Affordable Care Act decision: Hundreds gathering in front of Supreme Court before contentious vote

The U.S. Supreme Court justices won't offer their take on the constitutionality of one of the most contentious laws in the land, President Obama's Affordable Care Act, until 10 a.m., but already hundreds have gathered on the sidewalk outside the courthouse to voice their opinions.

There are men dressed in Revolutionary War garb, flag waivers and belly dancers. One chant can be heard from a block away, "Hey, hey, ho, ho the Constitution is here to say," which apparently is being shouted in opposition to the law and in a play off a similar, but rhyming chant by supporters. The flags include the Gadsden flag depicting a coiled rattlesnake and emblazoned with the "DONT TREAD ON ME".

The case is one of the most watched in at least a decade, with implications for both the presidential election and for the role of Congress.

The state of Florida is the lead challenger, with 25 other states suing to stop the law.

The court has been asked to decide whether Congress had the power to require virtually every American to buy health insurance or face a penalty.

The part of the law, known as the individual mandate, is deeply unpopular. A recent Reuters poll found that 61 percent of Americans oppose that notion.

But the law as a whole has divided Americans. It contains many provisions that people do like, such as banning insurers from refusing to cover people who are already sick and allowing parents to keep young adults under age 26 on their health insurance plan.

The pre-existing condition ban, for example, gets the support of 83 percent of respondents in the Reuters poll.

If the court strikes down the purchase requirement, it could decide whether to keep some of the more popular parts of the law.

The law also seeks to add more Americans to the Medicaid roles at a time when unemployment is high and many Americans have lost their health insurance along with their jobs.

States, including Florida, have opposed the expansion, arguing that the federal government is coercing them by threatening to take away other Medicaid funding if the states do not agree to lower the eligibility bar. That is, despite the fact that the federal government will pay for 90 percent of the new costs.

The court's ruling could set a new line further defining the powers of Congress. Opponents have said that lawmakers reached too far in trying to solve a national problem by forcing people who don't want insurance to buy it.

The decision will undoubtedly shape the presidential election. Obama spent nearly 18 months pushing for the health care law at a time when opponents say his efforts would have been better spent improving the economy and creating more jobs. If the law is struck down, the president will lose his biggest legislative achievement – just in time for voters to decide whether they want him to remain in office.

People on both sides of the law are already outlining strategies anticipating the court's decision.

Gov. Rick Scott said this week that if the Supreme Court doesn't throw out the federal health care law then the effort to repeal needs to start again, for economic reasons.

"What we passed is something that's going to be very bad for patients, very bad for companies, very bad for taxpayers," said Scott who led a group that advocated against the law when President Obama proposed it. "So I'm very optimistic that the Supreme Court will declare it unconstitutional, and if not, it needs to be repealed," Scott said.

Question 1:

Does the Anti-Injunction Act prevent the Supreme Court from deciding this case now.

Under this law, Americans are not permitted to challenge a tax law until they have been hit with the tax penalty. The idea is to prevent citizens from challenging a law merely to avoid paying a tax.

Under the health care law, most Americans must buy health insurance by 2012 or pay a penalty when they file their taxes in 2015. The court could decide the penalty is a tax and say it cannot rule on the merits of the challenges until someone had been made to pay the penalty. Most experts, however, believe the court did not devote three days and more than six hours of arguments, to put off making a decision now.

Question 2 :

Commerce Clause

Does Congress hold the power under the Constitution's Commerce Clause to mandate the purchase of health insurance? And does Congress have the power to assess a fine against those who refuse to buy it.

This question addresses one of the oldest concepts American law: that Congress' power has limits and that the U.S. Supreme Court gets to decide where to draw the line.

Opponents have suggested the law is an unprecedented power grab by Congress. They also say that people who are not buying insurance are not engaged in commerce and cannot be required to.

The law's supporters, however, note that the court's view of Congress power has expanded over decades. They also say that health insurance is a unique market in which even the decision not to buy insurance can

drive up the price for others.

Question 3:

If the requirement to buy insurance is struck down as unconstitutional, can other provisions of the law be severed from it and stand on their own.

This question will only come before the court if it removes the key provision of the law. Deciding this question could force the court to try to determine Congress' intent. Would it have passed the law without the mandate and kept the part of the law prohibiting insurance companies rejecting applicants who are already ill – and therefore expensive to insure?

The court heard various arguments about where to draw the line, all the way from the suggestion that they throw the entire law out to the idea that they keep everything but the mandate.

Question 4:

Does the Affordable Care Act unconstitutionally coerce states into expanding Medicaid even when Congress pays for much of the expansion?

State leaders, including Florida's attorney general and governor, have argued that the law puts a gun to their head by requiring them to spend millions to offer more people Medicaid or risk billions of dollars in Medicaid funding.

The federal government has long included a provision in Medicaid laws allowing it to revoke funding if states do not meet federal demands to expand the program in various ways over the years. States have not typically found this requirement coercion, but they now argue that Medicaid funding accounts for so much state funding that the federal government is unfairly threatening their budgets if they don't add more people to the Medicaid roles.

The justices must decide whether asking states to pay as much as 7 percent of the costs of the expanded program or lose all funding is too much to ask. States say the law threatens their sovereignty.

Key questions justices will answer

1. Can the court even consider the law now?

2. Does Congress have power to require health insurance for everyone?

3. If not, can the rest of the law stand?

4. Does likely Medicaid expansion illegally coerce the states?


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