Supreme Test for Health Law
The state coalition, led by Florida's attorney general, prevailed in August before the 11th U.S. Circuit Court of Appeals in Atlanta. It ruled the mandate unconstitutional in a 207-page opinion, declaring it "breathtaking in its expansive scope."
That decision proved to be the outlier among the four appeals courts to hear separate challenges to the mandate. In Richmond, Va., the Fourth Circuit dismissed a suit as premature, holding that challengers must wait until the mandate takes effect in 2014. The Cincinnati-based Sixth Circuit and the District of Columbia Circuit in Washington both handed the administration outright victories, upholding the mandate as a rational exercise of congressional authority to regulate the national health-care market.
Those decisions particularly stung the right, because they included opinions from influential conservative judges whose records show little ideological affinity for the Obama administration. With his June concurring opinion, Sixth Circuit Judge Jeffrey Sutton, one of several young conservatives selected by former President George W. Bush, became the first Republican-appointed judge to uphold the mandate. Last week, Judge Laurence Silberman of the District of Columbia Circuit not only upheld the mandate, but embraced the New Deal-era precedents that expanded the power of the federal government to regulate the economy.
While a new and "intrusive exercise" of congressional power, Judge Silberman likened the mandate to other transformative federal laws the Supreme Court has upheld—including the Civil Rights Act of 1964, the Controlled Substances Act of 1970 and the New Deal agricultural program that generated a landmark ruling, Wickard v. Filburn, affirming congressional power to address national economic problems.
At the same time, the political climate surrounding the law is growing chillier. Voters in Ohio last week overwhelmingly rejected the mandate, a symbolic victory because federal law would still supercede it.
Public opinion was almost evenly divided on the law for more than a year after its passage, but has recently turned. A poll released last month by the nonpartisan Kaiser Family Foundation found that 51% of respondents had an unfavorable opinion and only 34% felt favorably about the law. That was the first time since March 2010 that a majority in the monthly poll said they disliked the law as a whole.
In addition to the individual mandate, the court said it would review the law's expansion of the federal-state Medicaid program, which states said violated their sovereignty. It also will consider whether the balance of the law would stand even if the individual mandate were voided, as the 11th Circuit ruled.
And the Supreme Court even left open the possibility that it might not rule on the merits of the law at all, saying it would consider arguments endorsed by one appellate court that any suit should wait until the mandate goes into effect in 2014.
The administration has long presented the individual mandate as just one of a set of rules designed to provide health coverage to many of the 50 million Americans who lack it.
The act prohibits insurance carriers from discriminating against those with pre-existing medical conditions, and it requires that coverage be universally available. Those features are only feasible, the government says, if the individual mandate expands the insurance pool to include younger, healthier Americans who might otherwise forgo carrying insurance until they fall ill or are injured.
Insurance rates have continued to rise since portions of the law have taken effect. The Kaiser Family Foundation estimated in September that employee premiums rose 8% in 2011 for individual workers, and 9% for workers who purchased family plans. Mercer, a human resources consulting firm, estimated around the same time that the average cost of employee health coverage will go up another 5.4% in 2012.
Democrats in Congress mistakenly believed they could win some GOP support by modeling the Affordable Care Act on the Massachusetts health overhaul signed into law by former Gov. Mitt Romney, now a leading Republican candidate for president.
Republican critics of the federal law, including Mr. Romney, essentially argue that Congress went too far—and not far enough. They say that while the Constitution limits federal regulatory power, states retain such broad authority over their own affairs that they can enact plans like that in Massachusetts. Thus, there could be 50 identical state plans, but not a single federal one.
Alternatively, critics concede that Congress could establish a public program expanding Medicare to all Americans and raising the money through a tax like the one people already pay to provide Medicare to those 65 and older. The reason is that the Constitution gives Congress power to tax and spend to promote the nation's "general welfare."
Challengers assert that the Affordable Care Act, far from regulating commerce, compels those who prefer to stay entirely outside the marketplace to enter it, thereby impinging on their liberty. The government maintains that because everyone can be expected to need health care, the measure simply regulates the method for financing it.
The health insurance industry has maintained that the individual mandate is an essential component of the law, but representatives have long refused to speculate on what might happen if the individual mandate is removed from the law. "There was widespread agreement throughout the health-care reform discussions that the insurance market reforms in the Affordable Care Act could only work if all Americans have health care coverage," said Robert Zirkelbach, a spokesman for the America's Health Insurance Plans association.
If the court strikes down the mandate, the vote is likely to be 5-4. Based on their prior writings, the four liberal justices will almost surely consider it to be a policy choice for Congress rather than a question of individual liberty.
The suspense resides on the court's right wing, where scholars say that based on prior writings, only Justice Clarence Thomas is virtually certain to consider the mandate unconstitutional. Most speculation surrounds Justice Anthony Kennedy, who has sometimes sided with liberals, and Chief Justice John Roberts, who last year joined liberal Justice Stephen Breyer in affirming broad federal authority over policies Congress deems "necessary and proper."
While a ruling isn't likely to change partisan views of the law, it could influence independent voters, said Bruce Cain, director of the University of California Washington Center. "A win at the court has a bit of a halo effect for Obama," Mr. Cain said, but a loss could damage his credibility with independents.