Health reform and the Supreme Court: the ACA survives the battle of the broccoli and fortifies itself against future fatal attack.

The single most important legal development in health law in 2012 was the Supreme Court's June 28 decision upholding the Patient Protection and Affordable Care Act ("ACA") against a surprisingly strong constitutional challenge. (1) The decision in National Federation of Independent Business v. Sebelius ("NFIB") (2) forever altered the scope of federal congressional power. Specifically, it diminished the authority of Congress under the Commerce and Spending Clauses and stretched its authority under the Taxing Clause. (3) The implications of the decision with respect to both health reform, and congressional power more generally, will only be known with the passage of time. (4) What the decision did clarify, however, is that neither the media, nor constitutional scholars, are particularly apt at prognosticating decision making by the Roberts Court. (5) While prognosticators and scholars focused on the reach of the Commerce Clause in the build up to the case, the Spending and Taxing Powers carried the day. The decision itself reflects a fascinating realignment of constitutional powers, Supreme Court Justices, and views on judicial deference. At least as important, the decision upholds the most significant social legislation passed by Congress in recent decades. For proponents of the health reform law, it is an unqualified victory. Nonetheless, the decision itself could be used to attack other critical pieces of social legislation. (6) And the decision may be nothing more than a temporary victory. The ACA is still vulnerable to political and constitutional attack. (7) Indeed, cases challenging the constitutional vitality of the ACA's requirement that insurance plans include contraceptive coverage appear to be headed for the Supreme Court. (8) But, unlike when the ACA was first passed on by the Court, prognosticators and scholars will be able turn to NFIB to inform their predictions if and when the Supreme Court does agree to consider the next challenge to the law. This article will briefly describe the ACA, the constitutional challenges that brought it before the Supreme Court, and the intense scrutiny brought to bear on the Commerce Clause in the briefs, media reports, and oral arguments proffered in the lead up to the decision. It will then summarize the decision while focusing on the impact of the "broccoli horrible," (9) and the question of severability. After paying brief tribute to the often overlooked opinion by the Justice Ruth Bader Ginsburg, the article will consider what role, if any, NFIB is likely to play in future constitutional challenges to the ACA. Specifically, the article will argue that NFIB is likely to play a small but critical role if and when the Supreme Court considers the constitutionality of the ACA's contraception mandate. Despite the expressed willingness of the four members of the Court to strike the entire statute down based on a single constitutional infirmity in NFIB, at least five Justices of the Court have made it vividly clear that even a successful challenge a single component of the Act--including the contraception mandate--will not bring down the ACAo After NFIB, the ACA will survive further assault in the courts. I. The ACA and the Constitutional Challenges The ACA is a massive federal act designed to expand access to health care coverage, control health care costs, and improve health care delivery systems. (10) The law has many moving pieces. It makes preventive care free, (11) makes insurance available to individuals and small businesses through health care exchanges, (12) and provides premium and cost sharing subsidies to make insurance affordable through the exchanges. (13) It also requires individuals to have coverage or pay a penalty. (14) It requires some employers--those that have fifty or more employees--to offer coverage. (15) It provides tax credits to small employers that choose to provide insurance. (16) The Act also expands Medicaid, (17) will create an essential health benefits package that must be provided by all health insurers, (18) requires coverage for adult children under the age of twenty-six, (19) and eliminates the preexisting condition exemptions (20) and lifetime caps on insurance. …