In National Federation of Independent Business v. Sebelius, Florida, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming filed a lawsuit against the federal government over the Affordable Care Act, saying that the Medicaid expansion in the Act was unconstitutional. This led to the consideration of two issues—the individual mandate and the expansion itself.

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The eventual ruling was that the individual mandate was part of the enumerated taxation power. While the original challenge had related to the commerce clause, a vague part of the Constitution that the Supreme Court typically uses to uphold federal power, the Justices felt taxation was a better justification. The commerce clause argument was this: the federal government, in mandating that everyone purchase health insurance, was overreaching their power to regulate commerce; rather, they were forcing people to participate in it. However, because the mandate was enforced through a fee, the Court ruled that it was a tax, something within the power of Congress.

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On the question of the Medicaid expansion, the Court ruled against Congress. They said that requiring states to expand Medicaid was forcing them to comply with new rules in order to receive money, rather than dictating how the money itself was spent. Because the threat was to remove all federal Medicaid funding, a huge part of state budgets, there was no way for the states to refuse the conditions of the grant, making the expansion unconstitutional. While 4 Justices felt this made the entire ACA unconstitutional, a slight majority upheld the Act with the exception of the expansion. They also allowed for the expansion itself, just not the power of the Health Secretary to enforce it via grant removal, essentially making it optional.

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The ACA Supreme Court challenge reflects many aspects of course content. First, it demonstrates the role of importance in granting writs of certiorari. The case clarified a significant rule/administrative procedure at the federal level and addressed a question of Constitutionality, both factors that lead the Court to grant certiorari. The case also involved significant amicus briefs in favor of the ACA. It is also an interesting case with regards to precedent—though the Court often allows congressional terms on grants, this case is more relevant to an issue that came up in only two prior cases. In those two cases, the Court acknowledged that “financial inducement offered by Congress could pass the point at which permissible pressure on states to legislate according to Congress’ policy objectives crosses the line and becomes unconstitutional coercion” (Kaiser Family Foundation). Thus, the role of stare decisis is questionable. The Court’s ruling also made use of the Marbury v. Madison judicial review power. Their extreme power over the future of a major piece of legislation demonstrated the way in which the Court is equal to the other branches of government, despite the initial belief that it would be the weakest.

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Now, the ACA is once again in question. A petition, from January 2020, once again questions the Constitutionality of the act. In 2017, Congress set the amount of the penalty for not having insurance to $0, essentially nullifying the provision. The new case questions whether or not a tax of $0 remains Constitutional, and if a ruling calling the individual mandate unconstitutional would invalidate the entire ACA. Vital to this case, which is to be heard in November, is the confirmation of Judge Amy Coney Barrett. Judges are typically expected to remain apolitical. However, in recent years especially, the political beliefs of Justices has become more significant, as we discussed in class. The nominee is often subject to a “litmus test,” typically having to do with abortion beliefs. In the ongoing hearings, the question of the ACA has come up, though Judge Barrett has said she is “not here on a mission to destroy the Affordable Care Act.” Nevertheless, the question of health care has shown the undeniable political aspects of judicial confirmation.