps potentially the most significant.

The state attorneys general challenge the ACA’s provisions expanding the federal-state Medicaid program providing health care for the poor and disabled. They claim that Congress exceeded its authority under the Constitution’s spending clause. They risk losing all federal Medicaid funds if they do not participate — an unconstitutional condition that coerces them into participating, they argue.

“All the circuits that have examined coercion say either the theory doesn’t exist or doesn’t apply,” said health law scholar Timothy Jost of Washington and Lee University School of Law. “It’s surprising the Supreme Court reached out really far to get that question. Any time a state decides it doesn’t like a condition, it could bring a claim of coercion. Maybe they are taking cert to settle the question so it doesn’t come up again.”

Under the health law, Medicaid expands to cover all adults younger than 65 with household incomes below 138% of the federal poverty level beginning in 2014. The U.S. Department of Health and Human Services estimates the provision will cover an additional 16 million Americans. The federal government will pay 100% of the cost of the expansion for the first three years and the states then will pay no more than 10% of the cost.

Jost and others note the coercion theory stems from the Supreme Court’s 1987 ruling in South Dakota v. Dole. In that case, states challenged the requirement that they raise their drinking age to 21 as a condition of receiving federal highway funds. They argued the condition violated constitutional limits on Congress’ spending power. The Court, however, ruled that, incident to its spending power, Congress may attach conditions on the receipt of federal funds. One limit on the power, said the Court, is that it must be in pursuit of the general welfare.

Schwinn said the grant of review on the Medicaid question is, “in some ways, a real mystery to me.” The Medicaid provision, he suggested, may push the envelope on the decision in Dole and Congress’ spending power. The Court may want to test the limits of that ruling. But, he added, the principle that Congress can impose conditions on the receipt of federal funds is “so deeply embedded in our jurisprudence” that the reliance interest alone counsels against the Court “monkeying around with it.”

If the Court does revisit or revise the principle, the impact would be felt across a broad swath of programs and laws — from health care to transportation to civil rights.

The Medicaid issue is “the sleeper, the really critical issue in the case,” said James Blumstein of Vanderbilt University Law School. Blumstein, who filed an amicus brief in the 11th Circuit challenge, said the law’s changes in Medicaid are an unfair modification of a pre-existing contract and also amount to coercion. States face financial ruin, he said, if they don’t comply because they still have obligations under their state laws to provide services and they will no longer qualify for federal funds.


While the justices quietly go about preparing for arguments, some conservative and liberal groups continue to seek recusal of Kagan, Scalia and Thomas because of perceived conflicts of interest. Kagan is being targeted because of her role as solicitor general during and after passage of the law in 2010. Scalia and Thomas are targeted because they attended a fundraising dinner whose sponsors included the law firm representing the law’s opponents. In addition, Thomas is targeted because of his wife Virginia’s involvement with conservative groups opposing the law.

But a number of judicial ethics experts have said that, in their opinion, there is no basis for recusal.

Echoing those opinions, Jeffrey Shaman of DePaul University College of Law said last week that, in Kagan’s case, it is not uncommon for judges to begin their jobs with a history of some connection as legislators or members of the executive branch to issues that may come before them. “Before they join the bench they make all kinds of comments about things, they work on legislation, make speeches and comments,” Shaman said, but that does not disqualify them from serving.

In the case of Thomas, Shaman said, recusal could be a bigger issue if he benefited financially from, say, someone who lobbied against the health care law. But his wife’s outspokenness about the issue is not a problem, in Shaman’s view. “Twenty-five years ago, they might have said judges should control their wives. But she has a right to her own life.”

Marcia Coyle can be contacted at Tony Mauro can be contacted at