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July 2, 2012

Washington Health Policy Week in Review Archive 644024eb-6cf8-49b4-a8f6-bbb08bbd1498

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Supreme Court Upholds Health Care Law in 5-4 Decision

By Jane Norman, CQ HealthBeat Associate Editor

The Supreme Court upheld the constitutionality of the 2010 health care law last week in a decision affirming the government's power to require that Americans have health insurance or pay a financial penalty.

The justices also ruled, however, that states may opt out of the law's significant expansion of the Medicaid health care program without losing all of their federal Medicaid funds.

It was a major victory for President Obama's signature accomplishment in office and for congressional Democrats and supporters of the law, even with the swipe at the Medicaid provision that in its original form was projected to enroll 16 million uninsured Americans.

Chief Justice John G. Roberts Jr., who led the 5-4 majority upholding the "individual mandate," spent 50 minutes reading the long-awaited opinion in a packed courtroom. "It is not our job to save the people from the consequences of their electoral choices," Roberts said. Justice Antonin Scalia, who led the dissent, leaned back in his chair and appeared unhappy.

The majority wrote: "We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."

The law is a sweeping effort to bring millions of Americans into the health insurance system and Medicaid. But critics argued that the law's requirement that people have a minimum level of health insurance coverage exceeded congressional powers under the Commerce Clause of the Constitution.

The majority agreed that the law does not pass muster under the Commerce Clause. But the justices noted that failure to have health insurance is not made a crime. The majority found the mandate and the penalty fee constitutional under Congress' power to levy taxes. The penalty would be collected by the IRS through individual tax returns.

"The federal government does not have the power to order people to buy health insurance," Roberts wrote for the majority. "Section 5000A would therefore be unconstitutional if read as a command. The federal government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional because it can reasonably be read as a tax."

Obama said during a White House appearance that illness should not lead to financial ruin in a nation as wealthy as the United States. "Today's decision was a victory for people all over this country whose lives will be more secure because of this law and the Supreme Court's decision to uphold it," he said.

Republican congressional leaders vowed to continue their efforts to repeal the law. But with Obama in the White House and Democrats controlling the Senate, those efforts will not get very far unless Republicans make major gains in the November elections.

"Today's ruling underscores the urgency of repealing this harmful law in its entirety," House Speaker John A. Boehner, R-Ohio, said in a written statement.

"Republicans won't let up whatsoever in our determination to repeal this terrible law," said Senate Minority Leader Mitch McConnell, R-Ky.

"We pass a lot of terrible laws around here that the courts find constitutional," McConnell added.

Republican presidential candidate Mitt Romney said during a noon appearance in front of the Capitol that he agrees with the dissenting justices.

Romney said if the law is to be repealed, he must be elected president. "Obamacare was bad policy yesterday; it's bad policy today," he said, adding that reducing the cost of health care must be part of any change in the health insurance system.

The National Federation of Independent Business, 26 states and four individuals argued that the law's individual mandate represented an unprecedented and unconstitutional attempt by the government to force Americans to engage in commerce and buy a private company's product.

Medicaid Expansion Provision

The states—which filed suit immediately after the law was enacted—challenged as unduly coercive the expansion of the state-federal Medicaid program to adults younger than 65 who have not previously been eligible.

Roberts agreed, writing in the 7-2 majority on the Medicaid question that it would be "economic dragooning" to penalize states that do not participate in the expansion by taking away their existing Medicaid funding, which makes up a significant portion of state budgets. "A state could hardly anticipate that Congress' reservation of the right to 'alter' or 'amend' the Medicaid program included the power to transform it so dramatically," Roberts wrote.

But the chief justice also wrote that the problem could be "fully remedied" by barring the Department of Health and Human Services from taking away Medicaid funding.

And Roberts made clear that the defective Medicaid provision should not invalidate other parts of the law. "Congress would have wanted the rest of the act to stand, had it known that states would have a genuine choice whether to participate in the Medicaid expansion," he wrote.

The court's decision, especially with Roberts leading the majority, should reduce the uncertainty that has hung over implementation of the health care overhaul (PL 111-148, PL 111-152). The Obama administration largely prevailed in the court's ruling, although the court's conservative bloc expressed serious doubts about the law during six and a half hours of oral arguments March 26-28.

Walter Dellinger, a former acting solicitor general in the Clinton administration, called the ruling an "enormous vindication" for Solicitor General Donald Verrilli, whose performance in oral arguments was widely criticized.

Plaintiffs in the case said they were disappointed but did not regret launching their challenge. Florida Attorney General Pam Bondi, whose state was the leader in the 26-state suit, said in a written statement that "we fought for the principle that the Constitution limits Congress's power to direct the lives of our people, and on that point, we won." And the court agreed that the federal government couldn't force an "unacceptable choice" between losing all Medicaid benefits or accepting the expansion, she said.

Dan Danner, CEO and president of NFIB, told reporters that the ruling was a "bit of a bait and switch" since Congress had avoided using the word "tax" in the law as it applied to the mandate, so as to avoid political fallout.

"It's been a long two-year effort but I think certainly from where I am, we'd do it again in a heartbeat," said Danner. "There needs to be a line in the sand as to how far government can go in our lives."

Effect on the States

For states, the ruling means that those that have been sitting on the fence will be under growing pressure to get to work to implement their main portion of the law: setting up health benefit exchanges. At least a third of the states have made little progress setting up the new marketplaces, which means either the federal government will run their exchanges or they will take part in a state-federal partnership. States face a Nov. 16 deadline to file for federal approval of their health exchanges, which will serve the individual and small-group insurance markets.

The decision also means the law's complex framework remains intact. Employers with 50 workers or more will be required to provide health insurance or pay penalties. Insurers will be unable to discriminate against sick people. Subsidies to help pay for insurance will be extended to people earning up to 400 percent of the federal poverty level. Insurance companies will be forced to meet standards for how much money they spend on health care as opposed to administrative costs. Young adults up to age 26 will be able to remain on their parents' health insurance policies. And the Medicare prescription drug coverage gap known as the doughnut hole will eventually disappear.

The high court also rejected an argument that the Anti-Injunction Act, a tax law dating from the 1860s, applied to the health care law. If it had, a lawsuit could not be considered until the penalty actually was collected.

"The Affordable Care Act describes the payment as a "penalty," not a "tax." That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act," said the majority opinion.

The ruling may leave open one very contentious question, however: whether groups with religious affiliations such as hospitals and universities must comply with a rule developed under the health care law that requires that they cover birth control as a preventive service. The administration offered a modification that shifted the burden of payment to insurers. But it was not sufficient for the 56 plaintiffs who have brought at least 23 First Amendment cases in federal district courts nationwide.

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Officials See Full, On-Time Medicaid Expansion by the States

By John Reichard, CQ HealthBeat Editor

Senior Obama administration officials say they are confident that states won't opt out of the health law's Medicaid expansion as they won the right to do under the Supreme Court's ruling on the overhaul.

At a background briefing for reporters at the White House, the officials said that the availability of full federal funding for the expansion in its first three years—and no less than 90 percent federal payment of expansion costs on a permanent basis—would lead all states to expand Medicaid coverage up to 133 percent of the poverty line.

The Medicaid expansion is scheduled to begin in 2014 but some observers wonder whether it will take a number of years for states to go ahead with it. A reporter noted, for example, that not all states entered the Medicaid program right away after its creation in 1965 and asked whether the same pattern would occur under the expansion. One of the officials responded that there were only two "outliers" when it came to entering Medicaid originally, Arizona and Alaska, and indicated such delays are unlikely to recur under the expansion.

Kaiser Health News, however quoted, officials in Missouri, Mississippi and Nebraska as casting doubt on the likelihood their states would expand Medicaid. Lobbyists in recent days have also raised the possibility that Congress might decide to delay the 2014 implementation not only of the Medicaid expansion but also the start of insurance exchanges with subsidies to buy coverage. They've suggested that savings from doing that would help cement a deficit reduction agreement next year between Democrats and Republicans.

National Association for Home Care and Hospice President Val Halamandaris recently said a delay would give states time "to prepare for implementation including the creation of exchanges. This delay will also save approximately $200 billion, which can be applied to deficit reduction, extending the SGR "doc fix" and avoiding the need for any further cuts to Medicare," he said.

But one of the officials, who spoke on the condition that they not be identified by name, downplayed the possibility that deficit reduction talks next year would center on the health law (PL 111-148, PL 111-152), saying that the overhaul measure significantly reduces deficit spending. And the officials expressed confidence that all states would either have their own exchanges or a federal insurance exchange available by 2014. So far 33 states have received federal money to create their own exchanges, one official added,—in addition to the initial planning grants. And more states have applied for such added funding.

The officials also denied that there are any funding or staffing shortfalls that would keep the federal exchange or the federally sponsored data port—to be used by state exchanges to obtain income and other information on insurance applicants—from functioning as scheduled.

If states do opt out of Medicaid, that would ostensibly leave some poor people who do not qualify for Medicaid without access to subsidies to buy insurance. That's because their incomes in many instances would be below 133 percent of the poverty line, the point at which subsidies become available. Would the Obama administration seek legislative changes to ensure such Americans would have access to subsidies? Officials brushed aside the inquiry as a hypothetical while again expressing confidence states wouldn't opt out.

Officials also suggested that public support for the law will grow over time and that people will form their own assessments and be less influenced by critics who engage in "spin."

They said they plan no special effort to explain to the public the justification for the individual mandate, which polls say is the least popular part of the law. Rather, they said they would respond to questions about it and would emphasize benefits of the overhaul such as its ban on denying coverage because of preexisting medical conditions.

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States with Largest Uninsured Populations May Be More Likely to Opt Out of Medicaid

By John Reichard, CQ HealthBeat Editor

Any states that choose to follow the Supreme Court's ruling and opt out of the health care law's Medicaid expansion are likely to be those with a larger population of uninsured and poor people, experts said. But doing so would mean refusing huge sums of federal money, which could be difficult for most states to do.

"No state can afford to opt out," said Orrin G. Hatch of Utah, the ranking Republican on the Senate Finance Committee. "There's no state in its right mind that wouldn't take the money, because they're going to have all those additional people they're going to have to take care of."

Under the health care law, Medicaid eligibility was expanded to include adults with annual incomes up to 133 percent of poverty. The federal government will pay 100 percent of the costs of covering those eligible for the expansion in 2014, 2015 and 2016; 95 percent in 2017; 94 percent in 2018; 93 percent in 2019; and 90 percent in 2020 and thereafter.

The justices ruled that it would not be unconstitutional for the states to refuse to participate in that expansion and that they would not lose federal funds by doing so.

States with the largest projected increases in Medicaid enrollment under the expansion tend to be poorer and Republican, and a number have a history of limiting the size of their Medicaid populations. That could mean that fewer than the 16 million uninsured estimated to get Medicaid coverage under the expansion will actually do so.

Idaho is likely to opt out because of difficulties the state is already having in meeting its current obligations for Medicaid recipients, said Republican Sen. Jim Risch, the junior senator from that state. "They can't afford the Medicaid they have now," Risch said.

Lawmakers in both parties expressed doubts about whether legislation would be needed to entice states to opt into the expanded Medicaid coverage or provide other type of health care assistance to states that elect to opt out.

"We're talking about it. We haven't made a decision yet," said Majority Whip Richard J. Durbin, after he and other members of his caucus discussion the court's decision at a luncheon last week.

But Joseph I. Lieberman, chairman of the Homeland Security and Government Affairs Committee, said lawmakers could weigh proposals to offer incentives to states to take part in providing expanded Medicaid benefits. Even so, he added, the cost of such incentives could make it hard to build consensus for such legislation. "Maybe. But of course, we've got to keep the whole thing in fiscal balance," said Lieberman, I-Conn.

Many lawmakers, such as Sens. Barbara Mikulski of Maryland and Johnny Isakson of Georgia, said they intended to study the decision and consult with state officials back home on whether federal legislation is needed to clarify or change the law. "It's a little milky ... I'm waiting to hear from the governor, and the attorney general to hear what they think," Mikulski said.

In Maryland, as well as California, state officials said that they plan to move ahead with increasing Medicaid coverage levels in 2014 for eligible.

"I think we saw this as a very important part of the law," Joshua Sharfstein, secretary of the Maryland Department of Health and Mental Hygiene, told The Associated Press after the ruling.

Virginia Attorney General Kenneth Cuccinelli hinted in a statement that his state may opt out of the Medicaid expansion, praising the decision and saying that "this alone could save the commonwealth about $200 million a year -- money which would have to come from new taxes or other already stretched priorities, such as state education and transportation funding."

Sen. Lindsey Graham, R-S.C., introduced a bill (S 1587) last fall to allow states to opt out of the Medicaid expansion, and said he will ask Majority Leader Harry Reid for a vote on the measure.

"I want Congress to reinforce the ruling but be even more clear about it," Graham said in an interview. "I'm not so sure the legal decision is as clear as our bill."

Max Richman, president and CEO of the National Committee to Preserve Social Security & Medicare, said that advocates will do "whatever we can" at the state and local level to persuade states to opt into the expansion.

Others were not as sure. "While we are pleased that the court's ruling preserves existing Medicaid coverage, we are worried that the low-income people in any state that may reject the Medicaid expansion will bear the costs of that decision," said Jane Perkins, legal director of the National Health Law Program. "If a state chooses not to participate in the expansion, poor people will suffer."

Alan Weil, executive director for the National Academy for State Health Policy, declined to predict which states will opt out.

"All that's clear now is that states will have a debate over this issue they thought they didn't have any choice on," he said. "But it's still a very attractive option for states."

A Senate GOP aide agreed with Weil's assessment. "Congress threw a lot of money at the states in the expansion," the aide said. "They may still take it."

According to an analysis by the Kaiser Commission on Medicaid and the Uninsured, under the health law's Medicaid expansion, the states projected to have the biggest increase in Medicaid enrollment under the law by 2019 include California with 2 million, Texas with 1.8 million, Florida with 950,000 and Georgia with 650,000.

The Kaiser Commission said that the estimated federal increase in spending to finance the expansion will total $434 billion by 2020, with state spending growing by at least $20 billion by that time.

In its statement, the National Association of Medicaid directors said the court's ruling "was clear that this does not apply retroactively to previous federally mandated expansions, or necessarily to potential future expansions."

Medicaid experts said that they will examine the high court's decision for its implications on whether states would be allowed to opt out of any future modifications of the program.

"We will be analyzing the decision with that question in mind, about how the decision impacts Congress' ability to improve and strengthen the Medicaid program in the future," said Kevin Prindiville, deputy director of the National Senior Citizens Law Center. It may be difficult because the opinion's discussion of the Medicaid decision is limited, he said.

Congress over the years repeatedly has amended the Medicaid law since it was enacted in 1965, and added certain categories of people for whom coverage is mandatory, as well as services that must be covered. Those expansions have been allowed to stand.

"For example, the Medicaid Act requires state programs to make medical assistance available to low-income families with dependent children and to low-income individuals who are elderly, blind or disabled," the Justice Department wrote in a brief submitted to the Supreme Court defending the expansion.

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After the Court Ruling, a Day of Reckoning for States on Exchanges

By Jane Norman, CQ HealthBeat Associate Editor

With the Supreme Court ruling on the health care law in the rearview mirror, states face increased pressure and scrutiny to get on with the job of establishing the health benefits exchanges set to launch in 2014.

Some states have moved forward aggressively on exchange implementation, others have begun but then stalled and still others have taken little action as they watched the battle over the law raging in the courts. The 5-4 ruling upholding the health care law (PL 111-148, PL 111-152) won't change the politics in states where Republicans are hostile to the measure. But policy experts say the court's opinion clears the way for those states that were well on their way. And the decision may give a hard nudge to others to get moving.

Linda J. Blumberg, a senior fellow in the Health Policy Center at the Urban Institute, said the pack of about 15 states that have been charging aggressively ahead and likely will debut state-run exchanges will gain additional "strength and support" from the ruling. More may follow. "I do think a lot of states that have been waiting will start to move forward," added Blumberg.

However, Alan Weil, executive director of the National Academy for State Health Policy, cautioned that every state has different politics, and some governors and state lawmakers will insist on waiting for the results of the November election and to see if the GOP takes the White House and possibly all of Congress. In states that don't establish a state exchange or state-federal partnership or can't get either together soon enough, the federal government will operate an exchange.

"States are now ground zero for health reform," wrote Paul Keckley, executive director of the Deloitte Center for Health Solutions, in a memo last week. "The law puts enormous pressure on states to act quickly and decisively."

The Department of Health and Human Services, underlining that fresh sense of urgency, recently announced 10 new opportunities for states to apply for federal money that will be awarded through Dec. 31, 2014. The move establishes a sort of funding on-ramp for states that might not be ready to run their own exchanges and could instead begin with a state-federal partnership that could eventually lead to a state operated exchange.

HHS Secretary Kathleen Sebelius, making her first public remarks since the ruling, said in a conference call with reporters that 34 states and the District of Columbia so far have received $850 million in Level One and Level Two exchange grants. The exchanges will serve as marketplaces for the sale of individual and small group policies, allowing consumers to compare many choices of plans and, in some cases, receive tax credits to subsidize their coverage.

The new grants "will be available to all states no matter where they are in the process of setting up their marketplace and no matter whether they plan on running it themselves, partnering with another state or partnering with the federal government," said Sebelius. "As we've said all along, we're going to be working with states every step of the way." Meetings across the country are planned in July bringing together state officials and HHS officials, she said.

"Looking ahead we're going to keep working closely with states and other partners to implement the law," she added.

Grant applications will be due beginning Aug. 15, 2012, and notices of grant awards are expected to be made 45 days after applications are due.

Some States on Track

The exchanges have gotten off to a strong start in about 15 states that likely would be expected to meet a November HHS deadline for proposals for state-operated exchanges. Maryland is regarded as one of the most advanced, as well as Rhode Island, Oregon and New York.

About 18 other states are studying their options, according to a Kaiser Family Foundation roundup. They include Indiana, Iowa, Montana, Ohio and South Dakota. Arkansas is planning for a partnership exchange. Another 14 states have seen "no significant activity," including Alaska, Florida, Georgia and Missouri, says Kaiser.

Three states have decided they will not build a state exchange, including New Hampshire, where the governor recently signed a law actually barring establishment of an exchange. "So we've passed the point of creating our exchange," said Colin Manning, press secretary to New Hampshire Gov. John Lynch. He pointed out the law does allow the state to participate in a partnership with the federal government. "We've been preparing to implement the law and now that the decision has come down we'll continue to move forward," Manning added.

But there are many obstacles even those states that want to have their own exchange. Blumberg said a major issue is the development of information technology and computer systems that can support the exchange and then integrating them with a state's Medicaid system. "It's clearly the issue that's waking folks up in the middle of the night," she said. "They're working with Medicaid systems that really are dinosaurs."

An industry insider who spoke only on background outlined more challenges. He forecast problems for the federal government in laying the groundwork for federally run exchanges in states opposed to the health care law, even though it's necessary to start doing so if the 2014 deadline is to be met. "For CMS to step in in that environment would position the administration against significant states where the governor is and has been opposed and where the state legislators have been opposed," said the insider. "I don't see that happening before an election."

Nonetheless HHS officials insist they are on schedule for implementation by 2014. On the call with Sebelius, CMS officials said they anticipate receiving 10 applications for previously announced grant funding before the deadline, including from some states that hadn't previously asked for exchange establishment grants.

California is one state moving ahead. An information sheet from the state's California Health Benefit Exchange estimates that 4 million state residents will enroll in subsidized coverage through the exchange or in Medi-Cal when the law is fully implemented, and another 2.1 million people will buy coverage without subsidies through the exchange or outside it. The California exchange became operational in January 2011 and in August received $39 million in a federal establishments grant. The exchange has hired 36 permanent staff members.

By contrast, in Kansas, Republican Gov. Sam Brownback returned a $31.5 million exchange grant in 2011 and Republicans in the state legislature are opposed to implementation as well. The Kansas Health Institute News Service recently reported that Insurance Commissioner Sandy Praeger said the state could still partner with the federal government, allowing state officials to set their own rules on their participation. But Praeger, also a Republican, said she won't oppose Brownback and plans to talk with him again about what to do about the exchange, the news service said.

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CMS Opens Door to More 'Advance Payment' ACOs

By John Reichard, CQ HealthBeat Editor

Buoyed by strong interest from providers, Centers for Medicare and Medicaid Services officials will announce a new opportunity for providers to file applications to contract with Medicare as an "advance payment" accountable care organization.

These ACOs get expected savings from team-based care in the form of up-front payments. That helps them pay for adding staff and health information technology needed to get the ACO up and running.

"We will be launching a third group of Advance Payment Model ACOs on January 1, 2013," CMS says in a Register notice scheduled to be published June 26. "We are creating this new opportunity in response to requests from stakeholders and potential partners who requested additional opportunities to partner with CMS as Advance Payment ACOs."

After rocky going early on, the ACO program has gotten off to a surprisingly strong start. The first batch of ACO contracts included five advance payment ACOs. Officials said they are reviewing another 150 applications from ACOs seeking to enter the program in July, and that 50 or so involve advance payments. And now more ACOs will get a crack at advance payments—if the health care law survives.

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In Sidestepping Commerce Clause, Ruling Shifts Focus to Scope of Congressional Power

By John Gramlich, CQ Staff

Chief Justice John G. Roberts Jr., siding with the liberal wing of the Supreme Court, sidestepped a potentially sweeping ruling on the scope of the Constitution's Commerce Clause by upholding the health care overhaul's requirement that most Americans buy insurance under Congress' taxing powers instead.

But the high court's ruling—combined with its decision limiting the law's expansion of the Medicaid program—still could have broad implications for the exercise of congressional authority, according to legal experts on both sides of the ruling.

In siding with the court's liberals, Roberts sought to find a middle ground in a complex and polarizing case, court observers said. Jeffrey Rosen, a law professor at George Washington University, said the chief justice "chose to favor bipartisanship over polarization" in pursuing a narrow decision that does not broadly redefine the role of Congress or the reach of the Commerce Clause.

But some conservatives warned that the court's reasoning that the health insurance mandate is constitutional as a tax increase—rather than as an example of economic activity—sets a dangerous new precedent that gives Congress a green light to meddle in Americans' lives.

Democrats and some of the court's liberal justices, meanwhile, warned that Roberts had, in fact, raised new questions about the scope of the Commerce Clause by refusing to accept the insurance mandate as a legitimate exercise of congressional power under that provision. And they predicted that the justices' rejection of the Medicaid expansion would invite new legal challenges to other federal laws that states find objectionable.

New Taxing Powers

Utah Republican Sen. Mike Lee, a constitutional law expert and former clerk to Justice Samuel A. Alito Jr., said that upholding the law's core insurance mandate under Congress' taxing authority gives lawmakers license to regulate Americans' lives in new ways, so long as they attach a tax as a penalty.

The ruling "can be fairly characterized as something that could significantly expand Congress's coercive authority, because Congress can now mandate even individual conduct and punish failure to comply with that mandate with a tax," Lee said.

"The saving grace," he said, "is that the taxing power comes with significant political consequences," and he said he expects Democrats to pay a political price for what the court has now formally deemed a tax increase.

Republicans swiftly sought to capitalize on the stigma associated with a tax increase, issuing statements characterizing the insurance mandate as a huge tax hike.

Commerce Questions

Democrats generally were happy with the ruling, but some liberals said it could have problematic legal ramifications for their own interests.

Justice Ruth Bader Ginsburg agreed with the decision to uphold the individual mandate but disagreed with the reasoning behind it, in which Roberts ruled that Congress cannot regulate "inactivity"—the decision not to buy health insurance—as an economic "activity."

"I agree with the chief justice that Congress' power to tax and spend supports the so-called individual mandate or minimum coverage provision. But I would make that an auxiliary holding," Ginsburg said in prepared remarks from the bench. "As I see it, Congress' vast authority to regulate interstate commerce solidly undergirds the [health law]."

By ruling that Congress does not have the authority to force people to buy health insurance, Ginsburg said, the court has in fact redefined the Commerce Clause. "It is a stunning step back that should not have staying power," she said.

Nan Aron, president of the Alliance for Justice, a liberal legal advocacy group, said in a statement that the court's holding on the Commerce Clause amounts to a "ticking time bomb" that could call into question Congress' ability to regulate a broad range of activities that, until now, it has been free to regulate.

"The five conservative justices may have signaled that they are prepared over time to undo or limit a host of economic and social policies that are rooted in long-established federal powers to regulate interstate commerce," Aron said.

The "true legacy" of the ruling, she said, "may become apparent in future cases as a five-justice majority votes to restrict Congress' power to regulate business, enact environmental laws, protect the health and safety of workers and consumers, preserve civil rights and prevent discrimination."

Maryland Democratic Sen. Benjamin L. Cardin said the court's complex series of concurring and dissenting opinions in the case may mean that the reaches of congressional power—particularly as it relates to economic regulation—have not been settled.

"It's clearly not the last word as to what Congress can do under the Commerce Clause," Cardin said.

Ginsburg, meanwhile, said the majority's ruling that Congress cannot force states to comply with an expansion of Medicaid will give the states much more latitude to challenge federal laws they do not like. The ruling "invites assaults on national legislation irreconcilable with the framers' anticipation," she said.

A Forceful Minority

The four conservative justices who disagreed with the controlling opinion in the case—Alito, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas—made clear that they viewed the overall ruling as judicial activism.

Kennedy, in dissenting remarks from the bench, called it a "vast judicial overreaching" that goes to great lengths to call the individual mandate a tax even though the government itself has argued that it is not a tax.

But Walter Dellinger, a former solicitor general under President Bill Clinton, said the most notable aspect of the ruling as it relates to congressional power is that four justices would have struck down the law in its entirety.

"What is breathtaking is how sweeping the restrictions on congressional authority would be if the position of four justices had prevailed in that case," Dellinger said. "The court is just one vote away from severe limits on the authority of Congress."

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