Health Care Reform Gamble Headed to Supreme Court
The Obama Administration has declined to seek an en banc review of an 11th Circuit panel decision invalidating its signature health care reform legislation. Instead, the Administration has filed an appeal directly to the United States Supreme Court. The move means that the constitutionality of the “individual mandate” at the core of the legislation will almost certainly be decided before the 2012 election.
The legal conflict has already gone much further than many health care reform advocates ever thought it would. The early reaction to potential legal challenges was to laugh them off. But, led by law professors like Randy Barnett (who blogs at the Volokh Conspiracy), opponents of the individual mandate made a powerful argument that the attempt to force consumers to affirmatively buy a product exceeds even the extremely loose bounds of the Constitution’s Commerce Clause.
Appellate courts have split on largely partisan lines, with Democratic appointees mostly upholding the law and Republican appointees striking it down. If the pattern continues, prospects for the law seem dim at the Supreme Court. Also, the extreme reach of the Commerce Clause power in the New Deal era has been gradually eroding. During the New Deal, the Court in Wickard v. Filburn upheld government regulations restricting the growing of wheat even when the wheat in question was only used on the farm where it was grown. The Court noted that even the refusal to enter the wheat into the market nonetheless affected interstate commerce in wheat by reducing the aggregate demand in that market; to wit, if the farmer had complied with the regulations restricting his growing of wheat, he would have had to buy it on the open market instead, thus his non-compliance affected interstate commerce and entered into the realm of Congress’ power.
The analogy to health care reform is easy to see. A consumer’s decision not to purchase health insurance affects the market for health insurance and, given the inevitability that everyone will use health care in some form regardless of whether they have insurance or not, that decision not to purchase insurance affects the interstate market in health care itself. But in more recent cases such as United States v. Morrison and United States v. Lopez, the Supreme Court narrowed the reach of the Commerce Clause to regulate purely local transactions or personal relationships. For example, in Lopez the Court held that a federal law restricting possession of guns near schools did not come within the scope of the Commerce Clause in the absence of a specific finding that the specific gun in question had passed through interstate (as opposed to purely local) commerce.
Again, the link to health care is easily apparent. The decision not to purchase a product is a personal decision, and its effects on interstate commerce are minor and attenuated by other factors. The Commerce Clause cannot reach that far without becoming so all-encompassing as to effectively render literally everything in the world (such as the decision on whether to buy green beans for dinner) within the regulatory jurisdiction of the government. Such a holding would be incompatible with any meaningful concept of personal economic liberty or even personal privacy. The government could simply directly mandate what products individuals must and must not buy. If the government can order you to buy specific health insurance policies, then the government could literally write your grocery list as well. Framed that way, no majority on the Supreme Court is likely to uphold it.
The main recent case echoing Wickard‘s broad vision of the Commerce Clause was Gonzales v. Raich, where the court found that California’s legalization of medical marijuana affected interstate commerce and thus came within Congress’ authority to ban marijuana possession anyway. But while Raich gives hope to the defenders of health care reform, it may well be illusory. The specific coalition in Raich indicates a strong likelihood that this was an anti-drug decision, not a decision in favor of a sweeping return to a broad Commerce Clause power. It is difficult to see any of the Court’s conservative-leaning members, including Justice Kennedy, agreeing to take the logic of Raich to the extreme of giving Congress power over individual decisions not to buy something.
So if the Supreme Court is unfriendly ground for health care reform, why is the Obama Administration pushing for a quick review? The most likely reason is two-fold: First, the Administration may believe that it is likely to use and wants to be able to use the issue as a campaign issue in the 2012 election. Second, the Administration may believe that its reelection prospects are endangers, and wants at least to commit its gamble before the 2012 elections rather than risking the law coming up under President Romney. Either way, the Administration may simply get more out of a bad hand by pressing the issue now rather than later.
19 Responses to “Health Care Reform Gamble Headed to Supreme Court”
“The most likely reason is two-fold: First, the Administration may believe that it is likely to use and wants to be able to use the issue as a campaign issue in the 2012 election. Second, the Administration may believe that its reelection prospects are endangers, and wants at least to commit its gamble before the 2012 elections rather than risking the law coming up under President Romney.”
As I contemplate those 2 possibilities, I certainly come down on the side of it being related to his reelection campaign rather than selflessly trying to hit some sort of strategic sacrifice fly.
Nonetheless, I am going to guess he actually wants to get it OFF the table as a campaign issue for the other side rather than him planning to use individual mandate
as an argument benefitting Obama in front of any voters except possibly the 8-10 votes he already has locked up here at TMV.
I commend Obama on making a bold move for a change. I don’t like most of the HCR bill, except I do like the mandate, which is the most sensible part of the bill, from an insurance 101 viewpoint.
I commend your command of actuarial science Mr. Duck, but if it turns out he actually wants to go at this in his campaign…….According to a CNN/Opinion Research Corporation poll released Thursday, by a 54 to 44 percent margin, the public opposes the individual mandate in the law, which is scheduled to take effect in the next few years…….I will buy you a new plastic pond for your patio.
Screw Insurance Companies.
Because they have been screwing this country for decades.
Healthcare reform should be cradle to grave National Healthcare and as far as I’m concerned the entire healthcare industry has gotten way out of hand and needs to be nationalized in one fell swoop.
Let the Supreme Court stick THAT JUDICIAL LEGISLATION where the sun don’t shine.
Regardless of what Obama’s political motivations may have been, I commend him for doing the right thing. The constitutionality issue needs to be resolved before we waste more money implementing something that may be scrapped. Since we all know it would end up at the Supreme Court, getting there as fast as possible is the right thing to do.
I’m giving the individual mandate a 50/50 chance at the Supreme court. Despite the conservative majority, there will be immense pressure on them to uphold the law, so it should be interesting to see it play out. Of course, that’s just my completely non-expert opinion.
I do not believe that the Supreme Court has the jurisdiction to decide this matter. I do not believe it was the founding father’s intention that they should decide it.
All this stupid indecision and political division in congress is giving the damned supreme court to much power. Congress needs to work these things out on their on, not refer them off to the supreme court ans some kind of sports referee. There is far to much at stake.
Reading more on this at VC, if it turns out Obama is doing this to ensure his team does the arguing, Adler makes it sound like he better retool his legal team first……..The low point for the government was when Judges Kavanaugh and Silberman pressed counsel for about 10 minutes for a single example of any economic mandate that would be unconstitutional under the government’s theory of constitutionality.
Government counsel could not supply any answer.
Assuming the millions of new customers the HCR law will bring to the HC industry…. SCOTUS will for sure uphold.
@ShannonLeee
You nailed it.
I came from the UK and lived in the US for 8 years, 2 of which I underwent chemotherapy. I had my university’s medical insurance which I found out had a max payout of 50,000 USD. My family almost became bankrupt paying to keep their child alive. My care was fantastic, and if I had been in the UK I am not certain I would have lived. However, even though the UK’s system is far from perfect and the US system may have saved my life I would choose the UK’s system every time. After I finished my therapy I could not get medical insurance without a max payout for less than $900 a month. There is a reason why medical costs are the number one cause of bankruptcy (78% of which have insurance). America is based on the idea that every man is created equal. If it is know that everyman will NEED health care and not everyone can have it, how can that premise hold true.
I do not know how one would fix the health system in America, but, right now this bill makes a start, and that’s better than nothing. I hope it makes it through the courts.
Whether you are pro or con, the court will only be ruling on the mandate question as far as I know. With no mandate a terrible HC plan becomes a disaster.
Remember “Repeal AND replace”?
Now it’s just “REPEAL REPEAL REPEAL”.
Responsible governing. But, of course, it’s all about preserving the constitution…
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Leave it to Logan Penza to be provocative, stir up crap and torque off the Pope on any given Sunday.
Which I like.
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