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PPACA Supreme Court Review – The First Day

On the first day (Monday, March 26) of the Supreme Court review of the Patient Protection and Accountable Care Act (PPACA), justices seemed inclined to move the case forward and hear the merits. As we wrote last week, one question was whether the fact that the individual insurance mandate (in the form of a federal “tax”) could be overturned before it even went into effect.

Justices appeared skeptical that the Civil War-era Anti-Injunction Act alone precluded review of the controversial individual mandate. Some justices asked whether the mandate was truly a tax at all. The questions did not come from conservative justices alone; at least three liberal justices also raised the issue.

Tuesday will be the real action when arguments on the individual mandate occur. The lawyer for the government, the Solicitor General Donald Verrilli, has to do some fancy footwork now. After arguing (for all intents and purposes) that the mandate is not a tax with regard to the Anti-Injunction Act, he now has to argue that it is a tax to ensure the individual mandate is upheld. Severability and the Medicaid expansion arguments are later in the week.

The questioning by liberal justices is not necessarily a signal that the mandate is in trouble. As we told you earlier, some conservative legal scholars have argued that the court might very well uphold its constitutionality as a reasonable exercise of interstate commerce. And the swing vote may or may not be the traditional one: Anthony Kennedy. Scholars suggest that either or both Chief Justice John Roberts and Justice Antonin Scalia could be sympathetic to an expanded view of regulation of economic activity under the commerce clause. Let’s see if they telegraph their views today.

Marc Ryan

Marc S. Ryan serves as MedHOK’s Chief Strategy and Compliance Officer. During his career, Marc has served a number of health plans in executive-level regulatory, compliance, business development, and operations roles. He has launched and operated plans with Medicare, Medicaid, Commercial and Exchange lines of business. Marc was the Secretary of Policy and Management and State Budget Director of Connecticut, where he oversaw all aspects of state budgeting and management. In this role, Marc created the state’s Medicaid and SCHIP managed care programs and oversaw its state employee and retiree health plans. He also created the state’s long-term care continuum program. Marc was nominated by then HHS Secretary Tommy Thompson to serve on a panel of state program experts to advise CMS on aspects of Medicare Part D implementation. He also was nominated by Florida’s Medicaid Secretary to serve on the state’s Medicaid Reform advisory panel.

Marc graduated cum laude from the Edmund A. Walsh School of Foreign Service at Georgetown University with a Bachelor of Science in Foreign Service. He received a Master of Public Administration, specializing in local government management and managed healthcare, from the University of New Haven. He was inducted into Sigma Beta Delta, a national honor society for business, management, and administration.

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