The Supreme Court's Immigration Decision May Give Clues On The Upcoming Decision On The Affordable Care Act's Individual Mandate

Casey Stengel once advised that it is best not to make predictions, particularly about the future. So we will step into ill-advised territory with caution. Nevertheless, the Supreme Court's decision in Arizona v. United States on Monday June 25th may give clues about its thinking in the decision on the Affordable Care Act ("ACA"), now expected to be issued on Thursday, June 28th. We focus on the difficulty of challenging laws on their face prior to enforcement, known as "facial" challenges, as opposed to targeted challenges brought by specifically-harmed persons that focus on how a statute has been implemented, known as "as applied" challenges.

In looking at the Arizona immigration statute, called the "Support Our Law Enforcement andSafe Neighborhoods Act," the Court was faced with a facial challenge that would have prohibited four provisions of the law from going into effect. Centrist Justice Kennedy, writing for the Court, noted the need for "caution" about such pre-enforcement challenges. The Court then issued a narrowly focused decision, examining carefully where the state statute complimented or interfered with the federal immigration statutory scheme. At the same time, it made clear: "This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect." One such discussed potential future challenge might be a case that looks at whether the state's implementation of the law may have resulted in impermissible racial profiling.

There are important potential signs here for the upcoming ACA decision. In the public commentaries, much has been said about whether Congress had the power under the Commerce Clause to force people into commerce by dictating that everyone must buy health insurance, the so-called individual mandate...