Though many people are eager to hear the issue at the heart of the case, the individual insurance mandate, the Court is likely to start with a different issue––the ripeness of the challenge. Under the Anti-Injunction Act, the Court may find the challenge of the law to be premature, which will mean that the challengers will have to wait until there is a particularized injury––when individuals who refuse to buy insurance are actually penalized in 2014. In fact, that was the position of the Fourth Circuit in Liberty University v. Geithner, where the court dismissed a challenge to the law based on lack of subject-matter jurisdiction.
Essentially, the gravamen of the inquiry before the Court is whether Congress has the power pursuant its commerce clause to pass an act that mandates every individual to purchase health insurance or be subject to a penalty, which increases from year to year. As an alternative, the Court may also analyze whether the civil regulatory penalty qualifies as a tax and, therefore, can be authorized pursuant to the Taxing and Spending Clause of the Constitution. So far, the Sixth Circuit and the U.S. Court of Appeals for the District of Columbia Circuit have upheld the constitutionality of the health-care law on the merits.
In Thomas More Law Center v. Obama, the Sixth Circuit, focusing on “broad principles of economic practicality” and declining to distinguish between activity and inactivity, upheld the constitutionality of the health-care act. Similarly, the U.S. Court of Appeals for the District of Columbia Circuit in Seven-Sky v. Holder, reasoned that Supreme Court precedents did not “endorse the view that existing activity is some kind of a touchstone . . . to Commerce Clause regulation.” Moreover, Judge Silberman wrote that “[t]he right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.”
In contrast, the Eleventh Circuit has struck down the individual mandate. In Florida ex rel. Atty. Gen. v. U.S. Dept. of Health & Human Services, unlike the other circuits, the court reasoned that “the fact that Congress has never before exercised this [type of] authority is telling.” The court concluded that such governmental action “is unprecedented, lacks cognizable limits, and imperils our federalist structure.” Interestingly enough, this is the case that the Supreme Court will hear in March, 2012.
The justices will use 90 minutes of the allocated time to hear arguments as to whether the individual mandate provision can be severed from the rest of the act as to allow the remaining provisions to stay valid. The Supreme Court will also decide the constitutionality of the provisions of the act dealing with Medicaid expansion programs for providing insurance for the poor. Many states have argued that such an expansion is unreasonable in light of the current economic crisis.
The Supreme Court’s decision will certainly have immense implications in the health-care arena. Moreover, the decision of this case is likely to have an enormous effect on the role of the government and the judiciary as it has been perceived for many decades.
Keywords: health law, litigation, federal, health care
—Norayr Zurabyan, Loyola Law School, Los Angeles