Although some insurance company executives say they are now using analytics, others say they’re still on the fence about it or only beginning to explore its possibilities.
April 16--The Patient Protection and Affordable Care Act was passed to deal with a modern American problem : 50 million Americans living without health insurance.
Its fate, however, will be decided by one of the oldest concepts of American law: that Congress' power has limits and that the U.S. Supreme Court gets to decide where to draw the line.
However the court rules on the question of whether Congress overstepped its power in requiring virtually every American to buy health insurance, it could set important limits for future lawmakers.
"There will almost certainly be some message for Congress about what the limits of its powers are," said American University professor Stephen Wermiel, author of an online column explaining the Supreme Court to law students.
If the court strikes down the law, " it will establish new limits," he said.
With the court still debating the question, President Obama recently weighed in with a politically tinged history lesson. The former constitutional law professor declared it would be an "unprecedented, extraordinary step" if the court were to strike down the law.
But is that true?
The question may not be so easy to answer. The court's view of Congress' power has evolved over time, swinging from pre-1803, when the court assumed all laws were constitutional, to the era of the New Deal. During that time, the court struck down liberal social policy at such a rate that President Franklin Roosevelt sought to pack the court with justices sure to take his side.
For its first 13 years, the Supreme Court took the stance that it had no power to strike down any law. It could only interpret Congress' work.
Then came Marbury v. Madison, a seemingly unimportant case in which a justice appointed by Congress on the last day of President John Adams' term was not seated because his appointment was not received in time.
The court seated William Marbury and simultaneously established that it had the power to review acts of Congress and decide whether they are contrary to the Constitution. This launched the court's power of judicial review.
"That was really a big deal because now, at the end of the day whether a law was going to stand or fall was going to be decided by the U.S. Supreme Court," said Bob Jarvis, a professor at Nova Southeastern University. "It gives tremendous power to judges who are not elected and cannot except in (rare) circumstances be recalled."
Among a series of New Deal regulations struck down by the court in the 1930s were an agriculture price support program, a code setting maximum working hours and a minimum wage for the poultry industry, and a law setting pensions for railroad workers.
The court ruled that Congress had exceeded its power with such laws. So Roosevelt sought to get a new court but failed. Historians believe the court got the message nonetheless.
Suddenly, the court issued a series of rulings upholding programs including the Social Security Act.
Although not a New Deal case, one of that era that bears particular note is Wickard v. Filburn. Both proponents and challengers of Obama's health care law cite it.
In that 1942 case, a wheat farmer sued over laws establishing grain quotas. Roscoe Filburn grew wheat solely for family consumption -- not to sell -- and argued that Congress went beyond its power in forbidding him from growing it.
The court said no, on the grounds that Filburn's personal crop would reduce his activity -- his purchase in the national grain market.
Health care law supporters argue much the same: that the inactivity of people in the health care market -- the decision not to buy insurance -- is driving up the price for others.
Critics of the health care law, though, say this case is different. People who are not buying health insurance haven't entered some alternative health care market.
"The people who don't buy health insurance are not growing their own wheat; they are going without wheat," said Jarvis, explaining the argument.
It was not until 1995, 53 years after the Wickard case, that the court found Congress had again exceeded its power.
In United States v. Lopez, a high school senior was charged with violating the Gun-Free School Zones Act of 1990 for bringing a concealed weapon on campus. The government claimed possession of a gun in a school zone was an economic activity, regulated by Congress under interstate commerce laws.
The Supreme Court struck down the law, finding that it had nothing to do with commerce or economic activity.
The decision signaled another change in the court. A majority of members seemed to say, "Congress, you have finally gone to such an extreme where no matter how charitable we're trying to be, we can't figure out what this has to do with interstate commerce," Wermiel said.
Health care law supporters note an important connection to the Wickard and Lopez cases that they hope will secure the Affordable Care Act. In both, justices focused, in part, on whether Congress was making genuine economic policy. In Lopez, they said no; in Wickard, they said yes.
Softening his original remarks, Obama recently made the economic policy distinction, saying: "We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care," since the 1930s.
Jarvis agrees the court has often deferred to Congress when it's passing legislation that can be legitimately called economic. He thinks that may save the law.
"Of course the health care legislation is economic legislation because at the end of the day, it's looking for people either to buy insurance or pay a penalty," he said.
But Jane Orient, a doctor and executive director of the Association of American Physicians and Surgeons, believes the court will look to something more basic in the Constitution.
Orient's group filed eight briefs in the Affordable Care Act case and has its own lawsuit on the issue that is on hold, awaiting the Supreme Court decision. Per the Constitution, Congress' power should be limited to commerce between states, or between the U.S. and Indian tribes or foreign nations, she said.
All else is overreach, including Wickard and other precedents, she said .
If the court strikes down the law, Orient said, it could be a message to Congress "that there are some limits and that it can't keep stretching the commerce clause to accomplish just any good deed that it wants to accomplish."
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