“If the lawyers are having fun, what does that say about federal health care reform?” joked the physician to his health care lawyer. “Democracy at work and a new car,” retorted the lawyer.

Joking aside for the moment, the federal effort to reform the American health care system in March 2010, ended up being questioned as unconstitutional during an unprecedented three days of oral argument before the Supreme Court in the last week of March 2012. For health care and constitutional lawyers, admittedly, it was a fun week. But that fun surely was felt only by a few given the millions, if not billions, of dollars in time and money that have been spent these past two years by federal, state, and local governments, health care providers, hospitals, health insurers, and the entire health care industry working to decipher and begin implementation of a rather complex system of health insurance reform, massive Medicaid expansion, and test programs such as accountable care organizations.

The uncertainty Congress left the country with when rushing to enact the law in a partisan manner has come home to roost. The nine Supreme Court Justices met secretly after oral arguments on Friday, March 30, 2012 and cast their first votes on whether to uphold the law, strike parts of it, or strike all of it. We now must wait and see for a few months what the Justices decided.

In a nutshell, there were four main issues before the Court. The first was a threshold issue and asked the question whether the penalty for failure to comply with the individual mandate to purchase health insurance was a “tax” assessed by Congress. An official “yes” answer would mean the case before the court was premature because an arcane federal statute, the Anti-Injunction Act, basically says a federal tax cannot be challenged in the courts until actually paid by an individual. Any tax associated with the individual mandate would not occur until after 2014 when the Internal Revenue Service intends to begin collecting penalties. So, in essence the case would be moot until that time. This would be an easy out right now for the Court should it decide the case cannot be brought until after taxes are imposed.

If the Court gets past the threshold issue, and likely will do so, the second issue focuses on the constitutionality of the individual mandate. In sum, for the federal government to do anything, that power to do something must be spelled out in the U.S. Constitution. Unlike the states, the federal government does not possess a general police power to regulate for the welfare of its residents. So without the benefit of a general police power, the federal government argued that the Commerce Clause provides Congress with the power to require individuals to purchase health insurance because insurance is simply part of regular commerce. The states and business representatives challenging the law contended the Commerce Clause only permits Congress to restrict or regulate commercial activity, not to force someone to buy this or that.

From a pure insurance perspective, the mandate is significant because it guards against the insurance concept of adverse selection, that is, only people needing health insurance will buy it. Without people buying insurance who do not use the benefit, it would be far more expensive to purchase health insurance, at least in theory. There are many subtle and even constitutional issues associated with the individual mandate and the use of health insurance to finance the delivery of health care services, but the sole focus before the Court is only the Commerce Clause question of whether Congress can require people to buy insurance.

The third issue that not much attention had been paid to before oral argument was the issue of severability. Basically, as the argument goes, if the individual mandate is deemed unconstitutional, and if the mandate is a key component of the statutory scheme, the entire law must be struck down, not just the individual mandate. Legal commentators were doubtful the Court would go that far, but after oral argument, this issue seemed to generate only more uncertainty. Some of the Justices raised questions about the financial viability of the law if the mandate is declared unconstitutional.

The fourth issue, lesser publicized but as significant as the individual mandate, addressed the constitutionality of the Medicaid expansion. By 2014, federal reform expands eligibility requirements for the Medicaid program (the federal medical recipient program for certain categories of financial or medical need). This is different from the Medicare program (the federal medical beneficiary program for the elderly). Because administration of the Medicaid program falls to state governments, the new Medicaid eligibility standard would require states to enroll individuals under age 65 whose income is at or less than 133% of the federal poverty level (currently set at an annual income of less than $14,856 for an individual and $30,657 for a family of four). With the new standard in place, the Medicaid program is expected to grow in size by 16 million recipients nationally. While the federal government is requiring itself to fund that expansion initially, the cost-sharing by the states increases over time. A group of states challenged the Medicaid expansion and argued that this would be an unprecedented expansion of the program and the all or nothing approach forced on them by Congress gives them no ability to opt out of the expansion. In other words, if a state did not want to expand its state run program, it would lose all federal dollars for its entire Medicaid program and essentially would have to shut it down or go it alone.

While analysis of questions by the Justices at an oral argument is not a solid indicator of how the Court will rule on any particular issue, commentators surmise that the Court, similar to the divided Congress, also will rule in a divided manner along the lines of individual conservative or liberal constitutional beliefs. For a bit of Constitutional Law 101, the conservative or liberal judicial philosophies are not exactly the same as being labeled a member of a particular political party. If a judge is considered conservative, he or she generally believes in deferring to legislative or executive authority as long as that authority clearly flows from a constitution like the U.S. Constitution. A judge with more liberal leaning generally supports the protection of individual rights and may not be as deferential to legislative schemes that hinder individual rights flowing either explicitly or implicitly from a constitution. Here, with federal health care reform, the main constitutional question is whether the federal government had the power to do what it did. The conservative philosophy is skeptical whether the power exists, and the liberal philosophy is not so skeptical and favors an expanded view of federal power if individuals obtain more rights under reform. The distinction, obviously, is not clear-cut and can be rather complex.

So what does all this mean? In short, there either will be legal change coming for part or all of the law, or nothing will change. There may very well be opportunity too for federal and state governments to revisit the concept of health care reform and make sound and more systemic changes. For example, there were many things Congress did not do that it probably should have done such as focus first on price transparency for health care items or services, get better data on the overlooked aspect of rapidly increasing out-of-pocket insurance costs, and consider a broader approach to health care system reform instead of the limited focus on insurance reform.

Understandably, hindsight is not worth much in this debate. Our elected officials could step forward and rework the legislation, but that effort is highly unlikely. We all apparently will just sit and wait, respectfully, for our nine Justices to tell us how and why they voted.