By Emily H. Wilburn

            On June 28, 2012 the Supreme Court issued its opinion in National Federation of Independent Business v. Sebelius. I was driving to another county for court that morning, and the anticipation on the radio for the outcome was at a fever pitch. I laughed to myself about the anticipation because Supreme Court opinions are not easily decipherable and they do not come with a simple “constitutional” or “unconstitutional” checkbox. It takes time to digest the opinion and determine what the effects of the application of the opinion will be, and almost a month later it is still unclear what the healthcare landscape will look like in the next two years.

            In National Federation, the Supreme Court held that while the Congress cannot penalize those individuals who do not obtain insurance using its Commerce Clause powers, Congress is able to tax individuals who do not obtain insurance by the deadline using its broad taxing authority. The Court found that the act of not buying insurance was not substantially related to interstate commerce. However, the majority of the Supreme Court reasoned that because the Patient Protection and Affordable Care Act (“PPACA”) used both terms “penalty” and “tax,” and the penalty for not buying insurance was to be administered like a tax, the penalty was in fact a tax for constitutional purposes. While Congress cannot require individuals to purchase insurance via its Commerce Clause powers, the taxing power of Congress does allow it to tax activities which it otherwise could not regulate. As such, the individual mandate, the backbone of the PPACA, remains in place.

            Justice Roberts wrote that in deciding these issues, the Court kept in mind that

Members of the Supreme Court are vested with the authority to interpret the law, but they possess neither the expertise nor the prerogative to make policy judgments; those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them, and it is not the Court’s job to protect the people from the consequences of their political choices.

            Many small businesses in our community have taken a “wait and see” approach to dealing with the changes presented by the PPACA, waiting to see the outcome of the Supreme Court opinion. In large part, they are still waiting to see. But if President Obama is reelected in November to a second term, it means that this healthcare reform will happen, and it will happen fast. Most of the major changes will take effect by January 1, 2014. Even now, states are preparing to enroll people and businesses in Health Insurance Exchanges which will provide insurance coverage to individuals and small businesses. It is unknown what this coverage will cost, thus impossible for businesses to plan around these costs. Furthermore, employers must provide plans to their employees that provide no out of pocket costs for preventative care, but the plans must still pay the doctors for this care. The reforms may provide more coverage for more people, but they appear to do little to solve the problem of rising insurance premiums which must necessarily increase to cover the costs of the expanded care. The Supreme Court’s opinion has done little other than warn and ensure that the PPACA’s reforms will happen. There has been no clarification as to how the PPACA will work and what the healthcare landscape will be in the next several years as businesses and employers attempt to comply with its provisions.

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