Lawyers Move Obama Health Care Battle to Supreme Court

These nine justices may yet have the final word on universal health care

On Monday the Obama administration declined to ask for a full appeal in the 11th Circuit Court in Atlanta, ensuring a decision by the Supreme Court before June 2012. In other words, the administration will, for better or worse, have a definitive answer on the constitutionality of the plan right as the election campaign changes gears.

The issue at stake is whether the  power of congress to “regulate commerce” can be used to compel every American with taxable income to buy health insurance by 2014 or face a tax penalty. The 2-1 decision in the Atlanta court was the first declaration of the individual mandate’s unconstitutionality.

Meanwhile, the administration’s lawyers argue that this requirement is a reasonable and necessary regulation to prevent freeloaders from taking advantage of the taxpayers. The new law would also require insurers to offer coverage to persons who have preexisting medical conditions, and would require states to expand the Medicaid program providing health care for low-income persons. Both provisions drew criticism from Republicans.

In addition to the central issue of the individual mandate, the justices may also consider the decision of the 4th Circuit Court in Virginia to throw out a challenge by citing a federal law that bans taxpayers from going to court until they have paid the disputed tax and filed for a refund.  What this could mean is that potentially no court can rule on the constitutionality of the Affordable Care Act until after 2014, when the first taxpayer pays the penalty.

There are, however, several other courts, including the 11th Circuit, that claim the penalty is not a “tax” and is therefore legally subject to a challenge before it takes effect.

All we can say to the interested parties, uninsured Americans and small businesses alike, is: watch this space.

Swords have been drawn; let the battle commence.