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What’s up with the Affordable Care Act in 2012?


A number of readers commented about my last blog, “Politics 2012 style: Open, obscene, and
unmistakable.” One in particular, Larry, asked what I thought the leading contenders for election to president might do with the Affordable Care Act (ACA) of 2010, and which issues I think the Supreme Court must address in its ruling this spring. Believe it or not, there isn’t much going on among the candidates for president. Obama, we know, will continue with implementation of the ACA. Even though every Republican candidate for president has vowed to repeal the act, this seems like nothing more than campaign rhetoric. Here’s what both of the likely Republican nominees have said about the ACA.

Mitt Romney. Writer Adam Serwer of Mother Jones has called Romney “Obamacare’s most eloquent defender.” (http://motherjones.com/mojo/2012/01/romney-again-defends obamacare.) Speaking of the Massachusetts healthcare reform act (the blueprint for Obamacare) in the January 26 Republican debate, he said, “For the 8% of people who didn’t have insurance, we said to them, if you can afford insurance, buy it yourself, any one of the plans out there, you can choose any plan. There’s no government plan. And if you don’t want to buy insurance, then you have to help pay for the cost of the state picking up your bill, because under federal law if someone doesn’t have insurance, then we have to care for them in the hospitals, give them free care. So we said, no more, no more free riders. We are insisting on personal responsibility. Either get the insurance or help pay for your care. And that was the conclusion that we reached.” This is why I believe Mitt Romney is unlikely to do anything beyond minor tinkering with the language of the ACA.

Newt Gingrich. His position is a little more complicated. Blogger Morgen Richmond unearthed a May 2009 conference call, hosted by Siemens Healthcare, in which Gingrich unequivocally supported the individual mandate. The most hotly contested provision of Obamacare, it requires every American to buy health insurance. “We believe…that everyone must have health insurance,” Gingrich said. “Or if you are an absolute libertarian, we would allow you to post a bond, but we would not allow people to be free riders, failing to insure themselves and then show up at the emergency room with no means of payment.” Yet throughout the campaign he has said repeatedly that a federal mandate is “clearly unconstitutional.” Well, here you have it: Not only has Gingrich supported a federal health insurance mandate; he has also said clearly and unequivocally that such a mandate in unconstitutional. He has sworn to repeal Obamacare if elected president. As president, Gingrich most likely would tinker with a few provisions, probably those covering women’s care (specifically birth control and abortion), but nothing more.

Politicians may not change fundamental provisions of the ACA. However, the Supreme Court is quite another matter. In agreeing to hear Obamacare-related cases, the Court has said it will decide four questions that have arisen:

1.     Is it constitutional for Congress to require all persons to have health insurance
by 2014?

This is the most serious challenge by far. In general, Congress cannot make any laws unless the Constitution gives it the authority to do so. One of the most common powers relied on by Congress is the ability to “regulate Commerce… among the several states.”[i] The Commerce Clause-related challenges to the ACA’s individual mandate appear in several court cases, but figure most prominently in two circuit court cases: Florida v. U.S. Department of Health and Human Services (Florida v. HHS) and Thomas More Law Center v. Obama (Thomas More), where the Sixth and Eleventh Circuit Courts diverge on a number of points.

2.  If the individual mandate is found to be unconstitutional, is that provision severable from the remainder of the ACA?

Severability is the test used by a court to determine whether, once a portion of an act has been found unconstitutional, the entire act must fail as a result. Once the unconstitutional provisions have been cast aside, the test employed to make this determination consists of two parts: 1) whether the remainder of the statute could be fully operative as a law; and 2) whether the legislature would not have enacted those provisions which are within its power.

3.  Is it unfair to the states to force them to pay the extra cost of expanding the Medicaid program?

One of the main provisions of the ACA is to expand Medicaid by increasing eligibility for Medicaid to include people earning up to 133% of the federal poverty level. Under the Medicaid Act, the states must implement the expansion or lose some or all of their federal Medicaid funding, as decided by HHS. Several states claim that the Medicaid expansion violates a limitation on the use of federal dollars to force state regulation and constitutes unconstitutional coercion in violation of the Tenth Amendment. Because HHS has discretion as to the effect of a refusal to comply, it is impossible to prove beforehand that this discretion will be wielded in an unconstitutional manner. Once the provision is in effect, a state would have to refuse to implement the Medicaid expansion before it could successfully claim the federal response was unduly coercive. It’s unlikely any state will risk losing a substantial portion of its federal Medicaid funding. So, is this an unfair use of power.

4. Should a decision be put off until 2015, after the first taxpayers actually pay a penalty for not having health insurance?

In short, is the penalty for the individual mandate in effect a tax, which would mean plaintiffs seeking to challenge the mandate cannot do so until it goes into effect in 2014? The Anti-Injunction Act (AIA) specifies that federal courts do not have subject matter jurisdiction over suits seeking a pre-enforcement permanent injunction of a federal tax. This prohibition applies to challenges to the individual mandate if it is a tax for the purposes of the AIA. That is, if the Supreme Court determines that the individual mandate is a tax, challengers could not challenge that provision until 2014, when it goes into effect.


Some challenges brought against the ACA are stronger than others. However, constitutional scholars think the Supreme Court’s decision is likely to come down to its interpretation of how Commerce Clause jurisprudence applies to the ACA. With healthcare reform on the line (and with it a whole lot of opportunities for nurses), the Supreme Court’s decisions regarding the issues discussed will have far-reaching effects on access to health care as well as for just about everyone who works directly or indirectly in the healthcare system for years to come.

[i] The Commerce Clause gives Congress the
power “to regulate Commerce with foreign Nations, and among the several States,
and with the Indian tribes.” U.S. CONST. art. 1, § 8, cl. 3.


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