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Professor Mark Hall reacts to SCOTUS decision on Affordable Care Act

Professor Mark Hall

Professor Mark Hall

The United States Supreme Court announced its landmark decision on the Affordable Care Act on Thursday, June 28. Wake Forest University Law and Public Health Professor Mark Hall was the lead preparer on a brief filed with the high court along with 103 other law professors in support of the ACA’s individual mandate. He also had the good fortune of being able to attend live the two days of oral arguments from lawyers on both sides in front of the high court.  And three years ago, he was the first person in the country to write an extended analysis of the constitutionality of the mandate, which was used by the Senate to help support the case of enacting the mandate. Following are excerpts from an interview he did this morning with Ed Scannell of News 14 Carolina.

 Q: What is your broad reaction to today’s ruling?

 A: “It’s a big victory for President Obama. For those who like the law and the protections it offers, it’s a big win for them. The court upheld the law in its entirety meaning the provisions already in place can remain and the provisions that are due to take effect in 2014 will go into effect.”

 Q: Of note on the individual mandate, Justice John Roberts interpretated in the majority opinion that while Congress he felt did not have authority to issue the mandate under regulations of commerce, it did so under its ability to tax. Talk about that distinction.

A: “That was a bit of a surprise. Most people did not expect the court to uphold the mandate as a tax. Most of the debate is about whether it was a valid regulation of commerce. And in fact the court decided the mandate is not a valid exercise of the commerce power. But Chief Justice Roberts walked a fine line and on this question he sort of split the baby as King Solomon did in the Bible by saying on one the hand it’s not a regulation on the other hand we give every benefit of the doubt to Congress particularly in areas of social and economic legislation. So if its possible to view this as a tax that’s the way we look at it in order to uphold it.”

Q: Put in perspective the importance of this one mandate to the entire law.

A: “Well it’s been called the keystone or lynchpin to the entire law, which I think is accurate because it makes all the other pieces into place. It’s not simply that we get everybody covered because the law in fact doesn’t cover everyone, there will still be 20 million people without insurance. But the law requires insurance companies to accept everyone at average community rates, which means covering everyone’s pre-existing conditions. And those are critical features of the law that benefit everybody. Even if you have insurance, you can be assured you won’t lose your insurance if you change jobs or get out of a bad marriage, you can get back in and get covered and move on with your life. That’s the type of fundamental freedom we haven’t enjoyed in this country before. So that key part of the law, the part that assures everybody can be covered, doesn’t work unless you require everybody who can afford it to get coverage. If you just let people sit on the sidelines and buy insurance on the way to the hospital, the market would collapse.  The individual mandate doesn’t apply if the insurance would cost more than 8 percent of your income. A lot of people will be able to afford insurance now because they will get subsidies from the government or support from their employer. But if you fall through cracks you don’t have to pay tax or get insurance. Right now we have 50 million people uninsured so reducing that to 20 million is a major accomplishment.”

 Q: As someone who led this effort to write this amicus brief about the individual mandate, why was this important to you?

 A: I feel like in the core provisions there are a lot of things that could be criticized about the Affordable Care Act. It was said wisely once that no person should see how laws or sausage is made because you don’t really want to know what is in there because it starts to look a little bit unsavory. If you look at the big picture of what the law does it preserves the private insurance market rather than replacing it with some type of government-run insurance. It does so in a way that preserves people’s choice of insurance and it affords these fundamental protections of your ability to get insurance and afford insurance, which we are the only developed country in the world that has previously lacked those kinds of protections. I think it’s a major piece of social welfare legislation that we will all benefit from and future generations will benefit from. However, messy, complicated and contentious it was it was important to make sure the in some form survived and I’m pleased to announce that’s what has happened today.