Could Supreme Court still invalidate Obamacare?

Perhaps the most dramatic decision taken by the Supreme Court in recent years was over the fate of the Affordable Care Act, otherwise known as Obamacare. Justice Clarence Thomas would have struck down the act, and he dissented in the 5-4 June 28 opinion that left the heart of the law standing.

UF Law Professor Steven Willis also had a dog in that fight. Willis, a tax law specialist and member of the UF Law faculty for 31 years, argued that the law is unconstitutional in an amicus brief for the Supreme Court and in three related law review articles.

The Supreme Court in National Federation of Independent Business v. Sebelius declared the individual mandate portion of the act constitutional. Although the case was a challenge of Congress’s commerce power, the Court upheld the act under taxing power, and the court said the government could use its powers to require individuals to buy health care.

Willis debated Andrei Boyarshinov (JD 07), a UF Law adjunct professor and associate general counsel for Shands HealthCare, about the fate of Obamacare on the occasion of Constitution Day Sept. 17, in the Martin H. Levin Advocacy Center Courtroom.

Boyarshinov highlighted the problems with today’s health care system and how the act seeks to fix those problems.

“The U.S. spends more on health care than it does on its defense,” he said. Boyarshinov said the act seeks to decrease the cost of health care and simultaneously broaden health care availability through delivery system and insurance reform.

However, to effectuate the changes, individuals are required to either have insurance or pay a tax penalty.

“The glue through (the Affordable Health Act) is the individual mandate,” he said.

But could that decision represent merely a stopgap? Is the conservative chief justice who sided with the court liberals to uphold the law biding time until provisions of the law have taken effect?

Willis recalled his initial dismay over the ruling.

“And when that decision came down, and I read it … needless to say, I was disappointed,” he said. However, upon reflection, Willis realized “we have a truly brilliant chief justice of the Supreme Court.”

Willis used Chief Justice John Roberts’ opinion to argue that the act will be challenged in 2014 on tax grounds and ultimately found unconstitutional.

Willis argues that Roberts’ opinion lays out a “roadmap” for overturning the Affordable Care Act once states set up health care exchanges. Willis says the exchanges will almost certainly result in disparate taxes depending on geography. It is a result, Willis says, not permitted by the Constitution, and one the chief justice warns against in his opinion.

—Felicia Holloman (3L) and Richard Goldstein