The Supreme Court Building in Washington, D.C., where the issue of the constitutionality of the PPACA will be decided.
Courtesy of Hemera\Thinkstock


Published 4/1/2012
Simit Pandya

States Take PPACA to the Supreme Court

Congressional briefing sheds light on legal arguments against healthcare reform law

Opponents of “ObamaCare” rejoiced in November 2011 when the U.S. Supreme Court decided to hear oral arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA) in March 2012, almost exactly 2 years after the passage of President Obama’s landmark healthcare legislation. Although the individual mandate has become a focal rallying point for both proponents and opponents of the legislation, many people are unaware of the other legal issues being considered before the Court or how the Court plans to hear these issues during oral arguments.

In February 2012, Rep. Michael C. Burgess, MD (R-Texas), chair of the Congressional Healthcare Caucus, hosted a briefing to discuss the legal arguments that PPACA’s challengers will present before the U.S. Supreme Court. The briefing included presentations by Karen Harned, JD, the executive director of the National Federation of Independent Business’ Small Business Legal Center, and Colby May, JD, senior counsel and director of the American Center for Law and Justice (ACLJ).

The National Federation of Independent Business is a plaintiff in one of two cases whose issues and arguments are being considered by the Court, while the ACLJ has submitted an amicus curiae (friend of the court) brief to the Court on behalf of 117 members of Congress and more than 103,000 other entities.

The panel primarily focused on the Court’s review of the constitutionality of the individual mandate, which requires individuals to have health insurance or face a tax penalty beginning in 2014. Also under consideration was the question of severability—whether the entire law would be unconstitutional if the individual mandate were struck down.

“An unprecedented duty”
According to Ms. Harned, the individual mandate imposes an extraordinary and unprecedented duty on Americans to enter into costly private health insurance contracts. She described the mandate requiring American citizens to purchase health insurance to help subsidize other members of society as an unconstitutional threat to liberty.

None of the constitutional sources of Congressional authority that the federal government has cited—the commerce clause, the necessary and proper clause, or the power of taxation—legitimize this use of unprecedented power to enforce the individual mandate, argued Ms. Harned.

The ACLJ’s Mr. May spoke in detail about the issue of severability. He affirmed that the individual mandate was unconstitutional and could not be severed from the rest of PPACA; therefore, he believed the entire law should be struck down with the individual mandate.

According to Mr. May, the legislative process for passing PPACA was evidence of legislative intent to bind the individual mandate with the entire bill. The “Affordable Health Care for America Act” (HR 3962), which the House of Representatives approved on November 7, 2009, contained a severability provision separate from the individual mandate provision. The Senate, however, consciously left out the severability clause in the final version of the bill.

Countdown to a decision
Mr. May also provided the following schedule of the upcoming oral arguments, which are spread over 3 days:

  • March 26—The U.S. Supreme Court will hear oral arguments on the anti-injunction clause and question whether a lawsuit can be brought against the individual mandate before the tax penalty goes into effect in 2014.
  • March 27—The Court will hear arguments on the constitutionality of the individual mandate.
  • March 28—The Court will hear arguments on the issues of severability and the constitutionality of the Medicaid expansion requiring states to cover individuals with incomes of up to 133 percent of the federal poverty level.

In total, the Court will spend about 5 hours listening to oral arguments on PPACA.

This challenge stems from State of Florida, et al v. Department of Health and Human Services, et al, a lawsuit brought by 26 states against the federal government. The case was initiated by the Florida Attorney General and argued that the reform law should be struck down because it relies on an unconstitutional expansion of federal power. On Jan. 31, 2011, U.S. District Judge Roger Vinson ruled that the individual mandate was outside the power of Congress. Because this provision could not be removed from the law on its own, he declared that PPACA was unconstitutional.

Two other district courts have also ruled against the individual mandate as an unprecedented expansion of federal power not supported by the commerce clause of the U.S. Constitution. However, three federal appeals courts have held that the individual mandate is constitutional.

According to Rep. Burgess, the Supreme Court will most likely issue a decision on the challenge before the end of its current term in June. He also asserted that conservative House Republicans are reviewing potential actions that can be taken if the Supreme Court does find the entire PPACA unconstitutional.

Simit Pandya is the Orthopaedic Quality Institute, government relations specialist in the AAOS office of government relations. He can be contacted at

Participating States
The following states are part of the challenge to the Patient Protection and Affordable Care Act:

  • Alabama
  • Alaska
  • Arizona
  • Colorado
  • Florida
  • Georgia
  • Idaho
  • Indiana
  • Iowa
  • Kansas
  • Louisiana
  • Maine
  • Michigan
  • Mississippi
  • Nebraska
  • Nevada
  • North Dakota
  • Ohio
  • South Carolina
  • South Dakota
  • Texas
  • Utah
  • Virginia
  • Washington
  • Wisconsin
  • Wyoming

Additional Resources

  1. Dept. of Health and Human Services v. Florida, Docket No., 11-398 (Anti-Injunction Act)
  2. Department of Health and Human Services v. Florida, Docket No., 11-398 (Minimum Coverage Provision)
  3. Florida v. Department of Health and Human Services, Docket No., 11-400 (Medicaid)
  4. Supreme Court Docket Files: