By Jennifer J. Salopek
Neal Katyal, former acting U.S. Solicitor General, addressed attendees at a AAMC meeting in Miami last week. Medical school faculty members, deans, and hospital CEOs listened raptly as Katyal spoke on the eve of opening arguments before the United States Supreme Court about the Affordable Care Act. Speaking without notes for more than 45 minutes, Katyal outlined the composition of the Court, its usual operations and how ACA arguments would differ, a brief history of interpretations of the commerce law, and predictions for the future of the Act.
Katyal, an expert on Constitutional law, is a full-time faculty member at Georgetown University Law Center as well as a partner at Hogan Lovells. He served as acting Solicitor General in 2010-2011 after his former boss, Elena Kagan, was appointed to the Supreme Court. He noted that having three female justices is “historically unprecedented” and has changed the personality of the Court. He said that while voting often does follow party lines—five Justices were appointed by Republican presidents and four by Democrats—more than 50 percent of cases are decided unanimously.
The essential element that makes the future of the Affordable Care Act cloudy, according to Katyal, is that it dictates that people purchase a privately offered product, which is highly unusual. In response to an audience question about whether the future of the Act would have been more predictable with a single-payer system, Katyal responded that yes, single-payer is Constitutional. Another audience member commented that many people believe the Act does not go far enough, and asked Katyal to comment on its exclusion of illegal immigrants. “There is no Constitutional barrier to programs for United States citizens only,” Katyal said.
The Court’s decision on the Act will depend on whether the Justices regard the individual mandate as unique and different, or a logical extension of other times when the government has regulated individual behavior.
“The most important takeaway is that these challenges are claiming the Act is unconstitutional,” Katyal said. “It would be radical for the Court to take a decision away from the American people.” Times when it has done so include its decisions in Brown vs. Board of Education and Roe vs. Wade.
“Obviously, health care reform doesn’t arouse the same passions as those cases, but politics is at work here,” Katyal said. “There’s a good argument to be make that the Court should stay out of it; I predict that the Court will not strike down [the Act].” When asked about the political divisions within the Court, Katyal said, “I would be surprised if their decision on the Accountable Care Act is not at least 6 to 2.”