Under the looming prospect that the Supreme Court will render the final verdict on President Barack Obama's healthcare reform law, a majority led by an influential conservative judge last week upheld the law's insurance mandate while a state electorate rejected it.
A swing and a miss
Judge's ruling draws reaction from both sides
Senior Judge Laurence Silberman, writing for a 2-1 majority in the U.S. Court of Appeals for the District of Columbia, upheld the Patient Protection and Affordable Care Act's controversial requirement that nearly all Americans purchase insurance or pay a tax penalty in 2014. The 31-page opinion in Seven-Sky v. Holder came Nov. 8, two days before the Supreme Court met to discuss whether to grant oral arguments on the reform law during the spring 2012 term.
Silberman's ruling disappointed many conservatives and buoyed supporters of the law because of the judge's well-known credentials on the right, including his 2007 opinion striking down Washington, D.C.'s gun ban, which led to the Supreme Court's first-ever finding that the Second Amendment protects a private individual's right to bear arms.
Reform-law proponents said Silberman's unqualified finding that Congress had the constitutional power to force Americans to buy insurance could influence two potential conservative swing votes on the Supreme Court: justices Antonin Scalia and Anthony Kennedy, who sided with a majority upholding Congress' power to regulate activity that only indirectly affected interstate commerce in a 2005 decision involving medical marijuana.
“A single individual need not even be engaged in any economic activity—i.e. not participating in any local or interstate market—so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated,” Silberman wrote, quoting language directly from Scalia's own concurring opinion in the marijuana case.
Opponents of the reform law, meanwhile, said the Seven-Sky ruling only widened the split in the circuits and made it more likely the Supreme Court would take up the issue. In June, the 6th Circuit Court of Appeals in Cincinnati upheld the individual mandate, while the 11th Circuit Court of Appeals in Atlanta struck it down two months later.
Silberman also wrote that the sense that requiring Americans to buy a good or services is “an intrusive exercise of legislative power surely explains why Congress has not used this authority before—but that seems to us a political judgment rather than a recognition of constitutional limitations.” Voters in Ohio last week provided a new snapshot of the politics of the issue.
Just hours after the Seven-Sky ruling was released, 66% of Ohio voters approved a state constitutional amendment that states “no law or rule shall compel, directly or indirectly, any person, employer or healthcare providers to participate in a healthcare system.”
Even though the supremacy of federal law under the U.S. Constitution would likely prevent the amendment from having any force, observers said the result was politically important—particularly because the same Nov. 8 ballot also brought out liberal-leaning voters to successfully overturn a state law limiting collective bargaining rights for union workers.
“That strengthens the point that this isn't some rabid, crazed electorate, as might be characterized in the press. People are still overwhelmingly against Obamacare,” said Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute. “In terms of national opinion, the mandate has been consistently and increasingly unpopular.”
As voters and judges sort out their opinions of the individual insurance-coverage mandate, healthcare providers are wasting no time adapting to the law's other provisions—particularly those dealing with payment reforms.
“Hospitals are already facing the proposition of a portion of their payments being withheld” because of pay-for-performance initiatives, said attorney Janice Anderson, a shareholder in the healthcare practice at Polsinelli Shughart in Chicago. “I frankly don't see any of that changing. … If for some reason the Supreme Court totally overruled the reform bill, I think portions of this would still stay or get re-enacted.”
A total of six petitions for oral arguments have been filed with the Supreme Court based on the rulings in three federal appeals courts, including the 11th and 6th circuits, as well as two rulings out of the 4th Circuit Court of Appeals in Richmond, Va., that dismissed challenges to the law based on standing and jurisdictional issues.
Edward White III, the senior attorney with the American Center for Law & Justice who argued the Seven-Sky case on behalf of reform-law opponents, said on Nov. 11 that the plaintiffs were still weighing appeal options. He said he was confident the group could submit briefs in time to make the spring 2012 oral argument calendar if that's the course that's chosen.
Although the case involves healthcare, White said the real issue is whether the individual mandate, if upheld, would erase all meaningful boundaries on congressional powers. “Once that principle is established, there is nothing stopping Congress from making all kinds of requirements of American citizens,” White said.
Indeed, Silberman's opinion acknowledged “some discomfort with the government's failure to advance any clear doctrinal principles limiting congressional mandates,” but added, “that difficulty is troubling, but not fatal.”
Neil Siegel, a professor of law and political science at Duke University who supports the healthcare-reform law, said his biggest criticism of how the administration has defended the law so far would be its lack of answer to that issue. “I do think it's important for the solicitor general at oral arguments to have an answer for when the Supreme Court asks this, because they will: What are the limits on Congress' power?”
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