The Doctor’s Advocate | Second Quarter 2012
Politically Speaking

Supreme Court: PPACA Ruling Expected in June 2012

by Hal Dasinger, Vice President, Government Relations

Hal Dasinger

In late March 2012, oral arguments concluded before the U.S. Supreme Court regarding the challenges to the Patient Protection and Affordable Care Act (PPACA). Until the court issues a decision, probably in June 2012, we can expect more-or-less nonstop comment and analysis from all parts of the political spectrum. Amid all the noise from the 24-hour news cycle, the editorial pages, talk radio, and the commenters objecting to each other’s comments, the conversation is likely to stray far from the questions the court has been asked to decide. Those questions are set out here.

Oral arguments were split into three days, with each day devoted to a particular line of argument. The first day dealt with “standing,” which is the question of whether those suing to overturn PPACA had the right to bring their suits in the first place. In our federal courts, there are three main requirements. First, the party bringing the suit has to have suffered—or be about to suffer—some kind of harm. It does not have to be a physical injury; it could be an economic loss or even emotional distress. It could also be an intrusion into some basic right of the plaintiff. Second, the conduct the plaintiff complains of has to be the cause of the harm. Third, there has to be something the court can do about it if it decides in the plaintiff’s favor.

In the suits seeking to overturn PPACA, the conduct complained of most is often called the individual mandate—the provision that requires individuals to purchase insurance or pay a penalty. The problem is that no one has yet been required to make this purchase, because that provision of the law does not take effect until 2014. In prior cases, the court has held that persons suing over taxes have to pay the tax first before they have standing to sue. Whether this case falls into that category is part of the question. The court has to find that the plaintiffs have standing before they can go to work on the individual mandate.

The third day of oral argument was devoted to “severability,” which is the idea that even though one part of a contract or statute may be invalid, it doesn’t affect the rest. The invalid portion may be removed or ignored, and the remainder is still effective. Often, new laws will be written with so-called “severability clauses.” Here is one from a 2010 California ballot measure dealing with legislative term limits:

Sec. 4. Severability
The provisions of this measure are severable. If any provision of this measure or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

PPACA was enacted without any clause like this, so if the court decides to invalidate the individual mandate or any other part of the law, it will also have to decide whether that renders the entire law invalid.

Federal Power 
The main question presented to the court, argued on the second day, is whether Congress has the right to pass a statute like PPACA. Plaintiffs object to a variety of the law’s provisions, including the expansion of Medicaid, penalties for large employers who do not provide insurance, and the individual mandate. At the heart of their objections are the limitations on Congress’s power expressed in the U.S. Constitution, which in Article I gives Congress the power to regulate interstate commerce, and in the “Necessary and Proper” clause gives Congress the power to make laws necessary and proper to execute the powers enumerated in Article I. The court is being asked to rule whether PPACA goes beyond Congressional power to enact laws affecting interstate commerce. During questioning, one justice asked whether Congress actually sought to regulate inactivity, in the form of the failure of young, healthy adults to buy health insurance.

This case has the potential to determine not only the fate of PPACA but also the current parameters of power held by the states, Congress, the executive branch, and the judicial branch. That the decision will most likely be issued at the start of the general election season heightens the importance of this ruling, already being called the most significant since Bush v. Gore in 2000.

The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.

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The Doctor’s Advocate

Second Quarter 2012

Director's Forum
Electronic Health Record Risks

An Ounce of Prevention
In Pursuit of Quality: Embedding Patient Safety into Practice

Politically Speaking
Supreme Court: PPACA Ruling Expected in June 2012

Foundation News
2012 Winners of the Young Physicians Patient Safety Award

Southern California Physician Advisory Board Update

Seminars and Webinars to Meet Your CME Needs

The Back Page
Industry and Company News

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